The Tribune

By TANEKA THOMPSON

Tribune News Editor

tmthompson@tribunemedia.net 

WHILE ruling that a husband was cruel for forcing his wife to have sex against her will on numerous occasions, a Supreme Court justice has found that “there is no rape in marriage” under Bahamian law.

Justice J Denise Lewis-Johnson’s ruling was handed down on August 29 and involves a divorce case in which a woman claimed her husband would force intercourse and made her feel like a “rape victim” throughout their marriage.

The ruling will no doubt add more fuel to public discourse on the controversial issue.

The case centres around a woman’s divorce petition in which she sought to end her marriage on the grounds of cruel treatment. The couple was married for more than 15 years and have one child.

According to Justice Lewis-Johnson’s ruling, the woman claimed her husband subjected her to emotional and mental abuse throughout the marriage.

The judge noted the woman claimed she “has felt like a rape victim during the ordeal of sexual intercourse with the respondent.”

 The woman said after the last time they had sex on a day in 2021, she suffered a meltdown at work the next day.

 The woman said the events of that day in question “felt like an out of body experience” adding that sex with her husband had become a “chore” and “lacked intimacy”.

 She also alleged that during the marriage, her husband would come home, “lubricate himself, take his pleasure and leave.”

 The ruling continued: “The petitioner alleged that it was standard for the respondent to come home, ask for sex and if she refused, (forcefully penetrate her) have sex with her and when he was satisfied, roll over, watch television, use his computer or go to sleep.”

 The woman claimed her husband “did not care” if she consented or said no. She added his behaviour damaged her physical, emotional and mental health.

 The woman also said after an argument a few weeks after she had an operation, her husband followed her to the bathroom. When she closed the bathroom door, the respondent “pushed” it forcefully and damaged the knob, leaving her afraid of what he might do, she said.

 In his response, the respondent claimed he was the one treated cruelly by his wife.

 He said he waited until marriage to have sex out of respect for his wife, but during the union his sexual needs “were not being met” due to his wife’s job obligations. He said it is his belief that a “wife’s obligation is to have sex with her husband.”

He said after his wife stopped all sexual obligations in 2021, he remained faithful. He said his wife never told him she felt like a rape victim, adding this contributed to him feeling mentally abused.

He also said his wife refused to attend counselling sessions with him and a priest.

In his defense, he said he does not drink, smoke or use drugs and paid the household bills.

He said he nursed his wife back to health after two major surgeries, but faulted her for not keeping the home clean as he would “often return home to a dirty house”. He also said she portrayed herself as a religious woman before marriage, but did not attend church regularly while he is active in his church.

Regarding the argument which led to his wife seeking retreat in the bathroom, he said it was “disrespectful” for her to walk away while he was talking and her slamming the door in his face made him upset.

He said when his wife left the matrimonial home in mid-2021, he was “ill, alone and confused” as he had always been there for her in critical situations.

While she granted the couple’s divorce and accepted the petitioner’s evidence, the judge said the issue raised by the parties of non-consensual and forced intercourse along with the word “rape” required the court to consider the term in context of Bahamian marriage laws.

“The petitioner’s evidence was heavily weighted on acts of sexual intercourse between the parties that she described as acts of rape by the respondent,” the judge wrote. “I will not recount her evidence save to say that she states that as a result of the respondent’s behaviour, she felt like a rape victim. She further alleges that her physical and mental health have been negatively affected.”

The judge wrote that while the court accepts that rape is a “most heinous act of cruelty”, there is “no rape in marriage” under a strict reading of Bahamian law.

“Pursuant to Section 3 of the Sexual Offences Act, the law does not allow for one spouse to rape the other,” she noted. “In this place we interpret existing laws and apply them, we cannot and must not succumb to the temptation to reform laws.”

However the judge also found that the petitioner met the threshold for proving she suffered cruelty in the marriage and thus satisfied the grounds for a divorce under Section 16(1) of the Matrimonial Causes Act.

The judge also said: “The respondent is correct that Bahamian law provides for sex in marriage between the parties as a right; there must be consummation. I am however of the view that it ought not to be taken by force and is painful to one party. It was clear from his evidence that he lacked concern and did not appreciate how his actions impacted the petitioner.”

In her ruling granting the divorce, the judge noted that while she accepted the husband’s evidence that he met the financial needs of the family and was loyal and committed to his wife, given the evidence it was clear he was “cruel” to his spouse.

“Notwithstanding the respondent’s belief that his actions were his right in marriage, I find the manner in which he carried out that right—forcing himself on his wife, his ignoring her feeling of not being a willing participant in intercourse resulting in mental harm to the petitioner and a feeling of being violated—meets the standard of cruelty under Section 16(1) of the Matrimonial Causes Act,” the judge ruled.

Marital rape is currently not a crime in The Bahamas, however there have been renewed calls for the Davis administration to address this gap in legislation.