Denise Lewis-Johnson
~ Courts ‘must not succumb to temptation to reform laws’ ~
NASSAU, The Bahamas--A Supreme Court judge has ruled that though a woman who filed for divorce claimed she felt like a rape victim “for an extensive period of time” when her spouse had sex with her, as it stands there can be no rape in marriage in The Bahamas.
The ruling was made by Supreme Court Justice Denise Lewis-Johnson in a divorce case on Monday.
Finding the actions of a husband who repeatedly forced himself on his wife “cruel”, Lewis-Johnson granted the woman a divorce.
The couple was married in 2005 and share a son.
The woman filed for divorce on the basis of cruelty in June 2021. The woman alleged her husband subjected her to emotional and mental abuse throughout the marriage by repeatedly having sex with her against her will and indicated she was “afraid he would one day snap”.
The husband denied the allegation, countering that he wanted the marriage dissolved because his wife had treated him with cruelty by not meeting his sexual needs, not attending church regularly and refusing to attend marriage counselling with him.
He said he was not an adulterer, did not drink, smoke or swear, paid the household bills and nursed her back to health after two major surgeries with “patience, love, care and attention”.
He also said it was his belief that a “wife’s obligation is to have sex with her husband”.
“The last time the respondent climbed on top of the petitioner was April 18, 2021, and the following morning, the petitioner suffered a meltdown at work,” the ruling noted.
“The petitioner stated that the event which transpired on April 18, 2021, felt like an out-of-body experience.”
The woman indicated that sexual intercourse with her husband had become “a chore and lacked intimacy”.
She alleged her husband would come home, “lubricate himself, take his pleasure and leave”.
“The petitioner alleged that it was standard for the respondent to come home, ask for sex and, if she refused, lubricate, (forcefully penetrate her) have sex with her and when he was satisfied, roll over, watch television, use his computer or go to sleep,” the document stated.
“The petitioner alleged that the respondent did not care if she consented or said no, but would force her and once he climaxed and satisfied himself, he would ‘get off her’.”
The woman claimed that his behaviour and treatment toward her has severely damaged her physical, emotional and mental health.
While noting that the courts “cannot and must not succumb to the temptation to reform laws”, Lewis-Johnson said the husband ignoring his wife’s “feeling of not being a willing participant in sexual intercourse” met the grounds for cruelty.
“The petitioner’s evidence was heavily weighed on acts of sexual intercourse between the parties that she described as acts of rape by the respondent,” she 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.”
Lewis-Johnson said the issue raised by the parties was of non-consensual and forced intercourse.
This – coupled with the use of the word rape – required the court to consider the term in the context of Bahamian matrimonial laws, she said.
“The court accepts that rape is a most heinous act of cruelty and a malicious violation of a person,” Lewis-Johnson said.
“However, on a strict reading of the laws of The Bahamas, there is no rape in marriage. Pursuant to section three of the Sexual Offences Act, the law does not allow for one spouse to rape the other.
“In this place, we interpret existing laws and apply them. We cannot and must not succumb to the temptation to reform laws.”
Lewis-Johnson said the husband is “correct” in noting that Bahamian laws provide for sex in a marriage. She said there is a right for consummation.
“I am, however, of the view that it ought not to be taken by force and [be – Ed.] painful to one party,” the justice said.
“It was clear from his evidence that he lacked concern and did not appreciate how his actions impacted the petitioner. The courts accepts his evidence of meeting the financial needs of the family, of loyalty, fidelity and commitment.
“However, given the evidence in its totality, I find that the respondent was cruel to the petitioner.”
She added, “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 feeling of being violated – meets the standard of cruelty under section 16(1) of the Matrimonial Causes Act.”
It has been five years since the United Nations Special Rapporteur on Violence Against Women Dubravka Šimonović pointed out that The Bahamas has failed to live up to obligations under the UN’s Convention on the Elimination of All Forms of Discrimination Against Women as it has failed to criminalise all forms of marital rape.
The Bahamas ratified the convention in October 1993.
On Monday, Minister of Social Services Obie Wilchcombe said he doesn’t see “why we wouldn’t” address marital rape in the country.
He said The Bahamas has been idle on the issue. ~ The Nassau Guardian ~
