The government is proposing a piece of legislation that criminalizes unwelcomed sex between spouses. They claim that this bill will protect women and strengthen the marital institution. When asked to produce empirical data to justify this piece of proposed legislation, the Social Services Minister launched into a tirade about the amount of live births to single women which was an attack on the social and cultural sensibilities of many Bahamian women.
I believe that a man can rape his wife. I believe that rape is a crime of violence. I do not believe that the marital rape law is the solution to sexual abuse of a spouse.
This proposed law makes sexual intercourse between a husband and wife negotiable and is only legal if and when the wife says so. To hell with the teachings of the apostle Paul in 1 Corinthians chapter 7, verses 1-4. According to the government, the body of the wife does not belong to the husband and vice versa. The major foundation upon which the marital contract is built is being eliminated, but Minister Butler insists that, notwithstanding this, this bill will strengthen marriage and protect women. I disagree.
No single man is inclined to enter a state sanctioned institution where intimacy is akin to having a noose placed around his neck and his sexual partner is holding the rope and can pull it at anytime because the state empowered her to do so. This circumstance is a disincentive to enter the marriage institution and threatens the traditional family unit, the building block of any society.
A married man, faced with the specter of this law, may opt for an extra-marital affair if his wife chooses to use her body as a weapon against him. Further, the reality of a husband being imprisoned; the prospect of being separated from and possibly losing his worldly possessions; the certainty of the destruction of his reputation and his life as he knows it can drive him to violence against his wife which could be fatal.
Negotiating a successful marriage is difficult without this law and this law makes the institution more difficult and less attractive. The fallout from this bill and the assault and havoc it can potentially wreck on this hallowed institution may cause it to lose its sanctity, effectively reducing it to the level of a common law relationship or a civil union.
These are the unintended consequences of this ill-advised bill. To date, the government minister advancing this bill has not explained the benefits of this bill to the preservation of marriage. It is clear how this bill can place women in harms way and systematically weaken the marriage institution. The question that must be asked is the intent of the government with this bill.
Legislatively, an effective recourse for women who are victims of abuse, sexual or otherwise, is an Emergency Protective Order which usually begins with a Temporary Restraining Order.
Temporary Restraining Order (TRO)
An order that tells one person to stop harassing or harming another, issued after the aggrieved party appears before a judge. Once the TRO is issued, the court holds a second hearing where the other side can tell his story and the court can decide whether to make the TRO permanent by issuing an injunction. Although a TRO will often not stop an enraged spouse from acting violently, the police are more willing to intervene if the abused spouse has a TRO.
Emergency Protective Order (EPO)
Any court-issued order meant to protect a person from harm or harassment. An emergency protective order is issued by the police, when court is out of session, to prevent domestic violence. An emergency protective order is a stop-gap measure, usually lasting only for a weekend or holiday, after which the abused person is expected to seek a temporary restraining order (TRO) from a court. Being bound over the peace is inadequate and takes too long. The EPO removes the abusive spouse from the marital home immediately. Specifically, an EPO entails the following:
• That police can obtain an EPO from the court to provide immediate protection to an abused spouse. The application can be made by telephone or in person at any hour of the day or night.
• This order can say that an abusive spouse:
• must temporarily leave the home immediately,
• cannot contact other family members,
• cannot come near their home, workplace or school,
• must give up all guns, knives and other weapons.
• The fact that an abuser can be ordered to leave the home might be very beneficial to the wife and children as it stabilizes the home.
• The order can allow for the police to accompany a person to the residence to collect personal belongings, and finally include any other term that is appropriate or necessary in the circumstances.
• The order can be requested by telephone or in person at any hour, and can be made without notice to the other person against whom the order is sought.
• If the police have been called to an incident of family violence, they will make the decision as to whether to make an application for an emergency protection order or not. In making this decision the police will assess the situation, the degree of risk involved and whether or not a criminal offence has been committed.
• If a criminal offence has been committed the police can charge the offender instead of applying for an emergency protection order. The police have two options in this regard. The offender can be charged at the scene of the incident and asked to enter into a promise to appear at court at a given date and time, with the condition that in the intervening period they will not go near or contact the person who has complained of abuse. Alternatively, the offender can be taken before a justice immediately, when the police will request conditions of no contact as part of the release terms.
• Information about the process for review of an emergency protection order should be made available through the appropriate government website.
Enforcing the order
• The abused spouse should carry a copy of the order with you at all times. If a person breaches the terms of a protective order, the person can be arrested. She will be able to show it to any authority, such as the police, who can then take the necessary action in arresting the offender.
• Once the respondent has been served with a copy of the order, it is very important that the order is then registered with the police. An established registry system should be easily accessible by computer if an order is broken. Registration of the order will help to ensure that there will be a speedy response if it is ever broken.
There are viable alternatives for women in abusive relationships without offending the institution of marriage. This law will destroy the initial intent of the marriage contract. The inherent rights enjoyed under this paradox of mutual exclusivity called marriage will be under threat as the government inserts itself in the undefiled marital bed, smack in the middle of a man and his wife. The government cannot settle a sexual row between a man and his wife without inflicting extensive and devastating collateral damage to the institution at large. Many women accommodate the sexual requests of their husbands when they would rather be doing something else, like getting the kids ready for school, or just sleeping. This is the way it was intended by God to function under those difficult circumstances. In instances of sexual abuse, what Bahamian women really need is an Emergency Protective Order, not the elimination of one of the critical foundations of the marital institution.
Please government, don’t throw out the baby with the bath water.