Coleby Sounds Off: A viable alternative to the Marital Rape Law

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colebyelcott.jpgBy: Elcott Coleby

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.

18 COMMENTS

  1. @Madame x I too am a woman and am offended by this legislation. It is too wide open and will result in unfair prosecution of many men. Strengthen the family and stop the male bashing. Our men need to be made stronger not battered into being sissies by laws which frighten them away from marriage and into lifestyles that would cause further disintegration of a society already plagued by many ills.

  2. I agree entirely with the opinion expressed. What I view as horrific is the increase in the penalty to life imprisonment at the same time as you add marital rape. The rationale given by the Minister to the effect that a man who is not violent has nothing to fear is totally nonsensical.The fact is you are passing legislation which will not only destroy marriages but will add bad faith to relationships that are already struggling. There are problems in the male female relationship already because of a lack of trust. Such legislation adds fire to a bad situation and causes even more problems.Meanwhile all of the Reverends agreeing should perhaps see what they can do to strengthen marriages instead of agreeing to the demonic assault on the INSTITUTION OF MARRIAGE ordained by FATHER GOD. They need to remove the scales from their eyes.

  3. we are not the only ones faced with this dilemna we just late in dealing with it its a philosophic quandry is government to refrain from interveing to deal with the mischief of forced sexual relations within marriage …….look at the case law again you would see that it took nearly 100 plus years to change the position in the united kingdom the first challenge came in 1949 and the law didnt change until 1999 after the precedent setting case in 1992. the first principle The exemption had never been a rule of statute, having first been promulgated in 1736 in Hale’s History of the Pleas of the Crown, where Hale stated:

    “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”

    Hale’s statement was not supported by any judicial authority but was believed to be a logical consequence of the laws of marriage and rape as understood at the time

    Apostle pauls view was accepted in common law but times have changed are we willing to change with the times ?

  4. @objective thought
    look at the constitution again it says nothing about chritianity that is a label we attach to ourselves you still havent answered the fact that the laws of moses are absolute God is the ajudicator thou shall not kill there are no derogations to the law…….re spiteful and malicious allegations this could be entrenched in the legislation as well at the end of the day the goverment’s dilemna is they need to be in step with the international standards so what is your suggestion leave it to your literal interpretation and we should stone half the population for adultery and people should be able to walk on water and no one goes hungry cause you only need a few fish and bread….seriously speaking i respect your religous views however if the wife’s body belongs to the man and vice versa then we should treat each other with respect it introduces the principle of equality where in the bible do you see womens contribution noted as that of men and you still havent addressed the small fact that we are a democracy not a theocracy the affect of that is the bible does not make secular laws….so what do you propose we as bahamians do to reflect the need to protect the institution of marriage and prevent domestic violence with sexual gratification in mind where do we go from here im sure there are many that agree with your view thats how we are socialized so I accept your point but how do you move forward in line with international obligations

    p.s. we say no to gambling and allow others to gamble am i not my brothers keeper???????????

  5. There is so much killing going on in this little of ours country that I feel they should be putting more time and energy into trying to enforce capital punishment to take some of these dangerous killers of the street and not only be focusing on trying to jail people for trying to have sex with their spouse.

  6. @Objective Thought
    Yeah, I could see this new law causing problems and breaking up plenty families. Some people spiteful you know, they would use this new law as a weapon, if their spouse makes them mad and they done had sex with them, I could see them calling the police on them. Then some people would take a delight in holding out on their spouse for months after months, causing the spouse to start a new relationship with somebody else. I don’t know how Loretta them get mixed up in people’s bedroom. All I could say they have too much idle time on their hands. Maybe I only feel this way, because I have never had someone rape and beat the crap out of me to have sex. It’s a funny situation, but I don’t think nobody suppose to be forcing nobody to do anything against their will.

  7. @Kim Sands
    Can you imagine the families that will be destroyed??? Marriage is already in decline and after this law many men would prefer to take their chances by having 2 or more girlfriends because this law would have destroyed the main plank of marriage… Because of the scriptures, I can’t see how a man can rape his wife… Maybe he can sexually abuse her but definitely not rape as long as they are cohabiting!!!!!If they are separated, he can rape her but not otherwise!!!!

  8. @Tink we Fool
    Don’t try to confuse the scriptures because the bible is clear at least on this subject that you brought up!!

    The bible makes it clear that ‘thou shall not kill’ etc. But it also gives the state rules to deal with those persons who choose to do their own thing and kill!!! Just so you know God appoints govts and removes them also.. Romans 13:1-8. Read with special interest verse 4… Because people try to separate the scriptures other than the old from new, they get into trouble. You must always keep in mind when you read the scriptures that all scripture is given by inspiration of God! 2Timothy 3:16

    If you don’t believe that then you are the one confused and not the scriptures!!! But the bible warns us about those who will come and not endure sound doctrine.. 2Timothy 4:3&4

  9. thats what im saying the need for the legislation came from human rights legislation many countries decide how they implement the ban india implemented the ban in a domestic violence bill but they did not impose criminal sanctions it is you the people that decide and as for the scripture before you intertwine scripture wih secular law you first need a legal basis such is the case in theocratic countries afghanistan, iraq, Iran etc unfortunatley our constitutiopn does not support the views of the apostle you can change that if you which through consultation and referendum but if the bahamas is seeking first world status then we have to comply with developed world standards it still behoves me how scripture is distorted to make sense durin g debates moses got the law thou shall not kill from God then somone quotes numbers :35 to justify the death penalty what if your wrong and kill an innocent person is the jury and judge to hang as well? eye for an eye. And it matters not what you would do re your mother or sister but there are many who would kill to protect the intrest and safety of their loved ones. So let the chips fall we are already a country were vigalante justice is pervasive

  10. @Objective Thought

    Thanks for quoting the scripture on this one. I think them running out though with this new law. Seven years is a long time to lock someone up for forcing their spouse to have sex against there will, I mean some people who commit murders don’t stay in jail that long.

  11. This govt. has just laid a bill on the table of the HOA in which a spouse can be locked up for as much as 7 years for raping their spouse. I don’t blame the govt. for trying to protect its citizens because of all the complaints that they have been getting from sexually abused married persons according to the minister for Social Services.

    But what was worse to me is when I heard pastors on the radio supporting this bill when they clearly know that this bill goes against the principles of a good Christian marriage!! Here is what the New Testament has to say about the body of husbands and wives….

    1 Corinthians 7:4&5 say this, “The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. (5) Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control.” NKJV.

    That’s just one of the principles of a Christian marriage.. But this legislation clearly goes against that principle… Why are the religious leaders sitting back and saying absolutely NOTHING in defense of their Christian values. This bill is just CRAZY!!!

    What is happening to our country and how can we allow any govt. to make laws that go against the the basic principles of our constitution???

  12. We choose who we want to marry then we expect the govt to protect us for making STUPID choices, ok!!! “Ya make ya bed, then lay in it”….

    I don’t care if it’s my mother or sister!! God ordained marriage and the bed is NOT DEFILED!!!! More later, gat to go..

  13. the preceding case is the backing for the ban on marital rape it is a house of lords ruling and inline with equality provisions handed down by the European Union. Many people speak subjectivley on the matter as in me my wife my house my marriage are we saying we will accept this position even if it occured to one’s sister or mother??????????restraining orders would not have helped the mother who was stabbed to death on the bus stop and her daugther subsequently shot and paralyzed they werent even married so one can only imagine what they hide behind in a marriage why would one sleep with someone that does not recipricate from that rational we can justify many things ok so you dont want the law amended whats the alternative if orders worked we could use them as regard witness tampering as well who would give evidence den?????

  14. Crime – Sexual offences – Rape – Husband and wife living apart – Husband attempting sexual intercourse with wife against her will – Whether husband immune from charge of attempted rape – Sexual Offences (Amendment) Act 1976 (c. 82), s. 1(1)

    The defendant married his wife in 1984. As a result of matrimonial difficulties the wife left the matrimonial home in 1989 and returned to live with her parents, informing the defendant of her intention to petition for divorce. The defendant also communicated to the wife his intention to “see about a divorce.” While the wife was staying at her parents’ house, the defendant forced his way in and attempted to have sexual intercourse with her, in the course of which attempt he assaulted her. He was charged on indictment with rape and assault occasioning actual bodily harm. The judge rejected his submission that by virtue of section 1(1) of the Sexual Offences (Amendment) Act 1976 the offence of rape was one which was not known to the law where the defendant was the husband of the alleged victim. He thereupon pleaded guilty to attempted rape and assault occasioning actual bodily harm and was convicted. On the defendant’s appeal against his conviction of attempted rape, the Court of Appeal (Criminal Division) dismissed the appeal.

    On appeal by the defendant: –

    Held, dismissing the appeal, that there was no longer a rule of law that a wife was deemed to have consented irrevocably to sexual intercourse with her husband; and that, therefore, a husband could be convicted of the rape or attempted rape of his wife where she had withdrawn her consent to sexual intercourse; that section 1(1) of the Sexual Offences (Amendment) Act 1976 did not give statutory recognition to and perpetuate the former rule; and that, accordingly, the defendant’s conviction would be upheld (post, pp. 616D, 617F-618B, 621C, 623B, D-F).

  15. This proposed Bill is Gender neutral, so I do not understand why men are up-in-arms! Coleby started off writing some very stupid things-for a second there he sounded like a member of the Taliban- moderated a little at the end, so there is hope. I find it hard to believe though that Coleby is not fronting for his very good friend, based on what I have heard from Mr. Coleby live on radio..

  16. Judson made a comment about your link from BP’s Facebook:

    “What about a marital rape law to protect the MAN? I gat a fren who havin home troubles right now. He tell me that his wife keep forcing him to perform oral sex against his will. This he says is a problem because she holds out on him if he does not comply. A question for Mr. Coleby……………is this type of coercion covered in the bill? How do you get around this?”

  17. Anything positive to report on the Government or this news site is not the venue for that
    You certianly can point out the faults or what you thik os the faults of the government now do some of the other side some of the good ther are some you know thid site is toooo one sided

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