Opinions of Thu, 8 Jun 200621
Women In Justice
THE DOMESTIC VIOLENCE BILL (PART II of III- MARITAL RAPE)
Must Modern Marriage Or Cohabitation In Ghana, Be Regarded As Partnership Of Equals?
IN MEMORY OF ABEREWA DOKUA AND NANA YAA ASANTEWAA
There is an ongoing debate or agitations over the issue of whether or not marital rape provision must be inserted into our Domestic Violence Bill. Two schools of taught have arose. While lawmakers contend that its inclusion may defeat the traditional peace that our customary marriage has ensured for decades, female activists sincerely argue that it might rather foster mutual gender respect and woman?s bodily autonomy.
Since this is a new invention in our culture and therefore, must be read as one of the odds in democracy and westernisation, we consider it vis-?-vis the English Domestic Violence, Crime and Victims Act 2004. The Statute, as the name implies, is violence within home- specifically by one (dominant) spouse or partner against another. Most feminist groups, for example, Women?s Aid and Women?s National Commission, seem to have favoured the definition in New Zealand?s Domestic Violence Act 1996 where violence, among others, means (a) physical abuse; (b) sexual abuse and ? psychological or emotional abuse limited including coercion and threats of sexual abuse.
In the UK, as elsewhere in the world, it remains largely invisible since it happens in patriarchal home which is represented as a place of safety and refuge? The offence is under-reported and not always taken seriously when it is reported to the police and the courts. Studies reveal that one in every four women experience domestic violence and about a quarter of women will suffer the violence at some point in their lives. (See, Catriona Mirrleess-Black, Domestic Violence: Findings from a New British Crime Survey Self-Completion Questionnaire, Home Office Research Study 191, 1999).
It is argued that men could also be victims of domestic violence, however, it is estimated that the majority of female murder victims are killed by family members. And of the total homicide (1982-1986) in the UK, nearly a fifth (18 per cent) were the result of husbands killing wives, while only 2 per cent were the result of wives killing husbands. According to statistics, two women are killed by domestic violence every week (see, Home Office@ www.homeoffice.gov.uk) One may ask, and what about Ghana?
If we were to indict Ghana, where some 35 women could be callously murdered without a dim of suspicion, then reliable statistics on this issue might not be flattering. A recent case around Wamfie, in our Brong-Ahafo Region, where a man battered his wife to death over his opposition to the wife?s desire to attend Easter Convention, brings to focus the plight of women. Some legal minds might argue for insanity, provocation or even intoxication. But, must we ignore the trauma that this our sister might have experienced before her fatal death? We may not be surprised to discover a man who cherish forced sexual intercourse but careless about how his kids could be raised? It is such men that the law must target rather than knitting the woman to: ?me mma yi nti syndrome?. But is the Ghanaian spouse really ripe for this marital rape?
Not until 1990, in England, the view at common law was that by marrying, a woman gave consent to sexual intercourse with her husband and she could not withdraw that consent while she remained married to him ( Hale?s History of the Pleas of the Crown (1736) 629). Sir Matthew Hale, once declared that ?The husband can not be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract. Sir William Blackstone has also argued that the husband was to answer for the wife?s misbehaviour and so he could chastise her like his apprentice or child However, in R v Cochrane (1840) 8 Dowl 630, it was held that a husband could only restrain his wife in order to make her continue to live with him
This treatment by society and the law, as we saw in our earlier article, Women In Rape, had been criticised from time immemorial. For example, in 1405, a lady of the French court called Christine de Pisan wrote The Book of the City of Ladies, which supported women and answered men?s claim that women were morally and intellectually inferior to men. In England, such writing, according to Bourne and Derry, senior lecturers at the London Metropolitan University, became particularly popular in the second half of the sixteenth century, when Queen Elizabeth I, provided a powerful role model for women (Bourne, J. & Derry, C., Women and Law, 2005. p3).
In Ghana, save Aberewa Dokua, Nana Yaa Asantewaa and our faint idea about Nana Deede and Aminatu, we may argue that most of the said potent roles exhibited by women in our history or continue to display are either swept under the carpet or are given scant recognition by either men or even the women themselves. Today, what the Ghanaian woman, chiefly attempts to achieve, it seems, is nothing more than the right to decide when and how to have ?sex? with her legally married husband? Which under normal circumstances, where there is love, consent might not be a problem? From this premise, we submit that where sanctions are imposed on sexual intercourse in a matrimonial home, civil-partnership or in any relationship that we find ourselves, then something might be going on wrong that we need immediate and effective rapport?
Of course Philosopher Rousseau ( 1712-1778), has argued that the roles of the sexes came from the position in copulation and that one ought to be active and strong, the other passive and weak? which follows that the woman is made specially to please man? Is it not doubtful whether the eighteenth century liberal philosophy that declared that ?all men are created equal? which inspired historical events such as the French Revolution and the US Constitution still valid? The British, whom we are most grateful for our Constitutional and Administrative Law have gradually, departed from Rousseau?s contention. This could be evidenced by the Aggravated Assaults on Women & Children Act 1853, Matrimonial Causes Act 1878, Summary Jurisdiction (Married Women) Act 1895 and Domestic Violence & Proceedings Act of 1976 etc.
It is true that marital rape was recognised in limited situations as the statutory definition of rape in the Sexual Offences Act 1956 used the phrase ?unlawful intercourse? which was held to be sexual intercourse outside marriage, (Chapman (1959)). However, during the second half of the twentieth century, as most of our countries also aspired for self-determination or self-government Now, judicial opinion steadily changed. If we argue that both men and women can be victims of marital rape, then why portray the woman and child as the likely social casualties in divorce?
We can argue that in Ghana, besides poverty, perhaps, the basic reason that the man or woman might divorce his wife is where s/he had committed adultery? But who has to prove the heighten adultery of his or her partner before his or her wanted divorce? We demonstrate that marital rape allegation might not be the only cause of divorce if concerted family education is put in place. In England, the 1923 Matrimonial Causes Act allowed divorce on grounds of simple adultery for both spouse. The Matrimonial Causes Act 1937 has broadened the grounds to include 3 years desertion and cruelty.
Our current laws hypocritically recognise only one legitimate wife as against our many concubines and children who in reality, have limited claims under our current intestacy rules and without any serious obligation put on we those who junket around breeding ?illegitimate kids?? Our attention have been passionately drawn to the worries that if our women, deserve such right, then polygamy must also be legalised to arm us with the needed strength to satisfy our sexual goals whenever we are denied penetration? We think the argument is for the genuine spouse who has legitimate claims. So, must we recognise the injustice of the doctrine of coverture to the woman?
In England, a wife?s consent to sexual intercourse in a matrimonial homes, since 1990, is recognized in the case of R v R  4 All ER.481. This case was decided in part under s. 1 of the Sexual Offences (Amended ) Act 1976 which provided that: ?A man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it?. This was a departure from Sir Hale?s statement of 1736, that the husband cannot be guilty of marital rape. It is arguable that this decision floated the will of Parliament. However, it concluded that the modern view of the nature of marriage and equality within marriage, meant that the old rule had become offensive to the point where it could no longer be sustained.
To this effect, the European Court on Human Right affirmed that the ?debasing character of rape was so manifest that ..[the decision of English courts] .. could not be said to be at variance with the object and purpose of its Art 7, which ensures that no one should be subjected to arbitrary prosecution, conviction or punishment? and that the rejection of the former rule ?was in conformity not only with a civilized concept of marriage, but also, and above all, with the fundamental objectives of the Convention, the very essence of which was respect for human dignity and human freedom.? (See, SW v United Kingdom and CR v United Kingdom (1995) 21 EHRR363))
If this could be true, then why are we eager to uncover the veils but terrified to utter yes to the vows? Admittedly, there are differences between British matrimonial homes and that of our Ghanaian. But, do Adjorkor Dufie in Ghana and Judith Shirley in the UK, not resent to grief and happiness? Thus, by simply arguing that marital rape must not be inserted into the Domestic Violence Bill because of divorce, is our Parliament not conceding the argument raised by Columnist Antonio de Figueiredo, that globally, he don?t remember personally, any male liberation leader ever referring to women issues because women still remain colonised by customs, prejudices and religious myths and distortions? ( New African Magazine, ?What About The Women??, Jan., 2003, p.26)
In Midland Bank Trust Co v Green (No. 3)  Ch. 529 Lord Denning assert: ?Nowadays, both in law and in fact, husband and wives are two persons, not one.. The severance in all respects is so complete that I would say that the doctrine of unity and its ramifications should be disregarded altogether, except in so far as it is retained by judicial or by Act of Parliament?. Like any human institution, marital rape law in Ghana, might indeed have its exploitations as we appear to be unsure of the verdict of the moral credibility trial of our women. But could this not be contained, if we were to afford free, independent and confidential Citizens Advice Bureaux for the Ghanaian family?
Otherwise, does this moral argument suggest that even if a partner contracts a transmittable disease, s/he must nevertheless succumb to sexual intercourse against his/her will so as to avoid child delinquencies and school drop-outs in the cohabitation or matrimonial home that is regarded honestly, as partnership of equals?
Department of Law, Governance and International Relations
London Metropolitan University, London, UK
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