Criminalising marital rape is way to go - academic

OARABILE MOSIKARE
Staff Writer | Tuesday July 9, 2013 00:00

 

Obonye Jonas, a senior law lecturer at UB recently wrote an article titled: 'Letsholathebe vs The State: towards the abolition of spousal exemption in Botswana?' In 2008 when Kirby was still a High Court Judge he delivered a judgment in which he declared marital rape a prosecutable office in Botswana.In his article Jonas presented a critical analysis of the Botswana case of Letsholathebe vs The State where Kirby stated that the doctrine of marital exemption is offensive to modern thinking as it no longer represents the position of the wife in latter-day society and that it needs to be abolished.He shared Kirby's sentiments that the doctrine of spousal exempt is anachronistic but argues that the legislature must lead the way ahead of courts in abolishing it to avoid the problem of retroactive application of criminal law.

'The central claim of this article is that the marital exempt doctrine is an antiquated legal doctrine that sits ill with all notions of human dignity and liberties of women,' writes Jonas.'However, it will be rather simplistic and mechanical for courts of Botswana, indeed as Kirby sought to do in the Letsholathebe case, to simply hold that the world 'unlawful' as used in section 141 of the Penal Code of Botswana is 'surplusage' thereby making marital rape an offence. 'It is submitted that for the judge to simply remove the word 'unlawful' in Section 141 of the Penal Code by way of interpretation would amount to the creation of a new and retroactive criminal liability, thus offending the venerable criminal law principle that there must be no crime or punishment save in accordance with fixed, predetermined law.'

He further said if the Parliament of Botswana had intended to abolish marital rape, it would have done so in an explicit language that admits no interpretational ambiguities.'It may also be argued that to read Abolition of Marital Exemption in Section 141 of the Penal Code, when the said section is silent on the matter is to go overboard. This broad interpretation goes against the basic rule of interpretation of criminal statutes, namely that criminal statutes are supposed to be interpreted strictly against the State.'Jonas, who is also a private attorney, says there can be no debate that Section 141 of the Penal Code as presently cast creates ambiguities on the question as to whether a husband can be found guilty for raping his wife or not. He says these ambiguities must operate in favour of a marital rape accused.

He thus says if Kirby in the Letsholathebe case wanted to be understood as making the Penal Code to be read as a complete reversal, thereby creating a new offence of marital rape, then the judge was in error.Jonas says: 'He would have forayed into law-making - a prohibited territory for him, especially legislating in a criminal law domain - where the result would be retroactivity of criminal law. He certainly would have gone 'beyond the legitimate bounds of judge-made law.' It is impermissible for courts of law to fundamentally alter the constituent elements of an offence to the prejudice of an accused person.'

He argues that reversal of interpretation undermines the principle of non-retroactivity of criminal law. However, common law courts are at large to adapt and modify the common law to reflect society's changing circumstances.'In the premises, it is submitted that the law on marital rape in Botswana is unsettled and thus cannot found criminal liability. Judge Kirby's opinions in the Letsholathebe case amount to more than dicta. It is therefore important that the Parliament of Botswana must step up to the plate and clarify the position by expressly abolishing marital exempt in a clear and unambiguous language in the manner that the British Parliament did through the Public Order Act of 1994,' he writes.

The academic argues that despite the dissension in public opinion, the elimination of marital exempt doctrine is long overdue. He said its abolition would ensure the recognition that women have separate and exclusive legal existence and rights from their husbands.Marital rape violates the woman's right to bodily integrity, self-determination, freedom and the harm is not alleviated or assuaged by the fact that marriage exists between the parties or that the harm occurred in the comfort of the marriage bed. 'Thus the abolition of marital exemption doctrine will give life and meaning to the profound affirmations of human rights of women contained in numerous international instruments such as the Convention on the Elimination of All forms of Discrimination Against Women, African Charter on Human and Peoples' Rights and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, among others. 

'It is submitted that the abolition of marital exempt doctrine is a vital step towards the achievement of gender equality as envisaged by the many international human rights instruments referred to above,' Jonas points out.In conclusion Jonas says rape is morally abominable and legally repugnant whether committed within the framework of marriage or outside matrimony. 'Worse, marital rape is more traumatic than rape committed by a stranger. It demeans and objectifies them as man's chattels of sex. It renders the notion of gender equality nugatory. 'Thus, in order to give meaning and expand the reach of human rights of women, it is important to abolish repugnant practices that undermine their basic dignity such as marital rape. 'Even if a man is married to a woman, it does not mean that he has untrammelled sexual rights over her. It expresses the power and dominance of men and the subjugation of women in marital set-ups,' Jonas says.