A man can be charged with raping his wife, Cayman’s Grand Court determined recently.
Mr. Justice Alex Henderson, then Acting Chief Justice, made the ruling during a trial of a man accused of attempting to rape his wife, indecently assaulting her and causing her actual bodily harm.
Defence Attorney James Austin-Smith argued that the man could not be convicted of the first two charges. He explained the law in the UK and how it had developed in recent years. But, he submitted, the traditional view held by the common law, that a husband cannot commit rape upon his wife, was still the law in Cayman.
In reply, Senior Crown Counsel Adam Roberts explained how the law had evolved in Cayman.
Both counsel and Mr. Justice Henderson referred extensively to the 1992 judgment in the House of Lords in the case of the Crown and R.
According to their discussion, the pronouncement that a husband cannot commit rape upon his wife came from a book published in 1736. It quotes Sir Matthew Hale, described as a very learned jurist.
Sir Matthew said: ‘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.’
In the House of Lords judgment, Lord Keith said that passage was generally regarded as an accurate statement of the common law of England. ‘The common law is, however, capable of evolving in the light of changing social, economic and cultural developments,’ he continued.
‘Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition…. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.
‘Hale’s proposition involves that by marriage the wife gives her irrevocable consent to sexual intercourse with her husband in all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times, any reasonable person must regard that [concept] as quite unacceptable.’
Mr. Justice Henderson quoted the above passage in his judgment, adding that it undoubtedly represented the universal opinion in the UK in 1992. He said it was equally applicable in the Cayman Islands in 2005.
Mr. Roberts had urged this position when he explained that Cayman’s law had been amended in 1998 to include homosexual rape. He said it would be offensive to suggest that a whole section of society can be removed from protection of the law because they have gone through a form of marriage.
He and the judge both noted that over the years UK courts had paid lip service to Hale’s proposition, while at the same time departing from it and making exceptions to it, such as when the husband and wife were living apart. Previous authorities had said there comes a time when it is no longer enough to create further exceptions: the proposition itself must be examined to see if its terms are still in accord with what is generally regarded as acceptable behaviour.
Implied consent has become a legal fiction and a farce that does not reflect society’s views of how these matters should be addressed, Mr. Roberts said.
Unlawful
Mr. Justice Henderson pointed out that he had to judge the intent of the legislature from the wording of the law itself and its predecessors.
Mr. Austin-Smith had pointed out that Cayman’s law, even after it was amended in 1998, defines rape as unlawful sexual intercourse with another person who does not consent.
Some authorities have argued that the word unlawful is intended to mean outside the bonds of marriage.
But, Mr. Justice Henderson observed, the normal meaning of unlawfully is contrary to law. He gave as an example the definition of defilement. It refers to unlawful carnal knowledge of a girl under 12.
‘What would be gained or lost if the word unlawful were removed from that definition? I say nothing. There are no circumstances known to the law in which it is permissible to have carnal knowledge of a girl under 12.’
He also noted that in 1998 the word unlawfully was removed from the definition of indecent assault. A person might infer that the legislature intended to retain the traditional rule that a husband cannot rape his wife, yet intended to change the rule with respect to indecent assault. But that would not be reasonable, the judge indicated.
He noted that in Cayman the definition of rape has always included the word unlawful. He concluded that the word unlawful was therefore mere surplusage. It adds no meaning. For this reason, it was unnecessary for Parliament to remove the word in order to make clear that a husband can be found guilty of raping his wife.
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