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MARITAL RAPE and INTIMATE PARTNER SEXUAL VIOLENCE ACROSS the COMMONWEALTH Title Goes Here Text to Come THE CRIMINALISATION OF MARITAL RAPE AND INTIMATE PARTNER SEXUAL VIOLENCE ACROSS THE COMMONWEALTH Title goes here Text to come The Equality & Justice Alliance is dedicated to advancing equality and promoting equal protection of the law for all Commonwealth citizens regardless of sex, gender, sexual orientation, gender identity or expression. www.equalityjusticealliance.org.uk 2 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in 1.international and regional standards 2. 3. Origins and developments Legislative protections in relation to Country reports in International and marital rape and intimate partner sexual regional standards violence across the Commonwealth This report This report commissioned by Sisters For Change analyses the criminalisation of marital rape and intimate partner sexual violence across the Commonwealth. Marital rape and intimate partner sexual violence constitute acts of gender-based violence prohibited under international human rights law. The report explores the colonial origins of the marital rape exemption before examining in detail the development of international and regional human rights standards relating to marital rape and gender-based violence. Almost half of all Commonwealth countries require legislative reform to remove the marital rape exception in order to establish a statutory definition of rape that complies with international and regional standards. Through a series of country case studies, the report analyses inadequate legislative protections in relation to marital rape and the challenge that religious and customary laws in plural systems pose to legislative reform before discussing three different legislative models which have been adopted by Commonwealth countries to criminalise marital rape and intimate partner sexual violence. The 12 Commonwealth countries selected for review are Malaysia, Mauritius, Namibia, Nigeria, Rwanda, Saint Lucia, Saint Vincent and the Grenadines, Samoa, South Africa, Tonga, Trinidad and Tobago and The Bahamas. The purpose of this report is to advance and support the legislative reform of discriminatory laws in those Commonwealth countries where the marital rape exemption still exists in one form or another. 1 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth Authors and acknowledgements This report was commissioned by Sisters About Sisters For Change For Change, authored by Marion Bethel and Sisters For Change (SFC) is an international NGO consolidated and edited by Jane Gordon, working to eliminate discrimination and violence against SFC Legal Director. women and girls worldwide through legal reform, legal empowerment, legal accountability and legal advocacy strategies. SFC works to generate systemic change in Marion Bethel is an attorney and The Bahamas how governments combat violence, structural change member of the UN Committee on the Elimination of to give women voice and agency in justice systems and Discrimination Against Women. Ms Bethel was called to social change to end the social acceptance of violence the Bar of England and Wales in 1985 and called to the against women and girls. SFC is active in the UK, India Bar of The Bahamas in 1986. She worked in the Office and Indonesia. As a member of the Equality & Justice of the Attorney General in The Bahamas before moving Alliance, SFC is working to reform laws that discriminate into private practice in 1994. Ms Bethel is currently against women and girls and LGBT people across the partner of Sears & Co law firm. Ms Bethel has been Commonwealth. SFC is currently working with the active in the women’s movement in The Bahamas and the Governments of Namibia, Saint Lucia and Samoa Caribbean since the mid-1980s. In July 2014, Ms. Bethel on technical assistance programmes and is a member was awarded the Eleventh CARICOM Triennial Award of the SADC Parliamentary Forum’s Technical Working for Women for her outstanding contribution to the field Group on the development of a Model Law on Gender- of Gender and Development in the Caribbean. Based Violence. For more information visit www.sistersforchange.org.uk Follow us on @sisters_4change Registered Company No. 9136425 Registered Charity No. 1165647 Copyright © Sisters For Change 2019 This work can be copied, shared and distributed, in whole or in part, for research, educational and public policy purposes subject to the condition that the work is not altered or adapted and the Equality & Justice Alliance is acknowledged as author of the work. This work has been commissioned by Sisters For Change, a member of the Equality & Justice Alliance, but it has not been approved by, nor does it represent the opinions of, any other member of the Alliance. Printed in the United Kingdom. First printing 2019. ISBN No. 978-1-913173-06-7 Design by Bright Design, [email protected] Sisters For Change is grateful to the UK Government Foreign & Commonwealth Office for supporting the work of the Equality & Justice Alliance. 2 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth Contents 4 Focus of review 6 Executive summary 8 Introduction 9 Structure of report International and regional standards Legislative protections in relation 1. on discrimination and equality 2. to marital rape and intimate partner sexual violence across 12 A. The colonial origins of the the Commonwealth marital rape exemption 15 B. Developments in international 42 A. Inadequate legislative protection: and regional standards Commonwealth studies 15 International standards 42 1. The Bahamas 15 International Covenant on Civil 44 2. Saint Lucia and Political Rights 1966 45 3. Nigeria 16 International Covenant on Economic, 47 4. Malaysia Social and Cultural Rights 1966 49 Conclusion 16 Convention on the Elimination of all forms 50 B. Removal of the marital rape of Discrimination against Women 1979 exception: the challenge of religious 18 Convention against Torture and other and customary law cruel, inhuman or degrading treatment 50 Nigeria: The classification of marital rape or punishment 1984 in the northern Islamic states 19 UN Declaration on the Elimination 52 Malaysia: The Islamic law perspective of Violence against Women 1993 on the criminalisation of marital rape 20 Regional human rights instruments 54 Conclusion 20 Organization of American States 55 C. Legislative models adopted to 21 African Protocol criminalise marital rape and intimate 21 Council of Europe partner sexual violence 22 Association of Southeast Asian Nations 56 Criminal Code or Penal Code revision 23 Organisation of Islamic Cooperation 56 Sexual offences legislation 24 C. Due diligence obligations of states 57 Gender-based violence/violence against to combat violence against women women/domestic violence laws 24 State responsibility and due diligence 58 Conclusion and recommendations 26 CEDAW and the due diligence standard for legal reform 31 D. Justification for criminalizing non-consensual sexual acts in intimate partner relationships Country reports 31 CEDAW and intimate partner violence 3. 33 UN Declaration on Violence against Women 62 Introduction 33 Regional instruments 63 A. Commonwealth Africa 34 E. UN model legislation on marital 63 South Africa rape and intimate partner sexual 64 Namibia violence 67 Rwanda 39 Conclusion 68 Mauritius 71 B. Commonwealth Caribbean 71 Saint Vincent and the Grenadines 72 Trinidad and Tobago 74 C. Commonwealth Pacific 74 Samoa 76 Tonga 79 Conclusion 3 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth TitleFocus goes of review here Text to come 14 United Kingdom The Bahamas 10 Saint Lucia 56 The Gambia India 1 Saint Vincent and the Grenadines 67 1312 11 Trinidad and Tobago 4 8 54 Rwanda Nigeria Sri Lanka 21 Malaysia 78 Samoa Namibia 3 1211 Tonga 2 Mauritius South Africa 9 1 Malaysia Population of 31,949,777 2 Mauritius Population of 1,269,668 3 Namibia Population of 2,494,530 4 Nigeria Population of 200,963,599 5 Rwanda Population of 12,626,950 6 Saint Lucia Population of 182,790 7 Saint Vincent and the Grenadines Population of 110, 589 8 Samoa Population of 197,097 9 South Africa Population of 58,558,270 10 The Bahamas Population of 389,482 11 Tonga Population of 104,494 12 1,394,973 Trinidad and Tobago Population of 4 TheComparative criminalisation legal ofreview marital of rapeanti-discrimination and intimate partner& equality sexual legislation violence:violence across acrossan appraisal the the Commonwealth Commonwealth of Commonwealth States 1. Origins and developments in international and regional standards 14 United Kingdom The Bahamas 10 Saint Lucia 56 The Gambia India 1 Saint Vincent and the Grenadines 67 1312 11 Trinidad and Tobago 4 8 54 Rwanda Nigeria Sri Lanka 21 Malaysia 78 Samoa Namibia 3 1211 Tonga 2 Mauritius South Africa 9 53 1.19bn 20 countries in the women Commonwealth countries yet to reform Commonwealth laws to criminalise marital rape 5 The criminalisation of marital rape and intimate partner sexual violenceviolence: acrossan appraisal the Commonwealth of Commonwealth States Executive summary This report commissioned by Sisters For Change analyses Marital rape and intimate partner sexual violence the criminalisation of marital rape and intimate partner constitute acts of gender-based violence (GBV) sexual violence across the Commonwealth. Marital prohibited under international human rights law. The rape and intimate partner sexual violence constitute International
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