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THE CRIMINALISATION OF MARITAL AND INTIMATE PARTNER ACROSS THE COMMONWEALTH Title goes here Text to come

The Equality & Justice Alliance is dedicated to advancing equality and promoting equal protection of the for all Commonwealth citizens regardless of sex, gender, sexual orientation, gender identity or expression.

www.equalityjusticealliance.org.uk

2 The criminalisation of 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 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 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 , , , , , , Saint Vincent and the Grenadines, , South , , and . 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 and in 1985 and called to the against women and girls. SFC is active in the UK, Bar of The Bahamas in 1986. She worked in the Office and . 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 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 . 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 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 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 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/ 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 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 India 1 Saint Vincent and the Grenadines 67 1312 11 Trinidad and Tobago 4 8 54 Rwanda Nigeria 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 Trinidad and Tobago Population of 1,394,973

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 Covenant on Civil and Political Rights and acts of gender-based violence prohibited under the International Covenant on Economic, Social and international human rights law. The report explores the Cultural Rights oblige States to protect fundamental colonial origins of the marital rape exemption before human rights that are commonly violated in GBV cases, examining in detail the development of international including the right to life, the right to physical and and regional human rights standards relating to marital mental integrity, the right to equal protection of the laws rape and gender-based violence. Almost half of all and the right to be free from discrimination. All forms Commonwealth states require legislative reform to of gender-based violence against women constitute remove the marital rape exception in order to establish a form of sex-based discrimination under Article 1 a statutory definition of rape that complies with of the Convention on the Elimination of All Forms of international and regional standards. Through a series Discrimination against Women and rape has been of country case studies, the report analyses inadequate recognised as a form of torture under the Convention legislative protections in relation to marital rape and the Against Torture. challenge that religious and customary laws in plural The Inter-American Convention on the Prevention, systems pose to legislative reform before discussing three Punishment and Eradication of Violence Against different legislative models which have been adopted by Women 1994 was the first regional convention directed Commonwealth countries to criminalise marital rape and singularly at eliminating violence against women and intimate partner sexual violence. The 12 Commonwealth requires States to apply due diligence to prevent, countries selected for review are Malaysia, Mauritius, investigate and impose penalties for violence against Namibia, Nigeria, Rwanda, Saint Lucia, Saint Vincent women. The Protocol to the African Charter on Human and the Grenadines, Samoa, South Africa, Tonga, and Peoples’ Rights on the Rights of Women in Africa Trinidad & Tobago and The Bahamas. The purpose of 2003 addresses violence against women under Article this report is to advance and support the legislative 4(2)(a) and establishes obligations to adopt legislative, reform of discriminatory laws in those Commonwealth administrative, social and economic measures to countries where the marital rape exemption still exists in ensure the prevention, punishment and eradication one form or another. of all forms of violence against women. The Istanbul Historically, English entrenched the concept Convention 2011 is the most far-reaching international of women as the of men and the implied treaty to tackle gender-based violence against women irrevocable by a to sex upon . and explicitly obliges States to “criminalise sexual The Sexual Offences Act 1956 and its Amendment Act violence when committed against former or current of 1976 reflected the English common position, with spouses or partners, whether living or not living in the statutory definition of rape including the marital the same residence”. It is the first treaty that has rape exemption. Through the process of colonisation, explicitly prohibited discrimination on grounds of sexual British colonies inherited this common law system along orientation and gender identity. with the marital rape exemption. The 1991 landmark In addition, the majority of Commonwealth constitutions case of represented in the UK the critical turning recognise a wide range of human rights and point for the marital rape exemption, with the Court of fundamental freedoms, such as the right to life, liberty, formally recognising the fundamental right of security, non-discrimination and equal protection of the a wife to and abolishing the marital law, all of which are important to the issue of law reform immunity, referring to the “legitimate use of the flexibility in relation to GBV, including marital rape and intimate of the common law which can and should adopt itself partner sexual violence. to changing social attitudes”. The unanimously agreed and abolished the marital rape Legislative advances in the criminalisation of marital exemption in its entirety. rape have varied considerably among Commonwealth countries. Partly due to piecemeal development over

6 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth the years, legislation relating to sexual offences is in Removing the marital rape exception and criminalising some countries inconsistent or out of date. In many marital rape and intimate partner sexual violence has countries, it remains discriminatory, whether on the been accomplished through three models of legislative grounds of marital status, gender or sexual orientation reform that reflect the legal culture of Commonwealth and definitively not in alignment with international norms countries. The first model seeks to criminalise marital rape and standards. Social, cultural, religious and political and intimate partner sexual violence through reform or tolerance for intimate partner sexual violence have revision of the or penal code. This model thwarted the internalisation of international human rights is common in , hybrid or dual legal norms, leaving many States without adequate jurisdictions, and in some common law jurisdictions. The legislative protections for victims/survivors of marital most effective way to remove the martial rape exception rape. The Bahamas, Saint Lucia, Nigeria and Malaysia in this instance is to remove the exception and amend the provide examples of states that do not have adequate definition of rape to include a consent-based definition of legislation criminalising marital rape and intimate sexual with no restrictions or limitations. partner sexual violence. The second reform model is through amendment or There are very clear steps necessary for States to revision of the “Sexual Offences Act”. A stand-alone amend their legislation to criminalise marital rape and Sexual Offences Act was commonplace during colonial intimate partner sexual violence. First, they must either times, particularly in the Commonwealth Caribbean, remove the marital rape exception, or broadly define and many countries kept the colonial formulation rape as based on harm irrespective of without amendments when they became independent. A the relationship between the perpetrator and victim. Sexual Offences Act is part of the laws of Antigua and Second, they must seek to harmonise any aspects of Barbuda, The Bahamas, , , , their constitution, criminal codes, sexual offences laws , and Trinidad and Tobago. In the 1980s and and/or domestic violence laws that are not consistent 1990s, the region began to recognise the inadequacies with international human rights norms. In the case of The of the definitions of sexual offences and criminal law Bahamas and Saint Lucia, a historical attachment to the reform focused on the removal of gendered language in common law theory of sexual relations keeping with human rights legal norms and alleviating within marriage, coupled with resistance from religious problems associated with the prosecution of sexual leaders, means that both these States have gaps in offences (e.g. the pre-trial and trial setting for victims). their legislation that fail to provide women with access However, in many Caribbean jurisdictions, the marital to justice or reparation. The challenge of the legal rape exception remains. harmonisation of religious, customary and international The third model of reform addresses domestic violence, human rights law is discussed in the case studies of gender-based violence, violence against women, Nigeria and Malaysia. intimate partner violence and/or violence. This Almost half of all Commonwealth countries require legislative model is an option for all types of jurisdictions legislative reform to remove the marital rape exception including those with dual or hybrid legal systems. The in all circumstances and without limitation, in order failure to repeal or amend criminal law in concurrence to provide a definition of the of rape that is in with the passing of gender-based violence legislation keeping with international and regional norms and means, however, that victims of marital rape may to harmonise other relevant laws, whether they be only have access to civil remedies and perpetrators from civil or customary sources. The Commonwealth is may avoid criminal prosecution and punishment characterised by political and geographic regions with commensurate with the gravity of their crime. distinct legal cultures. The criminalisation of marital rape Models of reform from Mauritius, Namibia, Rwanda, and intimate partner sexual violence therefore requires Samoa, Saint Vincent and the Grenadines, South Africa, different paths to legislative reform given the challenges Trinidad and Tobago and Tonga offer clear lessons of the post-colonial state’s legal architecture. Three for those Commonwealth countries seeking to reform areas of law are often involved in the reform process – outdated legislation in order to criminalise marital rape criminal, family, and, in some Commonwealth countries, and intimate partner sexual violence. customary or religious law.

7 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth Introduction TextThis reportto come analyses the criminalisation of marital rape and intimate partner sexual violence in Commonwealth countries. Its purpose 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.

TextIn the goes report, here 15 Years of The UN Special Rapporteur Such an approach recasts gender-based violence on Violence Against Women, Its Causes and as a logical outcome of unequal social, cultural and Consequences,1 Yakin Erturk, the then mandate economic structures, rather than as a social aberration holder, stated as follows: or a ‘law-and-order’ problem, implicating the State structures (of which the law is a part) in reinforcing “The ‘causes and consequences’ dimension of the the root causes and thereby sustaining conditions for mandate expands the human rights scrutiny past gender-based violence. For this reason, the mandate symptoms of gender inequality that become manifest cites several examples of gendered legal provisions as distinct forms of violence to look at structural and State policies while discussing VAW — such as and ideological causes that underlie the problem a narrow definition of rape based on patriarchal beyond the injury caused. Further, it views VAW considerations, exemption of marital rape, [violence against women] as an outcome of gender discriminatory family law provisions, culture-based discrimination that shapes social, economic, cultural justification of various forms of VAW, and policies on and political structures, rather than being independent , , sterilisation and reproductive of them. As a consequence, the State is obligated health that undermine women’s not merely to protect against violence, but rather to and sexual autonomy... eliminate its ‘causes’ – that is, gender discrimination at structural, ideological and operational levels – Rape and sexual assault laws that refer to women’s as well as to bear the responsibility for addressing chastity, closure of rape cases upon marriage with its consequences. This marks a radical departure from the rapist, non-criminalisation of marital rape, the traditional notions of State responsibility towards adultery laws, and restrictions regarding relationships addressing VAW. outside ethnic, religious or class boundaries, are ways of policing women’s sexuality.” (emphasis added) The inquiry into ‘root causes’ implicates ideology, structures and systems on which the institutions of the This report, therefore, locates itself in the paradigm that family, the community, the market and, indeed, the the root cause of gender-based violence against women State are founded. The recurring reference in the works inclusive of marital rape is gender discrimination. of the Special Rapporteur on VAW to ‘unequal power Thus, laws which discriminate against women, such relations’ as the root cause explains that this inequality as the marital rape exemption, facilitate gender-based is sustained through dominant norms regulating violence against women by supporting the root cause women’s sexuality, and notions of masculinity that of this sexuality.” sanction violence and control over women... The primary objective of this report is to examine (For more information go to pp 33-34) international human rights norms and standards in order to determine how these instruments can be utilised effectively to support reform of domestic constitutions and national laws where the marital rape exemption still exists.2

1 UN Women, 15 years of the Special Rapporteur on violence against women, its causes and consequences (1994–2009): A critical review accessed online: https://www.unwomen.org/en/docs/2009/1/15-years-of-the-un-special-rapporteur-on-violence-against-women. 2 The Report does not seek to examine the implementation of the criminalisation of marital rape, police procedures etc. in Commonwealth countries where the offence exists, nor the wider public policies and programmes that are necessary to support the effective implementation of the law.

8 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

Structure of report

Part 1 of the report explores the colonial Part 3 analyses approaches to criminalising 1. origins of the marital rape exemption and the 3. marital rape and intimate partner sexual violence international, regional and domestic legal in the domestic laws of countries across the frameworks to determine how they can be used Commonwealth, as follows: to address the issue of marital rape as gender- a. Commonwealth Africa based discrimination and a violation of the South Africa; Namibia; Rwanda; Mauritius. human rights of women. Part 1 is divided into the following sections: b. Commonwealth Caribbean Saint Vincent and the Grenadines; A. The colonial origins of the Trinidad and Tobago. marital rape exception. c. Commonwealth Pacific B. Developments in international and regional Samoa; Tonga. legal standards on intimate partner violence. C. The due diligence obligations of States to combat violence against women. D. The justification for criminalising non-consensual sexual acts in intimate partner relationships. E. UN Model Legislation on VAW.

Part 2 of the report considers legislative 2. protections in relation to marital rape and intimate partner sexual violence across the Commonwealth countries as follows: A. Analysis of inadequate legislative protection in relation to marital rape and intimate partner sexual violence through case studies of The Bahamas, Saint Lucia, Nigeria and Malaysia. B. Consideration of the challenge of religious and customary law to the removal of the marital rape exception. C. Analysis of the different legislative models adopted to criminalise marital rape and intimate partner sexual violence: i. revision of sexual offences legislation. ii. revision of Criminal or Penal Codes. iii. introduction of gender-based violence or domestic violence legislation.

9 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in internationalInternational and regional standards

1.Origins and developments in International and regional standards

11 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth A. The colonial origins of the marital rape exemption

The origins of the marital rape exemption are invariably In 1765 William Blackstone in Commentaries on the traced back to Sir Matthew Hale, who declared in 1736 Laws of England (1765–69) Book 1, 430 articulated and that a wife gave implied consent to reinforced the dictum of the marital rape exemption in on marriage. He stated as follows: this way when writing of the rights of husband and wife: “the husband cannot be guilty of a rape committed “By marriage, the husband and wife are one person by himself upon his lawful wife, for by their mutual in law: that is, the very being or legal existence of matrimonial consent and contract the wife hath given the woman is suspended during the marriage, or at herself in this kind unto her husband, which she least is incorporated and consolidated into that of the cannot retract.” husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law Hale was the Chief Justice of the Court of the King’s a feme-covert; is said to be covert-baron, or under the Bench between 1671 and 1676. His treatise, the Pleas protection and influence of her husband, her baron, or of the Crown, was published in 1736, 60 years after lord; and her condition during her marriage is called his death in 1676. The above passage is the original her .” written source for what is known in English common law as the husband’s “immunity” from prosecution of In 1889 the English courts first began to question the rape committed against his wife. This immunity from marital rape exemption in the case of R v Clarence. prosecution of marital rape was widely believed In this case, Wills J, agreeing with the majority that the to be a valid legal principle for over 200 years. husband was protected by the marital rape exemption, stated that he did not believe that “as between married Hale’s dictum was not supported by any earlier legal persons, rape is impossible”, and Field J, in his dissenting authorities but, in time, became firmly entrenched in the opinion, said that “there may, I think, be many cases English common law. in which a wife may lawfully refuse intercourse”. Years later, in 1949 in R v Clarke, the courts began Historically, then, the common law had to develop exceptions to the marital rape exemption, entrenched the concept of women as the property with the consequence that a wife’s implied consent to of men and the implied irrevocable consent sexual intercourse would be deemed to be retracted by the woman to sex upon marriage. Rape by a judicial separation order, a of legislation was originally conceived to protect or a non-molestation order. In these circumstances, a man’s property from other men. Through the a husband could be found guilty of rape. process of colonisation British colonies inherited A further whittling away of the marital rape exemption this common law system along with the marital came in 1954 in R v Miller wherein Justice Lynskey rape exemption. stated that a mutual separation agreement could also be sufficient to establish revocation of the wife’s consent. However, he added that where the wife merely left her husband and filed for divorce, her actions were not sufficient for her marital consent to be revoked. Later, in 1976 the decision of Lord Lane in R v Steele stated as follows: “A separation agreement with a non- clause, a decree of divorce, a decree of judicial separation, a separation order in Justice’s court containing a non-cohabitation clause and an injunction restraining the husband from molesting the wife or having sexual intercourse with her are all obvious cases in which the wife’s consent would be successfully revoked”.

12 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

In 1956 and 1976 the English common law was codified In England, the courts were still interrogating the issue of and the statutory definition of rape included the marital the implied consent of the wife in regard to the marital exception in s.1(1)(a) the Sexual Offences (Amendment) rape immunity. In the case of R v Roberts,3 the court Act of 1976 as follows: rejected the defendant’s assertion that the wife’s implied consent became effective again after a non-molestation “1. For the purposes of s.1 of the Sexual Offences Act injunction had expired. However, in 1990 the report 1956 (which relates to rape) a man commits Rape within Marriage published by the rape if – Commission confirmed that the common law marital a. he has unlawful sexual intercourse with a woman rape exemption still existed in England, in spite of the who at the time of the intercourse does not whittling down over the years. consent to it; and Following this Report, three critical cases changed the b. at that time, he knows that she does not trajectory of the marital rape exemption in England. In consent to the intercourse or he is reckless R v R,4 R v C & another,5 and R v J,6 the House of Lords as to whether she to it; and references examined the preceding English cases and found that to rape in other enactments (including the “on grounds of principle there is now no justification following provisions of this Act) shall be for the marital exception in rape”. They further found construed accordingly. that the use of the word “unlawful” in the 1976 Act was surplusage. They reasoned that if the definition was 2. It is hereby declared that if at a trial for a rape intended by Parliament to mean only “outside marriage”, offence the jury has to consider whether a man  it would give a contrary meaning to the same word in believed that a woman was consenting to sexual other laws. Further, the issue of ex post facto laws was intercourse, the presence or absence of reasonable considered on appeal. The husband argued that to grounds for such a belief is a matter to which the convict him of marital rape would amount to an ex post jury is to have regard, in conjunction with any facto conviction. other relevant matters, in considering whether he so believed.” In delivering the of the Court of Appeal in R v R, Lord Lane CJ set out three possible interpretations Here, the definition of rape included the phrase “unlawful of the word “unlawful” in the statutory definition of sexual intercourse with a woman” and, therefore, rape: first, the “literal” solution- that the offence was preserved the common law marital rape exemption. limited to sexual intercourse outside marriage and that It was during this same year of 1976 that South a husband therefore had full immunity against a charge became the first Commonwealth common law of rape of his wife; second, the “compromise” solution to criminalise marital rape but the provisions only partly that the word “unlawful” was to be construed so as removed the exemption. The Criminal Law Consolidation to preserve the exceptions to the husband’s immunity Act Amendment Act 1976 read as follows: “No person which had developed at common law, and to allow shall, by reason only of the fact that he is married to further exceptions as the occasion arose; and third, the some other person, be presumed to have consented to “radical” solution to hold that the word “unlawful” was sexual intercourse with that other person.” However, in surplusage, and to abolish the marital immunity entirely. order for an act of marital intercourse to be rape, the act The Court of Appeal opted for the “radical solution”, required violence or other aggravating circumstances. holding that Hale’s proposition that a wife giving This was, nonetheless, a marked departure from the implied consent to sexual intercourse on marriage was a blanket immunity of the earlier common law position. “common law fiction” which had become “anachronistic and offensive”. It concluded that “the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.”

3 [1986] Crim. L. R. 198. 4 [1991] 1 All E. R. 747. 5 [1991] 1 All E. R. 755. 6 [1991] 1 All E. R. 759.

13 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth A. The colonial origins of the marital rape exemption cont

The House of Lords, whose judgment was delivered In 1994, s.142 of the Criminal Justice and by Lord Keith of Kinkel, fully agreed with this position, Public Order Act introduced a new statutory definition finding that “in modern times the supposed marital of rape as follows: exception in rape forms no part of the law of England”. “1. It is an offence for a man to rape a woman Since it was “clearly unlawful to have sexual intercourse or another man. with any woman without her consent”, the use of the word “unlawful” in s.1 of the Sexual Offences 2. A man commits rape if – Act added nothing and was “mere surplusage”. a. he has sexual intercourse with a person (whether vaginal or anal) who at the time Further concern was expressed at the time that the House of the intercourse does not consent to it; and of Lords had acted beyond its judicial powers in R v R and had come “perilously close to creating a new criminal b. at the time he knows that the person does offence”. Both the Court of Appeal and the House of Lords not consent to the intercourse or is reckless in R v R had anticipated these concerns. However, the as to whether that person consents to it.” House of Lords held that it was not necessary to refer the This section was replaced on 1 May 2004 by s.1 of the matter to Parliament, since this was not “the creation of , providing a still broader a new offence” but “the removal of a common law fiction definition of rape. References to vaginal or anal sexual which has become anachronistic and offensive”, and that intercourse were replaced by references to penile “it was the court’s to act upon it”. penetration of the vagina, anus or mouth. The 1991 case of R v R, therefore, represents the critical turning point for the English common law marital rape exemption wherein the court acknowledged the fundamental right of a wife to bodily integrity. In abolishing the marital immunity in R v R, the English Court of Appeal referred to the “legitimate use of the flexibility of the common law which can and should adopt itself to changing social attitudes”. The House of Lords’ landmark decision in R v R abolished the marital rape exemption in its entirety and unanimously upheld the decision of the Court of Appeal.

Despite the fact that the House of Lords’ opinions cited the Criminal court’s wording that this did not create a new crime, the husband appealed to the European Court of Human Rights claiming a violation of Article 7(1) of the Convention. The court found that a common law court could “exercise their customary role of developing the law through cases” so long as the changes in the law were “reasonably foreseeable”.7

7 21 Eur.H.R. Rep. 363, 375.

14 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards b. Developments in international and regional standards

The fundamental human rights of women have been International covenant on civil enshrined in numerous international and regional and political rights 1966 instruments and elaborated upon in various United Article 7 of the International Covenant on Civil and Nations’ declarations, policy instruments and conference Political Rights (ICCPR) provides that “No one shall be documents, some of which explicitly highlight the State’s subjected to torture or to cruel, inhuman or degrading responsibility to confront and prevent gender-based treatment or punishment”. The Human Rights Committee violence against women, inclusive of marital rape and (HRC), while declining to limit specific acts covered by respect for women’s sexual autonomy. In addition, women’s Article 7, has stated that “the in article 7 rights are protected in many Commonwealth constitutions. relates not only to acts that cause physical pain but also These constitutions, in their recognition of a wide range of to acts that cause mental suffering to the victim”.8 fundamental rights and freedoms such as the right to life, liberty, security, non-discrimination and equal protection of In addition, Article 9 stipulates that “everyone has the the law, are important to the issue of law reform in relation right to liberty and security of person”. Such rights are to marital rape and intimate partner sexual violence. closely linked to women’s right to sexual autonomy which is violated when they are subjected to non- This section discusses key developments in international consensual sex. In its General Comment No. 35 on and regional legal standards in relation to marital rape Liberty and Security of Person (2014), the HRC states, and intimate partner sexual violence. International and “States parties must respond appropriately to patterns of regional legal standards combined with constitutional violence against categories of victims such as... violence provisions fully support the argument for legal reform against women, including domestic violence...”.9 of discriminatory laws and the removal of the marital exemption from domestic criminal or penal codes. ICCPR Article 17 states that no one shall be subjected to arbitrary or unlawful interference with her privacy, International standards family, home or correspondence. In General Comment The early human rights law enacted by the United Nations, No. 28, the HRC provides that States parties “must commonly called the International Bill of Human Rights, provide information to enable the Committee to assess consists of The Universal Declaration of Human Rights, the effect of any laws and practices that may interfere adopted by the United Nations General Assembly in with women’s right to enjoy privacy and other rights 1948, and its implementing covenants, the International protected by article 17 on the basis of equality with Covenant on Civil and Political Rights (ICCPR) and the men. An example of such interference arises where the International Covenant on Economic, Social and Cultural sexual life of a woman is taken into consideration in Rights (ICESCR), which both entered into force in 1976. deciding the extent of her legal rights and protections, While these documents do not explicitly address domestic including protection against rape”.10 violence, they, along with the Optional Protocol to the ICCPR Article 26 provides that: ICCPR, articulate a state’s duty to protect fundamental human rights that are commonly violated in domestic “All persons are equal before the law and are entitled violence cases. Those rights include the right to life, the without discrimination to the equal protection of right to physical and mental integrity, the right to equal the law. In this respect the law shall prohibit any protection of the laws and the right to be free from discrimination and guarantee to all persons equal discrimination. and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

8 Human Rights Committee General Comment No. 20, para.5. 9 Human Rights Committee General Comment No. 35, para.9. 10 Human Rights Committee General Comment No. 28, para.28.

15 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Developments in international and regional standards cont

Article 26 is relevant to women who are survivors of CEDAW Article 1 defines “discrimination against marital rape who have an equal right to enforcement women” as “any distinction, exclusion or restriction of the law. Evidenced patterns of non-enforcement made on the basis of sex which has the effect or may amount to unequal and discriminatory treatment purpose of impairing or nullifying the recognition, in violation of Article 26. The HRC has held that States enjoyment or exercise by women, irrespective of their not only have the duty to protect citizens from having marital status, on a basis of equality of men and their rights violated but also to investigate violations women, of human rights and fundamental freedoms when they occur and to bring perpetrators to justice. in the political, economic, social, cultural, civil or any Regarding marital rape in particular, the HRC has other field”. CEDAW Article 2 requires States Parties recently stated in its observations to Saint Vincent and to condemn discrimination against women in all its the Grenadines in March 2019 that States parties should forms and to pursue by all appropriate means and define more broadly domestic violence and criminalise without delay a policy of eliminating discrimination marital rape. against women, including to undertake: “(b) To adopt appropriate legislative and other measures, A State Party that has ratified the Optional Protocol to including sanctions, where appropriate, prohibiting the ICCPR may be brought before the HRC in the event all discrimination against women;... (f) To take all that it allows for any of the rights contained in the ICCPR appropriate measures, including legislation, to modify or to be violated. abolish existing laws, regulations, customs and practices International covenant on economic, which constitute discrimination against women”. social and cultural rights 1966 CEDAW Article 5 requires States “to modify social As highlighted earlier, marital rape interferes with and cultural patterns” and to eliminate customary women’s right to enjoy and attain the highest standard practices based on ideas of inferiority or stereotyped of physical and mental health. International Covenant roles and to “take all appropriate measures to eliminate on Economic, Social and Cultural Rights (ICESCR) Article discrimination against women in all matters relating to 12 requires that States parties “recognise the right of marriage and family relations.” States Parties are also everyone to the enjoyment of the highest attainable required to afford the same opportunities to men and standard of physical and mental health”. In its General women to decide the number and spacing of children. Comment No. 14 of 2000 on Article 12, the Committee CEDAW Article 12 requires States Parties to take all on Economic Social & Cultural Rights has stated that “[a] appropriate measures to eliminate discrimination against major goal should be reducing women’s health risks, women in the field of healthcare in order to ensure, particularly lowering rates of maternal mortality and on a basis of equality of men and women, access to protecting women from domestic violence.” healthcare services, including those related to family Further, in General Comment No. 22 on the right to planning, whilst CEDAW Article 15 guarantees women’s sexual and reproductive health (2016), the Human Rights rights to equality with men before the law. In the Committee states: “It is also important to undertake context of this report, CEDAW Article 16 requires States preventive, promotional and remedial action to shield parties to take all appropriate measures to eliminate all individuals from the harmful practices and norms discrimination against women in all matters relating and gender-based violence that deny them their full to marriage and family relations. sexual and reproductive health, such as female genital CEDAW General Recommendation No. 19 mutilation, child and and domestic (1992) and sexual violence including marital rape, among others...”11 In 1992, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) Convention on the elimination of formulated General Recommendation No. 19 (GR 19) all forms of discrimination against which defined gender-based violence as a form of women 1979 discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with Convention on the Elimination of All Forms of men, placing it squarely within the rubric of human rights Discrimination Against Women (CEDAW), often referred and fundamental freedoms, and making clear that states to as the International Bill of Rights for Women, was are obliged to eliminate violence perpetrated by public adopted by the UN General Assembly in December authorities and private persons. In GR 19, the Committee 1979 and entered into force on 3 September 1981. specifically defined discrimination under CEDAW to CEDAW explicitly acknowledges that “extensive include “gender-based violence, that is, violence that is discrimination against women continues to exist” directed against a woman because she is a woman or which “violates the principles of equality of rights and that affects women disproportionately. It includes acts respect for human dignity”.

11 Para. 29.

16 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

that inflict physical, mental or sexual harm or suffering, CEDAW General Recommendation No. 35 threats of such acts, coercion and other deprivations (2017) of liberty”. Accordingly, gender-based violence may In General Recommendation No. 35 (GR 35), breach specific provisions of the Convention regardless the CEDAW Committee states: of whether those provisions expressly mention violence. “For more that 25 years, in their practice, States parties Rape as a form of gender-based violence is also have endorsed the Committee’s interpretation. The opinio regarded as discrimination within the meaning of Article juris and State practice suggest that the prohibition of 1 of the CEDAW Convention. This stipulates women’s gender-based violence against women has evolved into rights and freedoms to include: a principle of customary international law.” The right to life. GR 35 underscores the fact that gender-based violence The right not to be subject to torture or to cruel, against women is a definitive violation of human rights inhuman or degrading treatment or punishment. based on women’s right to a life free from gender-based violence and is inseparable from her basic human rights, The right to equal protection according to including the right to health, equality, safety, freedom humanitarian norms in times of international from cruelty and violence as well as the freedom of or national armed conflict. speech and movement. The Committee expands the The right to liberty and security of person. definition of gender-based violence against women to include violation of women’s sexual and reproductive The right to equal protection under the law. health and rights and including forced continuation of The right to equality in the family. pregnancies, forced sterilisations and encroachment on the choice of abortion as gender-based violence The right to the highest standard attainable and constituting discrimination against women. GR of physical and mental health. 35 defines sexual assault, including rape, as a crime The right to just and favourable conditions of work. against women’s right to personal security and their GR 19 illustrates the scope of action required by States physical, sexual and psychological integrity and Parties. The commitment is “not restricted to action recommends that States Parties ensure that the definition by or on behalf of Governments” by State actors but of sexual , including marital and acquaintance the Committee makes clear that States may “also be rape, is based on a lack of freely given consent and responsible for private acts if they fail to act with due takes account of coercive circumstances. diligence to prevent violations of rights or to investigate GR 35 reaffirms that gender-based violence against and punish acts of violence, and for providing women may occur in all spaces – private or public – compensation” (para. 9). The causes of such violence including family and community spaces, workplace as are also addressed, which are found, for instance, well as any virtual or technological space, and outlines in the stereotyped roles of women and men with the how gender-based violence is fundamentally rooted in consequence that violence helps to maintain women rigid social norms concerning gender roles, conventional in “subordinate roles” (para. 11). The Committee lists ideas about masculinity, acceptance of the dominance a number of legal and other measures that have to of male members over their female counterparts, be implemented by States Parties in order to prevent resulting in impunity for gender-based violence in domestic violence, protect potential victims, support various circumstances inclusive of marital rape. the actual victims and punish and rehabilitate the GR 35 considerably expands on the multiple and perpetrators (para. 24). intersecting forms of violence women experience. CEDAW General Recommendation No. 19 laid the Intersectionality is a theme throughout GR 35 that foundation for all additional UN declarations, outcome reinforces inclusivity. CEDAW General Recommendation documents of UN World Conferences and for new No. 28 recognised that “discrimination of women mandate holders, such as the UN Special Rapporteur on based on sex and gender is inextricably linked with violence against women, its causes and consequences, other factors that affect women, such as race, ethnicity, adopted or authorised over subsequent years. religion or belief, health, status, age, class, caste and sexual orientation and gender identity”. GR 35 builds on this, recognising “gender-based violence may affect some women to different degrees or in different ways” and, accordingly, different responses

17 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Developments in international and regional standards cont

must be developed. The catalogue of affecting factors Convention against torture and has also been considerably extended to include other cruel, inhuman or degrading “ethnicity/race, indigenous or minority status, colour, treatment or punishment 1984 socioeconomic status and/or caste, language, religion or belief, political opinion, national origin, marital and/ The prohibition of torture constitutes a principle of or maternal status, age, urban/rural location, health jus cogens. It is a peremptory norm from which no status, disability, property ownership, being lesbian, derogation is permitted. In 2007 the Committee against bisexual, transgender or intersex, illiteracy, trafficking Torture recognised rape as torture for the first time and of women, armed conflict, seeking asylum, being a thus afforded women one of the strongest protections refugee, internal displacement, statelessness, migration, available under international law in the event that heading households, widowhood, living with HIV/AIDS, they are raped. deprivation of liberty, being in , geographical Convention Against Torture and Other Cruel, Inhuman remoteness and stigmatisation of women fighting for or Degrading Treatment or Punishment (CAT) defines their rights, including human rights defenders”.12 “torture” as any act by which severe pain or suffering, General Recommendation 35 is a milestone in the whether physical or mental, is intentionally inflicted on following ways: a person for such purposes as obtaining from him or a third person information or a confession, punishing Recognising that the prohibition of gender-based him for an act he or a third person has committed violence has become a norm of international or is suspected of having committed, or intimidating customary law. or coercing him or a third person, or for any reason Expanding the understanding of violence to include based on discrimination of any kind, when such pain violations of sexual and reproductive health rights. or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official Stressing the need to change social norms and or other person acting in an official capacity. Article 1 stereotypes that support violence, in the context of a provides that the prohibited act be “inflicted by or at the resurgence of narratives threatening the concept of instigation of or with the consent or acquiescence of a in the name of culture, tradition or public official or a person acting in an official capacity”. religion. Despite this, it has been argued that, in light of the Defining clearly different levels of liability of the Committee’s jurisprudence which indicates that it takes State for acts and omissions committed by its agents a broad view of the term “acquiescence”, a woman or those acting under its authority – in the territory of who is raped should be able to argue that authorities the State or abroad – and for failing to act with due have “acquiesced” in her torture if they have failed diligence to prevent violence at the hands of private to provide protection in specific instances or where individuals and companies, protect women and girls they have “created a culture of violence through a from it, and ensure access to remedies for survivors. systematic failure to investigate or prosecute complaints of domestic violence”. Calling unequivocally for the repeal of all laws and policies that directly and indirectly excuse, condone Importantly, General Comment No. 2 expresses concern and facilitate violence. about situations “where the state authorities or others... know or have reasonable grounds to believe that acts of Emphasising the need for approaches that promote torture or ill-treatment are being committed by non-state and respect women’s autonomy and decision-making officials or private actors and they fail to exercise due in all spheres of life. diligence to prevent, investigate, prosecute, and punish”. Such inaction can even be understood to constitute a form of encouragement or de facto permission. Under CAT Article 2, States parties have an obligation to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. On the basis of a plain reading, this must surely include measures to ensure that there is no acquiescence in such acts of torture carried out by non-state actors for purposes of “discrimination of any kind”, as set out in the CAT Article 1, including violence against women.

12 GR 35, para.12.

18 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

States Parties to CAT have been advised to amend the by men”. DEVAW condemns the crucial social definitions in their laws and to criminalise rape including mechanisms by which women are forced into a marital rape, and to address issues of consent. For subordinate position as compared with men and defines example, the Committee in its Concluding Observations violence as that occurring both in “private or public life”. on Mauritius (2017) recommended that Mauritius The Declaration’s definition of violence takes into ”pursue its efforts to modernise its criminal legislation account public and private as well as physical and to address cases of violence against women, including emotional violence. Article 1 of the Declaration domestic violence and trafficking, by inter alia: (a) defines violence against women as: defining marital rape as a specific criminal offence with appropriate penalties”. “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological CAT General Comment No. 2 (2008) harm or suffering to women, including threats of such In General Comment No. 2, the CAT Committee has acts, coercion or arbitrary deprivation of liberty, made clear that where State authorities or others acting whether occurring in public or in private life”. in official capacity or under colour of law, know or Article 2 provides that violence against women shall have reasonable grounds to believe that acts of torture be understood to encompass, but not be limited to, or ill-treatment are being committed by non-State the following: officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish “a. Physical, sexual and psychological violence such non-State officials or private actors consistently occurring in the family, including battering, sexual with the Convention, the State bears responsibility and of female children in the household, - its officials should be considered as authors, complicit related violence, marital rape, female genital or otherwise responsible under the Convention for mutilation and other traditional practices harmful consenting to or acquiescing in such impermissible acts to women, non-spousal violence and violence (para. 18). Since the failure of the State to exercise due related to exploitation; diligence to intervene to stop, sanction and provide b. Physical, sexual and psychological violence remedies to victims of torture facilitates and enables occurring within the general community, including non-State actors to commit acts impermissible under rape, , sexual and the Convention with impunity, the State’s indifference at work, in educational institutions or inaction provides a form of encouragement and/or and elsewhere, trafficking in women and forced de facto permission. The Committee has applied this prostitution; principle to States parties’ failure to prevent and protect victims from gender-based violence, such as c. Physical, sexual and psychological violence rape, domestic violence, female genital mutilation, perpetrated or condoned by the State, wherever and trafficking. it occurs.”

UN declaration on the elimination Article 4 provides that States should condemn violence of violence against women 1993 against women and should not invoke any custom, tradition or religious consideration to avoid their In 1993, the United Nations General Assembly adopted obligations with respect to its elimination. States should UN Declaration on the Elimination of Violence Against pursue by all appropriate means and without delay a Women (DEVAW). This landmark document was a result policy of eliminating violence against women, including of efforts within the United Nations Commission on the taking steps to: Status of Women (CSW) and the Economic and Social Council (ECOSOC). While DEVAW does not have “c. Exercise due diligence to prevent, investigate and, the binding legal authority of a convention or treaty, in accordance with national legislation, punish acts as a United Nations General Assembly declaration, of violence against women, whether those acts are it is universal in coverage and a strong statement of perpetrated by the State or by private persons… principle to the international community. Identifying d. Develop penal, civil, labour and administrative the subordination of women as a principle cause of sanctions in domestic legislation to punish and domestic violence, DEVAW states, “violence against redress the wrongs caused to women who are women is a manifestation of historically unequal power subjected to violence…” relations between men and women, which have led to domination over and discrimination against women

19 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Developments in international and regional standards cont

Importantly, DEVAW provides specific steps member Article 7 requires States Parties to condemn all forms of states should take to combat domestic violence, violence against women and to pursue, by all appropriate including legal system reform. DEVAW provides that means and without delay, policies to prevent, punish states should investigate and punish acts of domestic and eradicate such violence and undertake to take a violence, develop comprehensive legal, political, range of actions including to “[a]pply due diligence to administrative and cultural programs to prevent violence prevent, investigate and impose penalties for violence against women, provide training to law enforcement against women”. officials and promote research and collect statistics The IACHR, in its report on the situation of human rights in relating to the prevalence of domestic violence. Jamaica,13 stated as follows: Regional human rights instruments “The IACHR has also received information indicating Organization of American States (OAS) that violence against women is an alarming problem in Jamaica. Impunity has prevailed with respect to most Inter-American Convention to Prevent, Punish of these acts, which are then reproduced in a context and Eradicate Violence Against Women of social tolerance. The Inter-American Commission 1994 (The Convention of Belém do Pará) reminds the State of Jamaica of its obligation to act The Convention of Belém do Pará recognises all gender- with the due diligence necessary to address the based violence against women as a violation of human prevailing violence against women in the country, and rights and fundamental freedoms. Its definition of gender- to organise its state structure to sanction these crimes based violence against women includes “physical, sexual adequately and to address the discrimination that fuels and psychological violence” that occurs “within the them. During its visit and through the implementation family or domestic unit or within any other interpersonal of its human rights monitoring mechanisms, the IACHR relationship”, which covers intimate partner sexual received information about major forms of violence violence in relationships inclusive of same-sex, cohabiting that affect women throughout the country, including relationships. In its 2011 Report, Access to Justice for domestic violence and rape.” Women Victims of Sexual Violence in Mesoamerica, the In the landmark case of Jessica Lenahan Inter-American Commission on Human rights (IACHR) Gonzales i n 2011,14 the IACHR set out several stated: core principles, including: “The Convention of Belém do Pará establishes a set of The right to equality and non-discrimination goes immediate obligations in cases of violence against beyond requiring the equal protection of the law, women, including the establishment of fair and and mandates states to “adopt the legislative, policy effective legal procedures for women who have been and other measures necessary to guarantee the subjected to violence; the adoption of criminal, civil and effective enjoyment of the rights protected under administrative laws to prevent, punish and eradicate Article II of the American Declaration” (para. 108). violence against women; measures to protect women from imminent acts of violence; and measures to modify Gender-based violence, including domestic violence, legal or customary practices that allow violence against “is one of the most extreme and pervasive forms women and tolerance of it to persist.” of discrimination, severely impairing and nullifying the enforcement of women’s rights” (para. 110). Article 1 of the Convention defines violence against Accordingly, “a State’s failure to act with due women as “any act or conduct, based on gender, which diligence to protect women from violence constitutes causes death or physical, sexual or psychological harm or a form of discrimination and denies women their suffering to women, whether in the public or the private right to equality before the law” (para. 111). sphere.” Article 2 sets out types of violence against women and includes violence “that occurs within the The need to recognise intersecting forms of family or domestic unit or within any other interpersonal discrimination: “certain groups of women face relationship, whether or not the perpetrator shares or has discrimination on the basis of… their young age, shared the same residence with the woman, including, race and ethnic origin, among others, which among others, rape, and sexual abuse”. increases their exposure to acts of violence”. ( p a r a . 113).

13 OEA/Ser.L/V/II.144 Doc. 12, 10 August 2012. 14 Jessica Lenahan (Gonzales) v the , 21 July 2011, Report No. 80/11.

20 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

The IACHR noted that the American Declaration is a “a. enact and enforce laws to prohibit all forms of source of legal obligations for all OAS member states, violence against women including unwanted or including those that have not ratified the American forced sex whether the violence takes place in Convention. Further, it indicated that under Article II private or public; of the Declaration, States may be found responsible b. adopt such other legislative, administrative, social for acts and omissions related to the conduct of non- and economic measures as may be necessary to state actors as well as state actors. This may include ensure the prevention, punishment and eradication responsibility for the failure “to prevent, prosecute of all forms of violence against women.” and sanction acts of domestic violence perpetrated by private individuals” as part of the State’s obligations Several separate articles prohibit violence, in particular, to combat discrimination, both direct and indirect sexual violence, against older women or women (paras 119, 120). In this case the IAHCR cited the case with disabilities (Articles 22 [b] and Article 23 [b]). of Maria Da Penha Maia Fernandes (), 2001 Like CEDAW, the Protocol outlines the obligation of and the Inter-American Court of Human Rights’ judgment States Parties’ to eliminate conceptions, practices and in Claudia Ivette Gonzales (), 2009 in support stereotypes sanctioned by tradition and culture, which of the principle of state responsibility in the context legitimate or tolerate violence against women. of gender-based violence against women. General Comment No. 2 of 2014 on Article 14 African Union of the provides: The Protocol to the African Charter on Human “14. Sex-related violence against women is widespread and Peoples’ Rights on the Rights of Women in in almost all African countries, including rape, incest, Africa 2003 (The Maputo Protocol) violence by a partner in the intimate space, including marital rape and first sexual experiences The Maputo Protocol was drafted pursuant to a that occur by coercion. These acts of violence are some recommendation by the African Commission on Human of the causes of mortality and morbidity, including and Peoples’ Rights which was prompted by a concern the transmission of HIV and other sexually transmitted that despite international commitments, women in infections. They also generate unwanted pregnancies Africa continued to be victims of harmful practices and and the use, by victims, of unsafe abortion with its discrimination which prevented them from fully enjoying consequences such as .” their human rights. Council of Europe The Protocol recognises violence against women as a human rights violation. Article 1 defines “discrimination Convention on Preventing and Combating against women” as “any distinction, exclusion or Violence against Women and Domestic Violence restriction or any differential treatment based on sex 2011 (The ) and whose objectives or effects compromise or destroy The Istanbul Convention is the most far-reaching the recognition, enjoyment or the exercise by women, international treaty to tackle gender-based violence regardless of their marital status, of human rights and against women. It seeks to ensure that governments fundamental freedoms in all spheres of life”. It defines guarantee the rights of all women and girls to a private violence against women as “all acts perpetrated and public life free from violence and it is intersectional against women which cause or could cause them in its construction. It is the first treaty that has explicitly physical, sexual, psychological, and economic harm, prohibited discrimination on grounds of sexual including the threat to take such acts; or to undertake orientation and gender identity. It also explicitly includes the imposition of arbitrary restrictions on or deprivation refugee and migrant women. of fundamental freedoms in private or public life” (emphasis added). Article 4 provides that every woman shall be entitled to respect for her life and the integrity and security of her person and all forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 4(2) requires States Parties to take appropriate and effective measures inter alia to:

21 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Developments in international and regional standards cont

Article 36 on sexual violence (including rape) provides In the 2005 case of MC v ,17 the court found as follows: that Bulgarian authorities had not taken sufficient steps to investigate the rape of a 14-year-old girl. Similarly, in “1. Parties shall take the necessary legislative or other the case of Opuz v ,18 the court found that Turkey measures to ensure that the following intentional had failed in its responsibility to protect Mrs Opuz and conducts are criminalised: her mother from years of domestic abuse and violence. a. engaging in non-consensual vaginal, anal or In these cases it was argued that although state actors oral penetration of a sexual nature of the body (such as police or army officers) did not themselves of another person with any bodily part or object; commit either the rape or domestic violence, Bulgaria and Turkey respectively were still responsible for the b. engaging in other non-consensual acts violation of the human rights of the victims. The Court of a sexual nature with a person; held that states have a positive duty to ensure that c. causing another person to engage in non- individuals are able to enjoy rights to safety, security consensual acts of a sexual nature with and autonomy in all areas of their lives. States must a third person. therefore protect individuals from sexual and domestic 2. Consent must be given voluntarily as the result violence and conduct effective investigations when of the person’s free will assessed in the context such violence takes place. The Court held that both of the surrounding circumstances. Turkey and Bulgaria failed to do so and as a result were in violation of their obligations under the 3. Parties shall take the necessary legislative or other European Convention on Human Rights. measures to ensure that the provisions of paragraph Association of Southeast Asian Nations 1 also apply to acts committed against former or current spouses or partners as recognised by ASEAN Declaration on the Elimination of Violence internal law.“ against Women 2012 The Istanbul Convention explicitly obliges States to The Association of Southeast Asian Nations (ASEAN) “criminalise sexual violence when committed against adopted the ASEAN Declaration on the Elimination former or current spouses or partners, whether living of Violence against Women in 2012. It was a joint or not living in the same residence”. effort of the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children and the European Convention on Human Rights ASEAN Committee on Women, which sought to give In two cases on marital rape in 1994, CR v the United priority to the elimination of violence against women. Kingdom15 and SW v the United Kingdom,16 the European The Declaration calls on States Parties to promote an Court of Human Rights (ECtHR) held that the marital integrated and holistic approach to eliminate violence immunity from the charge of rape was null and void. against women by formulating mechanisms focusing In CR v the United Kingdom, the applicants complained on four key areas: that they had been made retrospectively criminally Providing services to fulfil the needs of survivors. liable for rape within marriage, since at the time of the commission of their offence, there was still an exception Formulating and taking appropriate responses to in the criminal law for intercourse in marriage. The Court offenders and perpetrators. rejected this argument, saying that the applicants must Understanding the nature and causes of violence have anticipated the necessary evolution of the law on against women. marital rape and that it was reasonably foreseeable that they would be prosecuted. The Court found that Changing societal attitudes and behaviour. the concept of lawfulness in The European Convention The Declaration calls on States to intensify efforts to on Human Rights (ECHR) Article 7 does not prevent develop and/or improve existing legislative, educational, the gradual clarification of the criminal law from case social measures and support services aimed at the to case, “provided that the resultant development is prevention of violence against women, including consistent with the essence of the offence and could adoption and monitoring the implementation of laws, reasonably be foreseen”. the dissemination of information, active involvement with community-based players, and the training of legal, judicial, enforcement officers, social workers and health personnel.

15 Case No. 48/1994/495/1577, (1995) 21 EHRR 363. 16 Case No. 47/1994/494/575. 17 40 EHRR 20. 18 (2010) 50 EHRR 28.

22 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

ASEAN Regional Plan of Action on the In implementing Objective 6, States are required to Elimination of Violence against Women 2016 adopt a range of measures, including: The ASEAN Regional Plan of Action on the Elimination Preventive measures and provision of rehabilitation of Violence against Women 2016 defines forms of to victims and punishment of perpetrators. violence against women as encompassing but not Adopting national measures, policies, strategies limited to the following: and legislation to protect women from all forms “a. Physical, sexual, psychological and economic of violence and prevent, prosecute and eliminate violence occurring in the family such as denying violence against women, domestic violence and a partner control over basic resources, battering, crimes against women. sexual abuse of female children in the household, Preventing child and forced marriage through marital rape, dowry-related violence, female all possible means. genital mutilation and other traditional practices harmful to women, non-spousal violence and Combating different forms of violence against violence related to exploitation; women and girls, including domestic violence, and violence against displaced b. Physical, sexual and psychological violence women. occurring within the general community, such as rape, sexual abuse, and Enhancing institutional capacities of governmental intimidation at work, in educational institutions institutions and civil society organisations to prevent and elsewhere, trafficking in women and and combat all forms of violence against women ; at the local and national level. c. Physical, sexual and psychological violence Contributing to eradication of all harmful practices, perpetrated or condoned by the State and/or in particular, female genital mutilation through strong non-state entities, wherever it occurs” (emphasis political support and involvement of religious and added). community leaders.19 Organisation of Islamic Cooperation

OIC Plan of Action for the Advancement of Women 2016 The Organisation of Islamic Cooperation (OIC) is an inter-governmental organisation with a membership of 57 states spread over four continents. At the sixth Session of the Ministerial Conference on the Role of Women in the Development of OIC Member States in Turkey in 2016, the OIC adopted a Plan of Action for the Advancement of Women. Objective 6 of the Plan of Action focuses on the protection of women from violence, providing as follows: “Combating all forms of gender-based violence, human trafficking and other harmful traditional practices against women and girls. Combating different forms of violence against women and girls including deprivation of opportunities and full enjoyment of their rights through preventive measures and provisions of rehabilitation to victims and punishment of perpetrators.”

19 OPWAA, Part III Sub-Objectives, p.9

23 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth c. Due diligence obligations of states to combat violence against women

International law recognises a State’s obligation The Council of Europe’s Convention on Preventing to adhere to a standard of due diligence when and Combating Violence Against Women and Domestic addressing the issue of gender-based violence Violence (the Istanbul Convention) also addresses the prevention of violence against women by promoting against women. This standard consists of four “changes in the social and cultural patterns of behaviour equally important obligations: prevention, of women and men with a view of eradicating prejudices, investigation, prosecution, and reparation. customs, and traditions and all other practices which are based on the idea of the inferiority of women...“. In this section, we will first briefly discuss each of Former Special Rapporteur on VAW, Radhika the four aspects of the international standard before Coomaraswamy developed certain criteria for focusing in depth on the obligation of prevention through determining whether a State has complied with its the enactment of legislation, specifically considering obligation of due diligence, one of which is to determine marital rape and intimate partner sexual violence as whether the State has implemented measures to raise a form of gender-based violence against women. awareness and modify discriminatory policies with the This report recognises that, without additional, significant aim of preventing acts of violence against women. action taken by States Parties, legislation alone will not According to a 2011 report by the Special Rapporteur, prevent gender-based violence against women. Ensuring “[t]he most common first step to prevent acts of violence compliance with legislation along with public campaigns against women... is the enactment of legislation”. In the promoting women’s human rights and a commitment case of Vertido v , however, the Committee to public education are all necessary in fulfilling due on the Elimination of Discrimination Against Women diligence obligations to prevent gender-based violence emphasised that States Parties to CEDAW have an against women. obligation to “take appropriate measures... to modify or abolish not only existing laws and regulations, State responsibility and due diligence but also customs and practices that constitute The “due diligence” standard has been generally discrimination against women”. accepted as a measure of evaluating a State’s Investigation responsibility for violation of human rights by private actors. It is a measure whether a state has acted with A State’s second obligation under the due diligence sufficient effort and political will to fulfil its human rights standard is to properly and effectively investigate crimes obligations. When the state makes little or no effort to involving violence against women. According to the prevent or stop a certain form of private violence, European Convention on Human Rights (ECHR), parties it can be said to have tacitly condoned that violence. shall ensure that investigations into violence against The standard, developed by customary international women are effective and “carried out without undue law, has expanded through case law. delay while taking into consideration the rights of the victim during all stages of the criminal proceedings”. Prevention In M.C. v Bulgaria, the European Court of Human The first obligation of a State in complying with the Rights (ECtHR) ruled that the Republic of Bulgaria due diligence standard is to prevent violence against breached its obligation to properly investigate the women. CEDAW addresses this obligation by calling applicant’s case. The ECtHR found that “the failure on its Parties: of the authorities in the applicant’s case to investigate “[t]o modify the social and cultural patterns of conduct sufficiently the surrounding circumstances was the result of men and women, with a view to achieving the of their putting undue emphasis on ‘direct’ proof of rape. elimination of prejudices and customary and all Their approach in the particular case was restrictive, other practices which are based on the idea of the practically elevating ‘resistance’ to the status inferiority or the superiority of either of the sexes of defining element of the offence”. or on stereotyped roles for men and women”.

24 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

Prosecution The Committee went on to say that “the compliance of the State party’s due diligence obligation to banish The third obligation of a State regarding violence gender stereotypes… needs to be assessed in the light against women is to fairly and effectively prosecute of the level of gender sensitivity applied in the judicial those who commit these crimes. According to the Special handling of the author’s case”. In the end, the Committee Rapporteur, another criterion in determining whether a held that the State had failed to fulfil its due diligence State complies with its obligation of due diligence is the obligations in large part due to the gender stereotyping number of cases prosecuted involving violence against and misconceptions present in the court’s decision. women and the types of judgments handed down in these cases. The ECHR has the same requirement for Reparation prosecution as it does for investigation, that is, that According to the Special Rapporteur, “most human rights parties shall ensure effective prosecution “without undue and humanitarian law treaties provide for a right to a delay while taking into consideration the rights of the remedy,” including CEDAW. She emphasises that the victim during all stages of the criminal proceedings”. “measures of redress need to link individual reparation In her 2011 report, the Special Rapporteur emphasised and structural transformation” which “subvert, instead of the importance of prosecution in cases involving reinforce, pre-existing patterns of… gender hierarchies, violence against women: systemic marginalisation, and structural inequalities…”. “[l]ow levels of prosecution of crimes against women States have an obligation to provide compensation, reinforce the belief among victims that there is no even if State agents are not directly responsible for the systematic and guaranteed judicial response to violence violence. In the case of Opuz v Turkey, the ECtHR ruled against women and that there might be no punishment that the State was required to pay the victim damages for their abusers. This results in underreporting, further due to the anguish and distress she suffered from the minimisation and invisibility of these crimes, and continual violence against her by her husband, and due the reinforcement of the continuum of violence to the failure of the authorities in deterring the violence affecting women.” and providing effective measures of prevention. The Special Rapporteur has even stated that, “in the context In regard to prosecution, the UN CEDAW Committee of norms recently established by the international also made it clear that the accused can be prosecuted to community, a State that does not act against crimes of the full extent of the law, and the State can still be found violence against women is as guilty as the perpetrators”. to have violated its obligations under CEDAW. In the case of Vertido v Philippines, the applicant alleged that The due diligence standard of State responsibility for she suffered “revictimization by the State party after she private actors was discussed in detail by the Inter- was raped;” first, by the acquittal of the accused which American Court of Human Rights in the in the case of “violated her right to non-discrimination” and second, Velasquez-Rodriguez v handed down on 29 by the failure to “ensure that women are protected July 1988. In that case, the Government of Honduras against discrimination by public authorities including was held responsible for violating human rights in the the judiciary”. In its analysis of the court’s decision, case of disappearances. the Committee stressed that, The Inter-American Court of Human Rights held that a “stereotyping affects women’s right to a fair and just trial State must take action to prevent human rights violations and that the judiciary must take caution not to create committed by non-State actors. It articulated one of the inflexible standards of what women or girls should be most significant assertions of State responsibility for acts or what they should have done when confronted with a by private individuals that represents an authoritative situation of rape based merely on preconceived notions interpretation of the international standard on the due of what defines a rape victim or a victim of gender- diligence duty of States. The Court held that: based violence, in general.”

25 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth C. Due diligence obligations of states to combat violence against women cont

CEDAW and the due diligence standard “An illegal act which violates human rights and An important component of a State’s positive obligations which is initially not directly imputable to the under CEDAW is the principle of due diligence, as State (for example, because it is the act of a articulated in Articles 2(e), 2(f) and 5 of the Convention; private person or because the person responsible CEDAW General Recommendations No. 19, No. 28 has not been identified) can lead to international and No. 35 and the CEDAW Committee’s jurisprudence, responsibility of the State, not because of the act all of which impose an obligation on States parties itself but because of the lack of due diligence to prevent discrimination by private actors. Thus, the appropriate measures that States parties are obliged to prevent the violation or to respond to it as to take to prevent discrimination in the context of required by the Convention.” gender-based violence against women includes the criminalisation of the actions of private actors. The Court further reaffirmed that States are “obliged Article 2 states: to investigate every situation involving a violation of “States parties condemn discrimination against women the rights protected by international law”. It discussed in all its forms, agree to pursue by all appropriate means the scope of the duty of States, under Article 1 of the and without delay a policy of eliminating discrimination American Convention on Human Rights, “to ensure” against women and, to this end, undertake:... the rights within the treaty to all persons within their jurisdiction and stated: e. To take all appropriate measures to eliminate discrimination against women by any person, “The State has a legal duty to take reasonable steps to organization or enterprise; prevent human rights violations and to use the means at its disposal to carry out a serious investigation f. To take all appropriate measures, including of violations committed within its jurisdiction, to legislation, to modify or abolish existing laws, identify those responsible, to impose the appropriate regulations, customs and practices which constitute punishment and to ensure the victim adequate discrimination against women”. compensation. This obligation implies the duty of State The use of the standard of due diligence underlines parties to organize the governmental apparatus and, in the State’s duty to protect women effectively from general, all the structures through which public power gender-based violence. In specific reference to CEDAW is exercised, so that they are capable of juridically Article 2, the standard of due diligence is articulated ensuring the free and full enjoyment of human rights.” in CEDAW Committee General Recommendation The Court held that a State fails “to comply with [this] No. 19 of 1992 (GR 19), paragraph 9 as follows: duty... when the State allows private persons or groups “Under general international law and specific human to act freely and with impunity to the detriment of the rights covenants, States may also be responsible for rights recognised by the Convention”. This includes private acts if they fail to act with due diligence to “ensur[ing] that any violations are considered and prevent violations of rights or to investigate and punish treated as illegal acts”. Consistent with this reasoning, acts of violence, and for providing compensation”.20 States should be held accountable for consistent patterns of non-enforcement of criminal law. Thus, what would In accordance with Article 4 of the Declaration on the otherwise be wholly private conduct is transformed into Elimination of Violence against Women, States must a constructive act of State, “because of the lack of due “exercise due diligence to prevent, investigate and, diligence to prevent the violation or respond to it as in accordance with national legislation, punish acts required by the American Convention”. of violence against women, whether those acts are perpetrated by the State or by private persons”. Further, this obligation of due diligence has been more recently elaborated in the jurisprudence of the CEDAW committee context of gender-based violence. In Ms. VK v Bulgaria, the CEDAW Committee (Communication 20/2008) observed that States parties can be held responsible for private acts if they fail to act with due diligence to prevent violations of women’s rights or to investigate and punish acts of violence against women.

20 Para.9.

26 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

At para. 9.3 of the committee’s views, it states that vii. Have appropriate measures been taken in the field “The Committee recalls that, in accordance with its of education and the media to raise awareness GR 19, discrimination within the meaning of article 1 of violence against women as a human rights encompasses gender-based violence against women. violation and to modify practices that discriminate Such discrimination is not restricted to action by or on against women? behalf of Governments. Rather, under article 2 (e) of viii. Are data and statistics being collected in a manner the Convention, States parties may also be responsible that ensures that the problem of violence against for private acts if they fail to act with due diligence to women is not invisible?” prevent violations of rights or to investigate and punish acts of violence, and for providing compensation”. CEDAW General Recommendation No. 28 (2010) In her 1999 report, Violence against women in the family,21 the UN Special Rapporteur on violence against CEDAW General Recommendation No. 28 (GR women, its causes and consequences, Ms. Radhika 28) on core obligations of States under Article 2 Coomaraswamy, attempted to assess State adherence to further underscores at paragraph 13 that Article 2 the due diligence standard. In so doing, she relied upon of the Convention “is not limited to the prohibition the Declaration on the Elimination of Violence against of discrimination against women caused directly or Women and upon GR 19 and considered information indirectly by States parties. Article 2 also imposes a provided in response to the following questions: due diligence obligation on States parties to prevent discrimination by private actors. In some cases, a private “i. Has the State party ratified all the international actor’s acts or omission may be attributed to the State human rights instruments including the Convention under international law. States parties are therefore on the Elimination of All Forms of Discrimination obliged to ensure that private actors do not engage against Women? in discrimination against women as defined in the ii. Is there constitutional authority guaranteeing Convention”. Paragraph 9 of GR 28 states: equality for women or the prohibition of violence “Under article 2, States parties must address all against women? aspects of their legal obligations under the Convention iii. Is there national legislation and/or administrative to respect, protect and fulfil women’s right to non- sanctions providing adequate redress for women discrimination and to the enjoyment of equality. The victims of violence? obligation to respect requires that States parties refrain from making laws, policies, regulations, programmes, iv. Are there executive policies or plans of action administrative procedures and institutional structures that attempt to deal with the question of violence that directly or indirectly result in the of the against women? equal enjoyment by women of their civil, political, v. Is the criminal justice system sensitive to the issues economic, social and cultural rights. The obligation to of violence against women? In this regard, what is protect requires that States parties protect women from police practice? How many cases are investigated discrimination by private actors and take steps directly by the police? How are victims dealt with by the aimed at eliminating customary and all other practices police? How many cases are prosecuted? What that prejudice and perpetuate the notion of inferiority type of judgements are given in such cases? Are or superiority of either of the sexes, and of stereotyped the health professionals who assist the prosecution roles for men and women”. sensitive to issues of violence against women? All States parties to CEDAW have a duty to take positive vi. Do women who are victims of violence have action to address gender-based violence against women support services such as shelters, legal and as mandated by the due diligence standard. The Angela psychological counselling, specialized assistance González Carreño v Case22 can be analysed as and rehabilitation provided either by the an example case regarding the relationship between government or by non-governmental organizations? domestic violence and the due diligence standard. This involved an individual complaint submitted to the CEDAW Committee. The author of the communication was a Spanish woman who was subjected to physical and psychological violence by her ex-husband, during and after the marriage. A visiting regime let the husband

21 E/CN.4/1999/68 10 March 1999. 22 CEDAW Communication No 47/2012.

27 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth C. Due diligence obligations of states to combat violence against women cont see their daughter who was under 18 and continuously to respond appropriately to situations of domestic refused to spend time with her father. Despite the fact violence. It also stressed that stereotypes affect women’s that the author filed more than 30 complaints, the right to impartial judicial process and that the Spanish husband was only convicted once with a fine of 45 judiciary applied stereotyped notions of the nature and euros. On 24 April 2013, after a judicial hearing about seriousness of gender violence in deciding visitation the use of the family residence, the husband told the schedules for abusive parents and their children. author that he was going to “take away what mattered CEDAW General Recommendation most to her”. The next day, during one of the visits with No. 35 (2017) his daughter, the husband shot their daughter, Andrea, and then committed suicide. After these facts, no CEDAW General Recommendation No. 35 (GR 35) compensation was given to the author although elaborates even more fully the due diligence she filed many claims. principle, stating: The Committee considered, inter alia, the State’s “Article 2 (e) of the Convention explicitly provides that responsibility for acts of private persons if it does not States parties are required to take all appropriate act with due diligence to prevent violations of rights measures to eliminate discrimination against women by or to investigate and punish acts of violence and to any person, organisation or enterprise. This obligation, compensate victims. It found that Spain had infringed frequently referred to as an obligation of due diligence, the rights of the author and her deceased daughter underpins the Convention as a whole and accordingly under the Convention. It also recommended the States parties will be responsible if they fail to take State party to strengthen the application of the legal all appropriate measures to prevent as well as to framework, and to provide mandatory training for investigate, prosecute, punish and provide reparation judges and administrative personnel “to ensure that the for acts or omissions by non-State actors which result competent authorities exercise due diligence to respond in gender-based violence against women... Under appropriately to situations of domestic violence”. the obligation of due diligence, States parties have to adopt and implement diverse measures to tackle The situation set out above could have been avoided gender-based violence against women committed if the State Party had provided an effective remedy by non-State actors. They are required to have laws, when the author made the first complaints; this is one institutions and a system in place to address such of the measures that the General Recommendation violence. Also, States parties are obliged to ensure No. 28 highlights to “ensure the practical realisation that these [laws etc.] function effectively in practice, of the elimination of discrimination against women and are supported and diligently enforced by all State and women’s equality with men”. Some States are agents and bodies. The failure of a State party to take characterised by the lack of efficiency of their national all appropriate measures to prevent acts of gender- tribunals and other public institutions, often with less based violence against women when its authorities personnel than required and a lot of work accumulated know or should know of the danger of violence, or due to the insufficiency of economic resources. However, a failure to investigate, prosecute and punish, and to “the cry of inadequate resources is not a valid response provide reparation to victims/survivors of such acts, to claims of a failure to exercise due diligence to provides tacit permission or encouragement to acts of address violence against women”. In other words, gender-based violence against women. These failures a State that does not allocate enough resources or omissions constitute human rights violations.” to address the problem of gender-based violence is in effect perpetuating it. Declaration on the Elimination of Violence Against Women 1993 In the first ruling of its kind against Spain by an international body, the CEDAW Committee found that The Declaration on the Elimination of Violence the State violated the rights of Ángela and her deceased Against Women also calls on States to “pursue by daughter. The Committee indicated that any history of all appropriate means and without delay a policy of gender violence must be taken into account in child eliminating violence against women” and, among other custody and visitation proceedings in order not to place things, at Article 4(e) to “exercise due diligence to gender violence victims, including their children, in prevent, investigate and, in accordance with national danger. It went on to indicate that the application of the legislation, punish acts of violence against women, legal framework must be strengthened in order to ensure whether those acts are perpetrated by the State that the competent authorities exercise due diligence or by private persons”.

28 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

Beijing Platform for Action 1995 In Maria Mamerita Mestanza Chavez v Peru24 in 2000, which dealt with forced sterilisation, the Inter-American The due diligence obligation was also articulated at Commission on Human Rights (IAHCR) addressed the para. 124 and called on States to: “Take integrated need to review and revise existing laws and policy to measures to prevent and eliminate violence against eliminate discrimination against women. women”. It further elaborated actions to be taken by governments as follows: In the 2001 case of Maria da Penha Maia Fernandes v Brazil,25 the IAHCR concluded that Brazil had failed “a. Condemn violence against women and refrain to exercise due diligence to prevent and respond to from invoking any custom, tradition or religious domestic violence despite the clear evidence against consideration to avoid their obligations with respect the accused and the seriousness of the charges. It found to its elimination as set out in the Declaration on the the government in breach of its human rights obligations Elimination of Violence against Women; due to significant judicial delay and incompetence in b. Refrain from engaging in violence against women the investigation of domestic violence. The Commission and exercise due diligence to prevent, investigate found that the case could be viewed as “part of a and, in accordance with national legislation, punish general pattern of negligence and lack of effective acts of violence against women, whether those acts action by the State in prosecuting and convicting are perpetrated by the State or by private persons; aggressors” and that it involved “not only failure to fulfil the obligation with respect to prosecute and c. Enact and/or reinforce penal, civil, labour and convict, but also the obligation to prevent these administrative sanctions in domestic legislation to degrading practices”. punish and redress the wrongs done to women and girls who are subjected to any form of violence, In the Jessica Lenahan Gonzales26 case of 2011, the whether in the home, the workplace, the community IACHR noted that due diligence is a long-standing or society; principle when considering state responsibility under international law, and that there is “broad international d. Adopt and/or implement and periodically review consensus” in terms of how this principle should be and analyse legislation to ensure its effectiveness applied in cases involving violence against women, in eliminating violence against women, emphasising reflected in “General Assembly resolutions adopted the prevention of violence and the prosecution of by consensus, broadly-approved declarations and offenders; take measures to ensure the protection platforms, treaties, views from treaty bodies, custom, of women subjected to violence, access to just jurisprudence from the universal and regional systems, and effective remedies, including compensation and other sources of international law” (paras 123, and indemnification and healing of victims, 124). The IACHR laid out four agreed upon principles and rehabilitation of perpetrators”. for the application of the due diligence principle This call was reiterated during the five-year review in this context. First, States “may incur international of the Beijing Platform for Action in 2000.23 responsibility for failing to act with due diligence to prevent, investigate, sanction and offer reparations The Inter-American Convention on the for acts of violence against women”, including acts Prevention, Punishment and Eradication of Violence against Women 1994 perpetrated by private actors (para. 126). Second, (The Convention of Belém do Pará) “States’ duty to address violence against women also involves measures to prevent and respond to the The Belém do Pará Convention was the first regional discrimination that perpetuates this problem” (para. convention directed singularly at eliminating violence 126). Third, there is a link “between the duty to act with against women and requires States to apply due due diligence and the obligation of States to guarantee diligence to prevent, investigate and impose penalties access to adequate and effective judicial remedies for for violence against women. The Convention contains victims and their family members when they suffer acts detailed provisions regarding the obligations of States of violence” (para. 127). Fourth, some women face a to enact legislation. particular risk of violence because they face multiple forms of discrimination, including girl-children and women of certain ethnic, racial, and minority groups, and this risk “must be considered by States in the adoption of measures to prevent all forms of violence” (para. 127).

23 General Assembly Resolution S-23/3, Annex, para. 69. 24 IACHR Petition 12.191, Friendly Settlement, 22 October 2003. 25 IACHR Case 12.051, Report Reference. April 2001. 26 IACHR Report No. 80/11, 21 July 2011.

29 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth C. Due diligence obligations of states to combat violence against women cont

The due diligence principle goes hand in hand with The ECtHR gave a seminal judgment in relation to the principle of non-discrimination. What this means is domestic violence and state responsibility in 2009, that states are under an obligation to act on cases of Opuz v Turkey.29 The judgment was significant in a violence against women in the same manner as other number of respects. First, the Court held that acts of forms of violence. It requires states to use the same level domestic violence can be sufficiently severe to constitute of commitment in relation to preventing, investigating, inhuman treatment for the purposes of ECHR Article 3 punishing and providing remedies for gender-based (prohibition against torture). Second, it found a violation violence against women as they do with other forms of the State’s positive obligations under ECHR Article 2 of violence. (right to life) and Article 3 for failing to take preventive measures to protect an individual who was at risk of The Protocol to the African Charter on Human and domestic violence. Finally, for the first time the Court Peoples’ Rights on the Rights of Women in Africa (the expressly held that domestic violence constitutes a form Maputo Protocol) addresses violence against women of discrimination against women. under Article 4(2)(a) and establishes obligations related to legal reform under Article 4(2)(b) to adopt legislative, It is now well established under international law that administrative, social and economic measures to ensure violence against women is a form of discrimination the prevention, punishment and eradication of all forms against women and a violation of human rights. States’ of violence against women. obligations to respect, protect, fulfil and promote human rights with regard to violence against women includes European Court of Human Rights the responsibility to prevent, investigate and prosecute In X and Y v the ,27 the European Court of all forms of, and protect women from, such violence and Human Rights (ECtHR) found that the Netherlands had to hold perpetrators accountable. They also have a duty breached its obligations under the European Convention to prevent human rights violations by non-State actors, on Human Rights (ECHR) Article 8 (right to respect for investigate allegations of violations, punish wrongdoers private life) by failing to create appropriate criminal and provide effective remedies to victims. States are legislation applicable to the rape of a mentally impaired accountable for the actions of non-State actors if they young woman. fail to act with due diligence to prevent, investigate or punish such acts and provide an effective remedy. In an important 2003 case on sexual violence, MC v Bulgaria,28 the ECtHR reiterated that a State’s obligation under ECHR Article 1, taken together with Article 3 (prohibition against torture, inhuman or degrading treatment) requires States to take measures designed to ensure that individuals within their jurisdiction are not subject to ill-treatment, including ill-treatment administered by private individuals. The Court held that states have a positive obligation under Articles 3 and 8 “to enact criminal law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution”.

27 No. 8978/80, 26 March 1985. 28 No. 39272/98, 04 December 2003. 29 No. 33401/02, 09 June 2009.

30 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

D. Justification for criminalising non-consensual sexual acts in intimate partner relationships

Several international and regional human rights It is imperative, therefore, that States address the instruments provide that every woman and girl historical, structural and underlying causes and risk have the right to be free from gender-based factors of violence against women and girls and ensure that laws and policies are harmonised to address violence and place obligations on States Parties widespread gender-based violence against women to prevent and punish such violence by, amongst inclusive of marital rape and intimate partner sexual other things, enacting laws to criminalise all forms violence and are in compliance with their international of gender-based violence, including marital rape human rights obligations. It is further incumbent upon and intimate partner sexual violence. States to abolish legislation that discriminates against women and girls, the marital rape exception being one such law that is discriminatory in its intent and effect. Further, the 2030 Agenda for Sustainable Development adopted in September 2015 by the UN General In their 2016 article Criminalising sexual violence Assembly includes under Goal 5 to “eliminate all forms against women in intimate relationships: state of violence against all women and girls in the public obligations under human rights law, Randall & and private spheres” (Target 5.2) and “adopt and Venkatesh argue that “failure to criminalise sexual strengthen sound policies and enforceable legislation for violence perpetrated by a husband (or intimate partner) the promotion of gender equality and the empowerment effectively facilitates and condones a private legal of all women and girls at all levels” (Target 5.C) and space within spousal relationships where sexual assault Target 10.3 which calls on all governments to “ensure and coercion are permissible. This legal abandonment equal opportunity and reduce inequalities of outcome, of married women’s rights to liberty, autonomy, self- including by eliminating discriminatory laws…”. determination and bodily security creates a class of women with lesser legal rights. The state’s insulation of The Human Rights Council (HRC) in its Resolution marital rape from criminal sanction is also commensurate 32/19 of July 2016 expressed its outrage “by the with women’s equal citizenship and equal enjoyment persistence and pervasiveness of all forms of violence of all other human rights” (p.190). Criminalising conduct against women and girls worldwide, including intimate that has previously been condoned or considered partner violence, and emphasised that such violence is acceptable has long been a part of the struggle a violation, abuse or impairment of human rights and, to achieve equality and non-discrimination. as such, is completely unacceptable”. It called upon States to take effective action to prevent violence against CEDAW AND INTIMATE PARTNER VIOLENCE women and girls, including indigenous women and girls. As discussed earlier, CEDAW Committee General The HRC also expressed “concern that violence in the Recommendations No. 19 (1992) and No. 35 (2017) private sphere, including domestic violence, is the most on violence against women, the Declaration on the prevalent and least visible form of violence against all Elimination of Violence Against Women 1993 and other women and girls, and that its consequences are long- international and regional instruments all locate gender- lasting and profound, and affect many areas in the lives based violence against women within the framework of of victims and their communities”. It underscored that inequality between women and men in that all forms “violence against women and girls is rooted in historical of gender-based violence against women constitute a and structural inequality in power relations between form of sex-based discrimination under Article 1 of the women and men, and that all forms of violence against Convention and further that discrimination is a cause women and girls constitute a major impediment to their of such gender-based violence. full, equal and effective participation in society, the economy and political decision-making”.

31 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth D. Justification for criminalising non-consensual sexual acts in intimate partner relationships cont

General Recommendation No. 19 (GR 19) defines GR 35 in cross reference to General Recommendation gender-based violence as a form of discrimination that No. 28 on the core obligation of States parties under seriously inhibits women’s ability to enjoy rights and article 2 and General Recommendation No. 33 on freedoms on a basis of equality with men. It further women’s access to justice confirms that discrimination highlighted at Article 23 that “family violence is one of against women was inextricably linked to other the most insidious forms of violence against women” and factors that affected their lives. The Committee, in that “within family relationships women of all ages are its jurisprudence, has highlighted the fact that such subjected to violence of all kinds” inclusive of rape. GR factors include women’s ethnicity/race, indigenous or 19 also articulated that States may also be responsible minority status, disability, marital status, being lesbian, for private acts if they fail to act with due diligence to bisexual, transgender or intersex. Accordingly, because prevent violations of rights or to investigate and punish women experience varying and intersecting forms of acts of violence. Gender-based violence inclusive of rape discrimination, which have an aggravating negative within the family, therefore, violates the principles of non- impact, the committee acknowledges that gender-based discrimination and substantive equality and States can violence may affect some women to different degrees be held accountable for violations by private actors. or in different ways, meaning that appropriate legal GR 19 specifically recommends that “States parties and policy responses are needed (para.12). should ensure that laws against family violence and In regard to general legislative measures, at para. 29 abuse, rape, sexual assault and other gender-based the Committee recommends that States parties take the violence give adequate protection to all women and following legislative measures that: respect their integrity and dignity”. a. Ensure that all forms of gender-based violence CEDAW General Recommendation No. 35 (GR 35) against women in all spheres, which amount to a explicitly addresses criminalisation of marital rape violation of their physical, sexual, or psychological as a form of gender-based violence against women. integrity, are criminalised and introduce, without Paragraph 21 provides as follows: delay, or strengthen legal sanctions commensurate “Gender-based violence against women constitutes with the gravity of the offence as well as civil discrimination against women under article 1 remedies. and therefore engages all of the obligations in the b. Ensure that all legal systems, including plural legal Convention. Article 2 establishes that the overarching systems, protect victims/survivors of gender-based obligation of States parties is to pursue by all violence against women and ensure they have appropriate means and without delay a policy of access to justice and to an effective remedy in line eliminating discrimination against women, including with the guidance provided in the Committee’s gender-based violence against women. This is an general recommendation No. 33 (2015). obligation of an immediate nature; delays cannot be justified on any grounds, including economic, c. Repeal all legal provisions that discriminate against cultural or religious grounds. general recommendation women, and thereby enshrine, encourage, facilitate, No.19 indicates that in respect of gender-based justify or tolerate any form of gender-based violence violence against women this obligation comprises against them; including in customary, religious and two aspects of State responsibility: for such violence indigenous laws. resulting from the actions or omissions of (a) the States d. Examine gender-neutral laws and policies to ensure party or its actors, and (b) non-States actors” (emphasis that they do not create or perpetuate existing added). inequalities and repeal or modify them if they do so.

32 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

e. Ensure that sexual assault, including rape, is REGIONAL INSTRUMENTS characterised as a crime against women’s right to personal security and their physical, sexual and psychological integrity. Ensure that the definition of The Inter-American Convention on the Prevention, sexual crimes, including marital and acquaintance/ Punishment and Eradication of Violence Against is based on lack of freely given consent, Women (Convention of Belém do Pará) was and takes account of coercive circumstances. Any the first convention to call explicitly for the time limitations, where they exist, should prioritise criminalisation of marital rape in 1994. The the interests of the victims/survivors and give Council of Europe Convention on Preventing consideration to circumstances hindering their capacity to report the violence suffered to competent and Combating Violence against Women and services/authorities. Domestic Violence (the Istanbul Convention) followed suit in 2011. UN DECLARATION ON VIOLENCE AGAINST WOMEN In 2009 the Parliamentary Assembly of the Council Article 2 of the UN Declaration on Violence Against of Europe in Resolution 1691 in regard to marital rape Women, 1993 was the first official document to identify and criminalisation made the following recommendation explicitly martial rape as included in the definition of to States: violence against women. It states: Establish marital rape as a separate offence under “Violence against women shall be understood to their domestic law so as to avoid any hindrance of encompass, but not be limited to, the following: (a) legal proceedings, if they have not already done so. physical, sexual and psychological violence occurring Penalise sexual violence and rape between spouses, in the family, including battering, sexual abuse of cohabitant partners and ex-partners, if they have not female children in the household, dowry-related already done so, and consider whether the attacker’s violence, marital rape, female genital mutilation and current or former close relationship with the victim other traditional practices harmful to women, non- should be an aggravating circumstance. spousal violence and violence related to exploitation” (emphasis added). With the understanding that gender-based violence against women constitutes sex and gender-based Article 4(d) of the Declaration requires States to discrimination, criminalisation of marital rape is a “develop penal, civil… sanctions in domestic legislation critical step in complying with the principles of non- to punish and redress wrongs caused to women who are discrimination and substantive or transformative equality. subjected to violence”. The Beijing Declaration and Platform for Action of 1995 further underscored that violence against women including marital rape is a manifestation of the historically unequal power relations between men and women, and that it is exacerbated by, inter alia, the lack of laws that effectively prohibit violence against women and failure to reform existing laws.30

30 Para. 118.

33 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth E. UN model legislation on marital rape and intimate partner sexual violence

As early as 1996, the United Nations Special Rapporteur to discourage domestic violence and harassment of on VAW, Radhika Coomaraswamy, issued a report women within interpersonal relationships and within the that included as an addendum, A framework for model family and protect women where such violence legislation on domestic violence. She called for the has taken place. criminalisation of domestic violence and an effective This model legislation not only included marital rape criminal justice system that ensured that law enforcement under its definition of domestic violence but also took and judicial officers investigated, prosecuted and into account a broad range of relationships inclusive punished perpetrators according to the due diligence of former spouses, partners and live-in partners. standard. The Special Rapporteur noted, however, that State obligations to address gender-based violence In 1997, the United Nations General Assembly against women went beyond enactment of laws and adopted model strategies and practical measures on criminalisation of violence. She also placed emphasis the elimination of violence against women in the field of on the broader obligations of the State towards violence crime prevention and criminal justice. This model urged prevention through public policies, public education Member States, inter alia, to “[r]evise their laws to ensure and awareness campaigns. The focused attention to all that all acts of violence against women are prohibited”. dimensions of State obligations in addressing domestic In 2006, the Secretary-General’s study identified several violence gave impetus to legislative advocacy and practices that States have used to address gender-based enactment of special legislation on gender-based violence violence against women inclusive of: against women as a necessary step in the process. a. Addressing gender-based violence against women The Special Rapporteur’s model legislation further as a form of gender-based discrimination eg: emphasised the importance of a broad definition of The Spanish Organic Act No. 1/2004 on Integrated domestic violence in line with international standards. Protection Measures against Gender Violence; the In her report, Ms. Coomaraswamy stated that, “The Brazilian Law 11.340/06, the Maria da Penha Law. objective of this model legislation is to serve as a drafting guide to legislatures and organisations committed to b. Removing discriminatory penal laws. lobbying their legislatures for comprehensive legislation c. Enacting gender-neutral legislation eg: on domestic violence.” The model included a declaration The South Africa (Sexual Offences) Act. of purpose, a definition of domestic violence and both civil and criminal provisions. The declaration of purpose d. Adopting specific legislation or legislative provisions provided, inter alia, that States: to criminalise forms of gender-based violence against women, eg: Turkish Penal Code of 2004 explicitly a. Comply with international standards sanctioning criminalised marital rape. domestic violence. e. Treating sexual violence against women as a b. Recognise that domestic violence is gender-specific violation of women’s right to bodily integrity, violence directed against women, occurring within eg: Turkish Penal Code in 2004 which redefined the family and within interpersonal relationships. “Felonies against Public Decency and Family Order” c. Recognise that domestic violence constitutes a serious and “Crimes against Society” to “Crimes against crime against the individual and society which will Sexual Inviolability”. not be excused or tolerated. f. Defining domestic violence as broadly as possible, d. Establish specific legislation prohibiting violence without limiting it to physical violence. eg: domestic against women within interpersonal and family violence legislation in , Namibia, relationships, protecting victims of such violence included emotional, verbal, economic and and preventing further violence. . e. Create a wide range of flexible and speedy g. Defining rape by lack of consent. remedies (including remedies under special domestic eg: Bill C-49 of 1991 in . violence legislation, penal and civil remedies)

34 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

UN Women Handbook Framework for UN WOMEN MODEL FRAMEWORK Legislation on Violence Against Women FOR LEGISLATION ON VIOLENCE In 2012, UN Women published its Handbook AGAINST WOMEN 2012 for Legislation on Violence Against Women. The Model Framework recommends the following: The Handbook includes a model framework for legislation on violence against women which a. Adopting a comprehensive legislative approach, references and built on the standards and studies encompassing not only the criminalisation discussed on page 34. The framework recognises of all forms of violence against women and the specific obligations of States under international the effective prosecution and punishment of law to enact, implement and monitor legislation perpetrators, but also the prevention of violence, addressing all forms of gender-based violence and the empowerment, support and protection of against women. We set out relevant aspects of the survivors. It recommends that legislation explicitly Model Framework in the next pages. recognise violence against women as a form of gender-based discrimination and a violation In advancing a comprehensive human rights-based of women’s human rights. approach to gender-based violence against women, the Framework made specific recommendations b. Legislation should contain provisions for its that are directly relevant to legislation criminalising effective implementation, evaluation and marital rape. monitoring. Legislation should provide an organic link to a comprehensive national action plan or strategy; mandate a budget for its implementation; provide for the elaboration of rules, regulations, and protocols necessary for the law’s full and effective implementation; and require the training of all relevant officials. S.3.2 also recommends that legislation mandate the creation of specialized institutions and officials to implement legislation on violence against women. c. Enactment of legislation in broad definitions of all forms of violence against women in accordance with international human rights standards, and provides specific recommendations as to how domestic violence and sexual violence should be defined. d. Laws should prioritise prevention and provide for a range of measures to be undertaken to this end, including awareness-raising campaigns, sensitisation of the communications media, and inclusion of material on violence against women and women’s human rights in educational curricula. e. Legislation should provide for the empowerment, support and protection of the victim/survivor. It recommends the enactment of legislative provisions that ensure survivors’ access to comprehensive and integrated support services and assistance.31

31 UN Women, Handbook for Legislation on Violence Against Women, New York (2012), pp.1-2.

35 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth E. UN model legislation on marital rape and intimate partner sexual violence cont

Gender-based violence against women Equal application of legislation to as a form of gender-based discrimination. all women and measures to address multiple discrimination In line with DEVAW and the CEDAW definition of discrimination and the General Recommendation 35 The Framework states that legislation should: updating General Recommendation 19, the Model Protect all women without discrimination as Framework specifically recommends that States: to race, colour, language, religion, political Acknowledge that violence against women is or other opinion, national or social origin, a form of discrimination, a manifestation of property, marital status, sexual orientation, HIV/ historically unequal power relations between AIDS status, migrant or refugee status, age or men and women, and a violation of women’s disability; and human rights. Recognise that women’s experience of violence is shaped by factors such as their race, colour, Define discrimination against women as any language, religion, political or other opinion, distinction, exclusion or restriction made on the national or social origin, property, marital status, basis of sex which has the effect or purpose of sexual orientation, HIV/AIDS status, migrant or impairing or nullifying the recognition, enjoyment refugee status, age or disability, and include or exercise by women, irrespective of their targeted measures for particular groups of marital status, on a basis of equality of men women, where appropriate.33 and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field; and This recommendation is particularly relevant for women Provide that no custom, tradition or religious who experience multiple and intersecting forms of consideration may be invoked to justify violence discrimination and who are less likely to report gender- against women.32 based violence against them for fear that they will be humiliated, stigmatised, arrested, deported, tortured Comprehensive legislative approach or have other forms of violence inflicted upon them, The Framework encourages States to be including by law enforcement officials. All victims should comprehensive and multidisciplinary, criminalising be equally protected by law from violence without all forms of violence against women, and any discrimination on the basis of age, race, ethnicity, encompassing issues of prevention, protection, religion, marital status, social status, caste or descent, survivor empowerment and support (health, migration status, employment (including sex work), economic, social, psychological), as well as sexual orientation, gender or gender identity. adequate punishment of perpetrators and availability of remedies for survivors.

The Model Framework cites the Spanish Organic Act on Integrated Protection Measures against Gender Violence of 2004 as an example of this approach.

32 Ibid p.10. 33 Ibid p.11.

36 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

Gender-sensitive legislation Relationship between customary and/or religious law Legislation should be gender-sensitive, and the formal justice system not gender-blind.34 Legislation should state that:

The Brazilian Maria da Penha law is an example of Where there are conflicts between customary gender-sensitive legislation. Some States have chosen and/or religious law and the formal justice gender-neutral legislation such as South Africa’s Sexual system, the matter should be resolved with Offences Act. respect for the human rights of the survivor and in accordance with gender equality General Recommendation No. 35 requires that States standards; and “examine gender-neutral laws and policies to ensure that they do not create or perpetuate existing inequalities The processing of a case under customary and repeal or modify them if they do so”. This position and/or religious law does not preclude it from is also supported by General Recommendation No. 28 being brought before the formal justice system. at para. 16 which reads: “Indirect discrimination Amendment and/or removal against women occurs when a law, policy, programme of conflicting legal provisions or practice appears to be neutral in so far as it relates to men and women, but has a discriminatory effect in Legislation should: practice on women because pre-existing inequalities Provide for the amendment/or removal of are not addressed by the apparently neutral measure. provisions contained in other areas of law, Moreover, indirect discrimination can exacerbate such as family and divorce law, property law, existing inequalities owing to a failure to recognise housing rules and regulations, social security structural and historical patterns of discrimination and law, and employment law that contradict the unequal power relationships between women and men”. legislation adopted, so as to ensure a consistent legal framework that promotes women’s human rights and gender equality and the elimination of violence against women.35 Defining forms of gender-based violence against women Domestic violence legislation should: Include a comprehensive definition of domestic violence, including physical, sexual, psychological and .36 Provide protection at a minimum to individuals who are or have been in an intimate relationship, including marital, non-marital, same-sex and non-cohabiting relationships; individuals with family relationships to one another; and members of the same household.37

34 Ibid p.12. 35 Ibid p.13. 36 Ibid p.22. 37 Ibid p.23.

37 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth E. UN model legislation on marital rape and intimate partner sexual violence cont

Some states have abolished the exception to marital rape Sexual offences legislation should: by removing relevant provisions providing for a marital exception from their law, thereby leaving the definition Define a broad offence of sexual assault of rape broad enough to cover marital rape. Section incorporating rape, including marital rape. 147 of The Criminal Justice and Public Order Act, 1994 Define sexual assault as a violation of bodily of the UK is one such example. Other jurisdictions such integrity and sexual autonomy. as Australia’s and states, Canada, Indonesia, Ireland, , Namibia, New Replace existing offences of rape and Zealand, and South Africa have adopted legislation that “indecent” assault with a broad offence explicitly provides that marriage between the accused of sexual assault graded based on harm. and the victim is not a bar or defence to a prosecution Provide for aggravating circumstances for sexual assault. including, but not limited to, the age of the Because of enduring assumptions that non-consensual survivor, the relationship of the perpetrator sex cannot occur within a marriage or criminal liability and survivor, the use or threat of violence, the cannot attach, it may be important not only to remove presence of multiple perpetrators, and grave explicit marital exceptions from the law and ensure the physical or mental consequences of the attack definition of sexual assault is broad enough to encompass on the victim. marital relationships, but also to enact explicit legislation Remove any requirement that sexual assault providing that marriage or other intimate relationship be committed by force or violence, and is not a defence. Such explicit provision may also be any requirement of proof of penetration, necessary to clear up confusion in some jurisdictions and minimise secondary as to whether the silence of criminal legislation on the of the complainant/survivor in proceedings matter means that marital rape is not a crime, particularly by enacting a definition of sexual assault where old common law judicial may still be that either: considered to apply. Namibia’s section 3 of Combating of Rape Act No. 8 of 2000 explicitly provides that: Require the existence of “unequivocal and “No marriage or other relationship shall constitute voluntary agreement” and requiring proof by a defence to a charge of rape under this Act”. Other the accused of steps taken to ascertain whether jurisdictions such as and state that the complainant/survivor was consenting; or where rape occurs between spouses or intimate partners Require that the act take place in “coercive it is an aggravated offence. circumstances” and includes a broad range Under the Istanbul Convention, Parties are obliged to of coercive circumstances; and “take the necessary legislative or other measures to Specifically criminalise sexual assault within ensure that the provisions of paragraph 1 [criminalisation a relationship (ie: “marital rape”), either by: of sexual violence] also apply to acts committed against former or current spouses or partners as recognised i. Providing that sexual assault provisions by internal law”. apply “irrespective of the nature of the relationship” between the perpetrator and complainant; or ii. Stating that “no marriage or other relationship shall constitute a defence to a charge of sexual assault under the legislation”.38

38 Ibid p.24.

38 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in international and regional standards

No agreed definition of consent to sexual by forcing the prosecution to prove beyond reasonable relations in international law doubt that the complainant/survivor did not consent”. It further recommends defining an expansive list of No international or regional human rights instruments “coercive circumstances” without reverting to an emphasis or standards provide a definition of consent to sexual on use of force or violence. relations and State Parties to, for instance, the Istanbul Convention, enjoy a margin of appreciation in this Inadequate and ineffective legislation criminalising regard. The Explanatory Report to the Convention rape remains a problem in many Commonwealth provides, at para. 193, that “it is however, left to the countries. According to international human rights law Parties to decide on the specific wording of the legislation and standards, a comprehensive definition of rape and the factors that they consider to preclude freely given should include all non-consensual vaginal, anal or oral consent. Paragraph 2 [of Article 36 of the Convention] penetration of a sexual nature of the body of another only specifies that consent must be given voluntarily as the person with any bodily part or object. The Istanbul result of the person’s free will, as assessed in the context Convention requires criminalisation of rape and all other of the surrounding circumstances”. non-consensual acts of sexual nature. There should be no assumption that a victim gives her consent because she The CEDAW Committee has in the past five years urged has not physically resisted the perpetrator irrespective several European states to bring their legislation on rape of whether the perpetrator threatened to use or used in line with international standards, including the Istanbul physical violence or not. In a landmark case, M.C. v Convention, and to define rape on the basis of the Bulgaria, in 2001, the European Court of Human Rights absence of consent. established that lack of violence does not mean consent. The 2010 CEDAW Committee’s decision in Karen Tayag Thus, the decisive factor to determine rape was the lack Vertido v The Philippines provides some guidance around of consent rather than proof of force and resistance assessing whether consent was given. The Committee of the survivor. recommended that the State enact a definition of sexual The countries comprising the United Kingdom (England assault that either: and Wales, and ), all common i. Requires the existence of “unequivocal and voluntary law jurisdictions, all have consent-based definitions agreement” and requiring proof by the accused of despite having only signed but not yet ratified the Istanbul steps taken to ascertain whether the complainant/ Convention to date. (whose laws are heavily survivor was consenting; or based on English common law) has a consent-based definition and has ratified the Istanbul Convention. ii. Requires that the act takes place in “coercive circumstances” and includes a broad range CONCLUSIONS of coercive circumstances. The discussion in this report is not limited to the The International Criminal Court has developed a application of the sexual offences legislation to definition of rape in regard to consent. It refers to the married persons. The UN model legislation calls for non-consensual “[invasion of] the body of a person comprehensive review and reform of sexual offences by conduct resulting in penetration, however slight, of legislation. Partly due to piecemeal development over the any part of the body of the victim or of the perpetrator years, legislation relating to sexual offences has become with a sexual organ, or of the anal or genital opening in some countries either inconsistent or out of date. In of the victim with any object or any other part of the many countries, it remains discriminatory, whether on the body”. Developments in the international criminal law grounds of marital status, gender or sexual orientation have led to the recognition that consent can be given and definitively not in alignment with international norms freely and genuinely only where the free will of one of and standards. It is time, therefore, for the remaining the consenting parties is not overpowered by coercive Commonwealth countries to follow the lead taken by circumstances, and when the person is capable of other countries across the Commonwealth to modernise consenting based on this definition, sexual assault and strengthen the laws in this area by complying with should, therefore, include a broad range of coercive international standards and norms as contained in the circumstances where consent cannot be freely given UN Model legislation. and “consent” should require proof by the accused of steps taken to ascertain whether the complainant/ survivor was, in fact, consenting. The UN Handbook for Legislation on Violence against Women cautions that “definitions of sexual assault based [solely] on a lack of consent may, in practice, result in the secondary victimization of the complainant/survivor

39 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

2.Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

41 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth A. Inadequate legislative protection: Commonwealth studies

In Part 2 of this report, we review current legislative approaches to the criminalisation of marital rape and intimate partner sexual violence in Commonwealth countries. The information contained in this report draws from official legislative and policy sources, human rights literature, and evolving international and regional human rights norms and standards on marital rape and intimate partner sexual violence. It is divided into three subsections. Section A provides a case-study analysis of Commonwealth countries with inadequate legislative protections for victims of marital rape and intimate partner sexual violence. Section B discusses the challenge that religious and customary laws in a plural system pose to legislative reform. Section C outlines three legislative models for the criminalisation of marital rape that typify the hybrid legal cultures that exist within the Commonwealth.

Legislative advances in the criminalisation of marital and perpetrator, and whether or not the couple is legally rape and intimate partner sexual violence have varied separated (common law) or a period of iddah has been considerably among Commonwealth countries. Social, imposed on the woman (Islamic law) under a decree of cultural, religious and political tolerance for intimate judicial separation.41 The States discussed in this section partner sexual violence have thwarted the internalisation — The Bahamas, Saint Lucia, Nigeria and Malaysia — of international human rights legal norms leaving have resisted the internalisation of human rights legal many States without adequate legislative protections norms and do not have adequate legislative protections for victims/survivors of marital rape. Legislative for victims of marital rape or intimate partner sexual instruments are one of the tools available to States to violence. protect women from sexual violence and to provide 1. THE BAHAMAS them access to justice and reparation. Rape is one of many gendered harms that is the main form of sexual International and Regional Human Rights violence addressed by criminal law. Legislation that Obligations specifically addresses marital rape and intimate partner Marital rape and intimate partner sexual violence sexual violence must, at a minimum, fulfil certain criteria constitute acts of gender-based violence prohibited in order to be considered adequate. First, in keeping under international human rights law. By acceding with evolving human rights norms and States’ due to the Convention on the Elimination of All forms of diligence obligations as outlined in Part 1 of this report, Discrimination against Women (CEDAW) on 6 October legislation must clearly define the crime of marital rape 1993, The Bahamas undertook to address these as a broad offence of sexual assault and a violation acts of gender-based violence through the adoption of bodily integrity and sexual autonomy.39 Second, of legislative and other measures.42 At the time of legislation must adopt a consent-based definition of accession, The Bahamas entered reservations to several sexual assault that bears in mind coercive circumstances articles including Article 2, which requires States to so as to minimise secondary victimisation.40 Third, the eliminate discrimination against women in their national definition of rape must be uninhibited by criteria-based constitutions or other appropriate legislation.43 considerations such as the marital status of the victim

39 UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 35: Violence against women (2017), at 29.e. Accessed online: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf UN Women (New York, 2012). “Defining Sexual Violence” in Handbook for Legislation on Violence Against Women, pp. 24-25. Accessed online: http://www.unwomen.org/-/media/headquarters/attachments/sections/library/ publications/2012/12/unw_legislation-handbook%20pdf.pdf?la=en&vs=1502 40 United Nations, General Assembly. (21 December 2010) Resolution 65/228, Strengthening Crime Prevention and Criminal Justice Responses to Violence against Women, Annex, para. 15(c), footnote 22, A/RES/65/228; 41 See, for example: The Malaysian Penal Code (Kanun Keseksaan) (Amendment) Act 2015 [Act A1483] § 375 Rape accessed online: http://www.agc.gov.my/agcportal/uploads/files/ Publications/LOM/EN/Penal%20Code%20%5BAct%20574%5D2.pdf 42 UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13, Article 2. 43 UN CEDAW. (10 April 2006). “Declarations, reservations, objections and notifications of withdrawal of reservations relating to the Convention on the Elimination of All Forms of Discrimination against Women”, CEDAW/SP/2006/2, at 9: “The Government of the Commonwealth of The Bahamas does not consider itself bound by the provisions of article 2 (a), article 9, paragraph 2, article 16, paragraph 1 (h) [and] article 29, paragraph 1, of the Convention.”

42 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

The Bahamas is, however, party to several other Domestic Legal Framework international and regional human rights treaties Firstly, The Bahamas’ Constitution allows for discrimination that require it to uphold the principle of the equality on the basis of sex under Article 26. There have been two between men and women in its constitution and national referenda (2002 and 2016) to amend this discrimination legislation and to prevent and protect women from but both attempts failed. Secondly, the State’s criminal violence in both public and private spheres through law on marital rape typifies an historical attachment to the legislative and other measures. common law implied consent theory of sexual relations As discussed in Part I, marital rape is a violation of within marriage. Under Bahamian law, intimate partner multiple, intersecting, and overlapping human rights.44 sexual violence cannot be classified as marital rape or The Bahamas ratified the Organization of American sexual assault where the perpetrator is the husband; a States (OAS) Convention of Belém do Pará on 3 May wife cannot make a complaint of rape even if she has 1995, the International Covenant on Civil and Political been subjected to threat, coercion, or sexual violence. Rights (ICCPR) and the International Covenant on The Sexual Offences and Domestic Violence Act of 1991 Economic, Social and Cultural Rights (ICESCR) on 23 (as amended in 2014) defines the crime of rape as follows: December 2008, and the Convention Against Torture (CAT) on 31 May 2018.45 The Bahamas has not accepted “3. Rape is the act of any person not under fourteen individual complaint mechanisms nor any inquiry years of age having sexual intercourse with another procedures for any of the UN human rights treaties. person who is not his spouse – A 2015 report prepared by The Bahamas National Task a. without the consent of that other person; Force For Gender Based Violence cited the patriarchal b. without consent which has been extorted “social norms and legal culture” that “protect privacy and by threats or fear of bodily harm; male dominance within the family at the expense of the safety of woman” as the reason why domestic legislation c. with consent obtained by personating has not kept up with emerging international and regional the spouse of that other person; or human rights norms on the causes and consequences d. with consent obtained by false and fraudulent of violence against women, including marital rape.46 representations as to the nature and quality A 2017 visit by UN Special Rapporteur on VAW, of the act”49 (emphasis added). Dubravka Šimonovi, recommended that The Bahamas The crime of “sexual assault by spouse” is possible under “revise or adopt new criminal law provisions to prohibit certain circumstances such as a decree nisi of divorce, marital rape” in keeping with CEDAW General a judicial separation, a separation agreement, or if Recommendation No. 35.47 The Committee on the a restraining order is in place (s.15(1)). Elimination of Discrimination against Women’s (the Committee) most recent concluding observations on The The Sexual Offences (Amendment) Bill 2009 proposed Bahamas’ sixth periodic report echoed these concerns.48 the removal of the words “who is not his spouse” from the definition of rape (s.3), thereby removing any statutory exemption.50 The Sexual Offences (Amendment) Bill 2018 proposed the amendment of s.15 by inserting

44 Further reading: Yllö, Kersti and M. Gabriela Torres, (2016), Marital rape: Consent, Marriage and Social Change in a Global Context, Oxford OUP. 45 Organization of American States (OAS), Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belém do Pará”), 9 June 1994 (A-61); UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171; and UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85. 46 The National Task Force For Gender-Based Violence. (August 2015). “Strategic Plan to Address Gender-Based Violence”, The Commonwealth of The Bahamas, Ministry of Social Services and Community Development, at 9 and 97. Accessed online: https://www.bahamas.gov.bs/wps/wcm/connect/3be7c3ad-862c-4c0f-ac44-a2833552e00b/GBV+REPORT. Final.+August2015.pdf?MOD=AJPERES 47 Šimonović, Dubravka. (28 May 2018). “Report of the Special Rapporteur on violence against women, its causes and consequences, on her mission to the Bahamas [11-15 December 2017]”, Human Rights Council, Agenda Item 3, A/HRC/38/47/Add.2, at 18, para. 73 (h). Accessed online: https://www.ohchr.org/EN/HRBodies/HRC/.../A_HRC_38_47_ Add_2_EN.docx 48 Committee on the Elimination of Discrimination against Women. (14 November 2018). “Concluding Observations on the sixth periodic report of The Bahamas” CEDAW/C/BHS/ CO/6, at 24 (c). See also: Government of The Bahamas. (9 July 2018) “List of Issues and questions in relation to the sixth periodic report of the Bahamas”, Committee on the Elimination of Discrimination against Women 71st Session, 22 October – 9 November 2018, CEDAW/C/BHS/Q/Add.1, at para.s 38-41. 49 An Act to amend the law relating to sexual offences and to make provisions in respect of related circumstances involving parties to a marriage (Sexual Offences and Domestic Violence Act), Cap. 99, 9 of 1991, 10 of 2000, s.I. 36/2005, 2014, ch. 99 § 15.3, added emphasis. Accessed online: http://laws.bahamas.gov.bs/cms/images/LEGISLATION/ PRINCIPAL/1991/1991-0009/SexualOffencesAct_1.pdf 50 Sexual Offences (Amendment) Bill, 2009 (shelved). Accessed online: http://natlaw.com/wp-content/uploads/2014/08/nlw_054173_01.pdf

43 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth A.  Inadequate legislative protection: Commonwealth studies cont

a new subsection (3) to extend the offence of sexual 1995, 53 yet the Government’s slow pace of legislative assault by spouse, as follows: and policy reform efforts have not been in keeping with these and other human rights treaty obligations “15(3) A person who has sexual intercourse with their to criminalise sexual violence. In a report to CEDAW spouse - covering the period 1982–2002, the Government of a. Without the consent of that spouse; or Saint Lucia indicated that the legislative objective of b. Where the actions of the defendant spouse the National Policy for Women focused on creating is of such a kind or in such a manner that, if “appropriate mechanisms for the protection of women the defendant spouse had used reasonable and their children who are victims of sexual violence.”54 caution and observation, it would appear to The 2011 Saint Lucia Constitution Reform Commission the defendant spouse that there is no consent Report acknowledged that treaty compliance required or that there would be great risk of there gender equality to be enshrined in domestic legislation being no consent, he shall be presumed to and concluded that the UN CEDAW “should be have intended to have sexual intercourse implemented and where complementary included in the without the consent of the other spouse, until Constitution”.55 The Commission’s conclusion exposes the it is shown that he reasonably believed that tension between statutory law and the constitutionally the other spouse gave consent, guaranteed principles of equality and non-discrimination common to Commonwealth Caribbean states.56 commits an offence and is liable to a term of A more recent report on Saint Lucia submitted by the imprisonment not exceeding ten years.”51 UN Caribbean subregional team to the Human Rights The proposed amendments removed gendered language, Council in preparation for the Second Cycle Universal provided an expansive definition of consent under s.15(4), Periodic Review (UPR) in 2015 indicated that the and added temporal limitations to the right to file a “legislative framework addressing domestic and sexual complaint of marital rape under s.15(5). Both bills have violence has not been adequately implemented or been shelved amidst a perceived attack on the sanctity of enforced” and “critical shortcomings in the law, such as marriage and religious and family values.52 In order for the the absence of provisions on marital rape” remained.57 draft legislation to be considered adequate: 1) the crime of In short there has been little or no movement on rape would have to be defined under the broad offence of comprehensive legislative reform. sexual assault as a violation of bodily integrity and sexual A possible explanation for why Saint Lucia, along autonomy irrespective of the relationship between the victim with other Commonwealth Caribbean countries, have and perpetrator; 2) the definition of consent could not be resisted the full implementation and enforcement of contingent on penetration, force, aggravating circumstances international and regional human rights is that the or any other factors; and 3) temporal restrictions on the governments have failed to prioritise “third generation right to file a complaint would have to be eliminated thus legal and policy reforms” on violence against women.58 elevating the status of the crime of marital rape to that Thus legal reform efforts have focused more on first and of the crime of rape. second generation reforms such as legislative and policy 2. SAINT LUCIA initiatives concerning intra-family domestic violence and International and Regional Human therapeutic interventions and less on third generation Rights Obligations reforms such as redefining a broad range of sexual offences under the criminal code.59 Also, legislative Saint Lucia ratified CEDAW on 8 October 1982 and reforms have not explicitly addressed “interdependent, the OAS Convention of Belém do Pará on 8 March indivisible and interrelated”60 violations of women’s

51 Sexual Offences (Amendment) Bill, 2018 (shelved). Accessed online: https://www. 56 Constitution of Saint Lucia, Cap. 1.01 revised edition 2006, Chapter 1.1 Fundamental bahamas.gov.bs/wps/wcm/connect/9280b85e-db35-4a54-aedf-49d8caee9384/ Rights and Freedoms. Accessed online: http://www.govt.lc/media.govt.lc/www/ Sexual+Offences%28Amendment%29+Bill%2C+2018.pdf?MOD=AJPERES resources/legislation/ConstitutionOfSaintLucia.pdf Elvy, s.(2015). Postcolonial theory 52 The public discourse surrounding the 2009 proposed bill was analysed in the following of spousal rape: The Caribbean and beyond. Michigan Journal of Gender Law, 22(1), scholarly article: Benjamin, L. and LeGrand, C. (2012). “Sound and Fury: Newspaper 89-168, at 94. Coverage of the Marital Rape Debate in New Providence” 18 International Journal 57 UN Human Rights Council. (24 August 2015) Compilation prepared by the Office of of Bahamian Studies, 16-35. For a discussion of the 2018 amendment see: the United Nations High Commissioner for Human Rights in accordance with paragraph Dames, C. (24 January 2018). “Defiled” The Nassau Guardian. Accessed online: 15 (b) of the Annex to Human Rights Council resolution 5/1 and paragraph 5 of the https://thenassauguardian.com/2018/01/24/defiled/ annex to Council resolution 16/21: Saint Lucia, A/HRC/WG.6/23/LCA/2, at p. 6, 53 UN General Assembly, Convention on the Elimination of All Forms of Discrimination para. 20. Accessed online: https://documents-dds-ny.un.org/doc/UNDOC/GEN/ Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13; G15/284/77/PDF/G1528477.pdf?OpenElement or https://www.ohchr.org/EN/ Organization of American States (OAS), Inter-American Convention on the Prevention, HRBodies/UPR/Pages/LCindex.aspx Punishment and Eradication of Violence against Women (“Convention of Belém do 58 Organization of American States (2010). “Technical Note: Violence Against Women Pará”), 9 June 1994 (A-61). in the Caribbean”, at 3. Accessed online: https://www.oas.org/en/mesecvi/docs/ 54 UN CEDAW. (12 September 2005). “Combined initial, second, third, fourth, fifth, and TechnicalNote-VAWinCaribbean-EN.pdf sixth periodic reports of States parties: Saint Lucia”, CEDAW/C/LCA/1-6, at p. 29, 59 Saint Lucia. Domestic Violence (Summary Proceedings) Act, 1995 (Act No. 7 of 1995), para 5.2. Accessed online: https://documents-dds-ny.un.org/doc/UNDOC/GEN/ 20 April 1995. (Saint Lucia Gazette, 1995, pp. 111-127.). Accessed online: https:// N05/521/12/PDF/N0552112.pdf?OpenElement oig.cepal.org/sites/default/files/1995_lca_act7.pdf 55 Government of Saint Lucia. (March 2011). Report of the Saint Lucia Constitutional Reform 60 See Vienna Declaration and Programme of Action (A/CONF.157/23), adopted by Commission. Castries: Saint Lucia, Government Printing, at 95. Accessed online: http:// the World Conference on Human Rights, held in Vienna, 14–25 June 1993. Accessed www.govt.lc/media.govt.lc/www/resources/publications/FINAL%20REPORT%2030- online: https://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx 03-2011.pdf

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rights associated with marital rape and intimate partner unlawful sexual connection between a husband and a sexual violence such as sexual violence as a violation wife.64 There are also conditionalities associated with of the rights to health.61 The 2006 National Report of the crime of “aggravated sexual assault” which is the Saint Lucia to the Inter-American Commission of Women intentional or reckless transmission of HIV “through (CIM) acknowledged a growing concern about the sexual intercourse or by any other means”.65 HIV non- connection between violence against women and HIV/ disclosure and transmission is the crime rather than AIDS. The report mentions that domestic abuse often specific acts of non-consensual sexual violence that lead “includes some form of sexual violence”; however, the to the transmission of HIV. The Criminal Code’s multiple report is silent on the issue of marital rape.62 These gaps definitions of forms of sexual assault do not adequately in implementation of human rights norms have left Saint criminalise rape within marriage and they ought to be Lucian women particularly vulnerable to marital rape revised to cover a broad offence of sexual assault and and intimate partner sexual violence. a violation of bodily integrity and sexual autonomy.66 Domestic Legal Framework Removing the remaining marital rape exemption and defining a broad offence of sexual assault should, in The Saint Lucia Criminal Code criminalises three the case of Saint Lucia, be accomplished in parallel to offences related to marital rape and intimate partner the amendment of the Domestic Violence Act 1995 and sexual violence: rape, unlawful sexual connection, and the Family Court Act 1994.67 Social and therapeutic aggravated sexual assault. The crimes of rape and techniques with legal services and interventions that are unlawful sexual connection recognise sexual offences provided for under the Domestic Violence Act and with perpetrated by a spouse under limited circumstances.63 the establishment of the Family Court in 1997, must bear Under s.123(3) and (4) of the Criminal Code: in mind the specific needs of victims of marital rape and “3. A husband commits the offence of rape where he has intimate partner sexual violence. The Family Court’s legal sexual intercourse with his wife without her consent jurisdiction could also be expanded beyond domestic by force, fear or the use of a drug or thing with violence to include intimate partner sexual violence and intent to stupefy or overpower her, where there is in marital rape under the broad offence of sexual assault. existence in relation to them — The Organisation of Eastern Caribbean States’ (OECS) a. a decree nisi of divorce or nullity granted under Family Law and Domestic Violence Legal and Judicial the Divorce Act; Reform Project and the Caribbean Court of Justice’s (CCJ) “Model Guidelines for Sexual Offences Cases in the b. a decree of judicial separation granted Caribbean Region” provide guidance in both areas.68 under the Civil Code; 3. NIGERIA c. a separation agreement or where the parties are in fact separated; or International and Regional Human Rights Obligations d. a peace binding order or an order for the husband not to molest his wife or have sexual As a common law jurisdiction, Nigeria has operated intercourse with her including a protection order under a dualist model; international and regional from the Family Court. human rights treaties cannot be enforced domestically unless they have been incorporated through domestic 4. The provisions of subsection (3) apply with the legislation.69 Although Nigeria has ratified a broad necessary modifications to a wife who commits the range of regional and international human rights offence of rape.” treaties, none can become fully domesticated without The crime of “unlawful sexual connection”, which does corresponding legislation at the national, state and not require intercourse to take place, recognises the local levels. Nigeria is a State party to the following same limited circumstances as above with regard to an instruments related to violence against women and

61 See Part I for a discussion of marital rape as a violation of the right to health. 62 Inter-American Commission on Women. (12 November 2006). “National Report: St. Lucia”, 33rd Assembly of Delegates, 13-15 November 2006, San Salvador, , OEA/ Ser.L/II.2.33, CIM/doc.38/06, at 7. Accessed online: http://www.oas.org/es/cim/docs/StLucia2006.pdf 63 Saint Lucia Criminal Code Act 9 of 2004 in force 1 January 2005 (s.I.88/2004). Accessed online: http://www.govt.lc/media.govt.lc/www/resources/legislation/Criminal%20Code. pdf 64 Defined under s.124 of the Saint Lucia Criminal Code Act 9 of 2004 in force 1 January 2005 (s.I.88/2004). 65 Ibid, s.140. 66 There are very few studies on sexual violence in Saint Lucia. A 2016 study highlighted the fact that different government agencies use different definitions and categorisations of “what constitutes sexual violence”. See: Hayes, R. M., S. Dathorne, and C. Taylor. (2016) “Silent No More: A Qualitative Examination of Sexual Violence in Saint Lucia” International Journal of Rural Criminology 3(1): 92-105, at 93-94. 67 Domestic Violence (Summary Proceedings) Act, 1995 (Act No. 7 of 1995), 20 April 1995. (Saint Lucia Gazette, 1995, pp. 111-127) accessed online: https://oig.cepal.org/sites/ default/files/1995_lca_act7.pdf 68 See also: OECS Family Law and Domestic Violence Reform Initiative “Green Paper” (2003) for an explanation of how the OECS model legislation complies with regional and international human rights standards. Accessed online: https://www.oecs.org/lsu-resources/oecs-family-law-and-domestic-violence-reform-initiative-green-paper Guidelines for the pre- process, trial process, and offender’s rehabilitation and management “Model Guidelines for Sexual Offences Cases in the Caribbean Region” Judicial Reform and Institutional Strengthening Project (JURIST), A Project of the Caribbean Court of Justice (CCJ) funded by the Government of Canada. Accessed online: http://www.juristproject.org/images/publications/model_guidelines/ Model-Guidelines-for-Sexual-Offence-Cases.pdf 69 S.12 of the Constitution of the Federal Republic of Nigeria, 1999: 12 (1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. Accessed online: https://www.constituteproject.org/constitution/Nigeria_1999.pdf

44 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 45 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth A.  Inadequate legislative protection: Commonwealth studies cont

the subject at hand: CEDAW (13 June 1985, without encountered by this country, especially the legal duality reservations); the ICESCR (accession 29 July 1993); CAT between Federal and the federated states”.74 In its 2015 (ratification 28 June 2001) and ICCPR (accession 27 concluding observations, the ACmHPR commended July 2009); the African Charter on Human and Peoples’ Nigeria for setting up a working group tasked with Rights (ratification 22 June 1983); and the Protocol to reviewing all ratified human rights treaties for possible the African Charter on Human and Peoples’ Rights on domestication.75 Despite the establishment of this working the Rights of Women in Africa (the Maputo Protocol) group and pressure from local NGOs, the Government (ratification 16 December 2004). It has accepted the of Nigeria has not successfully adopted legislative individual complaint and inquiry procedures under the measures to enforce obligations under CEDAW and Optional Protocol to CEDAW (22 November 2004) the Maputo Protocol.76 and CAT Article 20 (28 June 2001).70 Of the treaties Domestic Legal Framework listed above, the African Charter is the only one that has been fully domesticated at the Federal level through Nigeria is a multi-faith, multi-ethnic federation of states the African Charter on Human and Peoples’ Rights that remains historically attached to the problematic idea (Ratification and Enforcement) Act (“African Charter that sexual offences are an afront to the morality and Act”).71 Simply put, in order for Nigeria to comply honour of family and society, rather than as a criminal fully with human rights treaty obligations, each treaty violation of a woman’s bodily integrity. The crime of rape would have to be enacted into law by the National as “unlawful carnal knowledge” is defined under s.357 Assembly at the Federal level and the states’ Houses of of the Criminal Code, applicable to the Southern states: Assembly would have to be encouraged to do the same. “ 3 5 7. Any person who has unlawful carnal knowledge Furthermore, where applicable, religious and customary of a woman or girl, without her consent, or with law would have to be amended at the local level to her consent, if the consent is obtained by force or reflect the changes in national and state legislation. by means of threats or intimidation of any kind, Nigerian women experience varying levels of legal or by fear of harm, or by means of false and protections due to their geographic location and ethnic/ fraudulent representation as to the nature of religious affiliation.72 The CEDAW Committee has been the act, or, in the case of a married woman, by very clear on the subject of the federal character of personating her husband, is guilty of an offence Nigeria and domestic implementation: “the internal which is called rape.”77 governance arrangements in a State party… do not The original intent of the law was to criminalise rape in absolve the State party of its obligations under the the context of abduction; therefore, non-consensual sex 73 Convention”. To this end, The CEDAW Committee has between a husband and a wife is excluded. Section highlighted the fact that Nigeria lacks the necessary 360, under the same heading, defines legal and constitutional framework to strengthen the against a woman as a misdemeanour, for example.78 implementation of the Convention. The Committee has The Criminal Code definition of rape is inadequate consistently expressed this concern since the submission because it does not: define sexual violence as a of Nigeria’s initial report in 1987 to its most recent report violation of bodily integrity, criminalise a broad offence submitted in July 2017. The African Commission on Human of sexual assault, criminalise sexual assault within and Peoples’ Rights’ (ACmHPR) Special Rapporteur on a relationship, and further, the definition requires Women’s Rights in Africa recognised that Nigeria’s federal penetration as proof of rape. character and peculiar legal architecture posed a threat to the realisation of women’s rights and recommended that Under the federal system, s.282 of the Penal Code ACmHPR “organise and undertake at least one mission applicable to Northern States defines rape as an per year to Nigeria to assess the numerous problems “unnatural and indecent offence against the person” as:

70 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85; UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13; UN General Assembly, Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, 6 October 1999, United Nations, Treaty Series, vol. 2131, p. 83; Organisation of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982); African Union, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, 11 July 2003. 71 African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap. 10, Law of the Federation of Nigeria, 1990. 72 Nigeria has 36 federated states and a Federal Capital Territory. 73 UN Committee on the Elimination of Discrimination against Women (24 July 2017) “Concluding observations on the combined seventh and eighth periodic reports of Nigeria”, CEDAW/C/NGA/CO/7-8, at p. 3, para. 10. 74 African Union African Commission on Human and Peoples’ Rights (23 April – 1 May 2001), “Item 7b: Activity Report of the Commissioners: Commissioner Julienne Ondziel-Gnelenga (Visit to Nigeria)” DOC/OS(XXIX)/217/5, at p. 7. Accessed online; http://www.achpr.org/files/sessions/29th/mission-reports/nigeria/achpr29_misrep_specmec_women_ nigeria_2001_eng.pdf 75 ACmHPR (4-18 November 2015) “Concluding Observations and Recommendations on the fifth Periodic Report of the Federal Republic of Nigeria on the Implementation of the African Charter on Human and Peoples’ Rights (2011 – 2014), at p. 3, para. 17. Accessed online: http://www.achpr.org/files/sessions/57th/conc-obs/5th-2011-2014/concluding_ observations_nigeria_5th_sr_eng.pdf 76 The Gender and Equal Opportunities Bill 2010 was voted down in 2016. Accessed online: http://www.aacoalition.org/images/Gender_and_Equal_Opportunities_Bill_National.pdf See, for example, The Domestication of CEDAW, the Civil Resource Development and Documentation Centre (CIRDDOC) (published on line by the National Coalition on Affirmative Action in Nigeria). Accessed online: http://www.aacoalition.org/domistic_cedaw.html 77 Chapter 30: on Females: Abduction. Criminal Code Cap “C38” Laws of the Federation, s.357 2004. Accessed online: https://www.refworld.org/docid/49997ade1a.html 78 Ibid, Chapter 30, s.360.

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“1. A man is said to commit rape who, except in the harmful traditional practices.81 It is unclear whether the case referred to in subsection (2) of this section, VAPP, which is currently applicable only to the Federal has sexual intercourse with a woman in any of the Capital Territory and would require implementing following circumstances – legislation at the state level, criminalises marital rape. a. against her will; Gender-based violence or domestic violence legislation has been enacted in six states: Ebonyi, Jigawa, Imo, b. without her consent; Cross River, Lagos and Ekiti.82 c. with her consent, when her consent has Ekiti State has explicitly prohibited all forms of gender- been obtained by putting her in fear of death based violence including rape, sexual assault and other or of hurt; forms of sexual violence.83 Lagos State has defined “domestic violence” to include “sexual exploitation d. with her consent, when the man knows that he is not including, but not limited to rape, incest and sexual her husband and that her consent is given because assault”. 84 Other Bills have been proposed at the she believes that he is another man to whom she is national level, these include the now shelved Sexual or believes herself to be lawfully married; Offences Amendment Act 2003 (Bill 2013)85 and a e. with or without her consent, when she is under more comprehensive Bill “to incorporate and enforce fourteen years of age or of unsound mind. certain provisions of the United Nations Convention on 2. Sexual intercourse by a man with his own wife the Elimination of All Forms of Discrimination Against is not rape, if she has attained to puberty. Women, the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Explanation: Mere penetration is sufficient to constitute National Gender Policy, and other matters connected the sexual intercourse necessary to the offence of therewith” (Gender and Equal Opportunities Bill 2010), rape.”79 which was rejected during the second reading based Both the Criminal Code and Penal Code contain gender- on the belief that the Bill conflicted with cultural and specific definitions of rape where only a man can rape religious values.86 This Bill, introduced by female Senator a woman. In the case of the Penal Code, rape is defined Abiodun Olujimi of Ekiti, covered all forms of violence as penetration through sexual intercourse, excluding against women; it defined abuse, including sexual rape by a foreign object. The Nigerian Government’s abuse, as that which “interferes with the integrity of a explanation of the limitations of the codes state that, female or male human being” and prohibited all forms “in a traditional setting, spousal rape is inconceivable… of violence against women, “whether the violence takes a husband cannot be charged with marital rape. Once place in the private, family or public sphere, including the marriage is subsisting and the wife has obtained unwanted or forced sex, or traditional, religious, or puberty then any sexual intercourse with her is never cultural practices harmful to the health, wellbeing and rape.”80 As rape is the main form of sexual violence integrity of women”.87 In the absence of comprehensive addressed under criminal law, in order for marital rape legislation on gender-based violence at the national and to be criminalised, both the Criminal Code and the Penal state levels, marital rape will continue to be treated as a Code would have to be amended to include a broad legal impossibility for the majority of Nigerian women. definition of sexual assault. 4. MALAYSIA There are several examples of legislative reform efforts International and Regional aimed at addressing gender-based violence worth Human Rights Obligations mentioning. The Violence Against Persons (Prohibition) Act 2015 (VAPP) does not acknowledge violence against Malaysia has only ratified three of the nine core UN women as a form of discrimination, however, it does international human rights treaties due in part to the negative prohibit all forms of gender-based violence including reception of international human rights norms by religious rape, female genital mutilation, spousal battery and and culturalist organisations and parties.88 Malaysia, like

79 S.282, Penal Code Act, Chapter 53, LFN, 1990. Accessed online: https://www.africanchildinfo.net/clr/Legislation%20Per%20Country/Nigeria/nigeria_penal-north_1960_en.pdf http://oceansbeyondpiracy.org/sites/default/files/Nigeria_Penal_Code_Act_1960.pdf 80 See F. Banda, Woman, Law and Human Rights: An African Perspective, (2005) Oxford: Hart Publishing, at p.174. Banda mentions the Constitutional Rights Project Communiqué (1995) “Seminar on Discriminatory Laws and Practices Against Women in Nigeria” in Constitutional Rights Project Unequal Rights: Discriminatory Laws and Practices against Women in Nigeria (Lagos: Constitutional Rights Project). 81 Violence Against Persons Prohibition (VAPP) Act of 2015. Accessed online: http://lawnigeria.com/LawsoftheFederation/Violation-Against-Persons-%28Prohibition%29-Act%2C-2015.html 82 Immigration and Refugee Board of Canada, Nigeria: Domestic violence, including Lagos State; legislation, recourse, state protection and services available to victims (2011-October 2014), 10 November 2014, NGA104980.E accessed online: https://www.refworld.org/docid/548168e14.html 83 Under Section B. Types or Forms of Gender Based Violence, Ekiti State Gender-Based Violence (Prohibition) Law §32 (2011) (Nigeria). Accessed online: https://cheld.org/wp-content/ uploads/2012/05/Ekiti-Gender-Based-Violence-Prohibition-Law.pdf 84 S.18 Interpretation, Lagos State law: The Protection Against Domestic Violence Law (2007). Accessed online: https://www.dsvrtlagos.org/pdfs/PROTECTION%20AGAINST%20 DOMESTIC%20VIOLENCE%20LAW%202007.pdf 85 Sexual Offences Amendment Act 2003 (Bill 2013). Accessed online: http://www.nass.gov.ng/document/download/1347 86 The Gender and Equal Opportunities Bill 2010, as amended 2011. Accessed online: http://www.aacoalition.org/images/Gender_and_Equal_Opportunities_Bill_National.pdf 87 Ibid , sections 2. Interpretation and 18. Prohibition of violence against women. 88 Strait Times (20 November 2018). “Malaysia’s leaders backtrack on ratifying UN human rights treaty”. Accessed online: https://www.straitstimes.com/asia/se-asia/malaysias-leaders- backtrack-on-ratifying-un-human-rights-treaty (with specific reference to ICERD and the United Malays Organisation and Parti Islam SeMalaysia).

46 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 47 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth A.  Inadequate legislative protection: Commonwealth studies cont

other Commonwealth countries, is dualist in nature and Plan of Action to the Elimination of Violence Against Women, the full domestication of international human rights treaty which defines marital rape, according to international human obligations would require amending discriminatory clauses rights norms, as a specific form of violence against women of the Constitution and enacting implementing legislation.89 and calls on member states to address gaps in legislation that Structural factors have also impeded the domestication of impact violence against women.94 Malaysia has also signed international human rights norms: the judicial power of the on to the 2016 OIC Plan of Action for the Advancement of Federation includes a parallel structure of civil law courts Women (OPAAW), which has a stated objective to protect that operate alongside Islamic law (Syariah) courts, which women from violence and combat all forms of gender-based are applicable to Muslims only depending on their state violence.95 90 of residence. Malaysia acceded to the CEDAW on 17 Domestic Legal Framework February 1996 with reservations, and has yet to accept the individual complaint procedure under the Optional Protocol. The Malaysian Penal Code (Kanun Keseksaan) criminalises Upon acceding to CEDAW, Malaysia entered the following non-consensual sexual intercourse committed by a husband 96 general reservation that is against the object and purpose against his wife under limited circumstances. Under s.375 of the treaty: of the Penal Code, the definition of rape, which requires penetration to prove sexual intercourse, provides the “The Government of Malaysia declares that Malaysia’s following exceptions and explanations: accession is subject to the understanding that the provisions of the Convention do not conflict with the “Explanation: Penetration is sufficient to constitute the provisions of the Islamic Shari’a law and the Federal sexual intercourse necessary to the offence of rape. Constitution of Malaysia.”91 Exception: Sexual intercourse by a man with his own wife Under CEDAW, States’ obligation to criminalisation of by a marriage which is valid under any written law for marital rape is part of a broader effort to enhance the legal the time being in force, or is recognised in Malaysia as protection of women from gender-based violence, where, valid, is not rape. violence against women constitutes a form of discrimination. Explanation 1: A woman — Obligations under CEDAW Article 2 are “inextricably linked a. living separately from her husband under a decree of with all other substantive provisions of the Convention”.92 judicial separation or a decree nisi not made absolute; or As it stands, CEDAW is “not yet part of the [Malaysian] domestic legal system and thus its provisions are not b. who has obtained an injunction restraining her enforceable in domestic courts” unless they have been husband from having sexual intercourse with her, domesticated through legislative measures.93 shall be deemed not to be his wife for the purposes of this section. Although there are no regional human rights mechanisms in Asia, Malaysia as a member of the Association of Southeast Explanation 2: A woman — Asian Nations (ASEAN) and the Organisation of Islamic A Muslim woman living separately from her husband Cooperation (OIC) and as such has committed to a number during the period of ‘iddah, which shall be calculated in of soft law declarations that speak to the importance of accordance with Hukum Syara’, shall be deemed not to protecting women from gender-based violence. Malaysia is a be his wife for the purposes of this section.”97 signatory to the 2012 ASEAN Declaration on the Elimination Section 375(A), enacted in 2007, introduces the crime of of Violence Against Women and the 2016 ASEAN Regional “Husband causing hurt in order to have sexual intercourse”:

89 The Constitution “safeguards the special position of the Malays and natives of any of the States of Sabah and Sarawak”. See Article 153 (1). Federal Constitution as at 1 November 2010, Printed with the Consent of the Yang Di-Pertuan Agong Pursuant to Article 160A of the Federal Constitution. Accessed online: http://www.agc.gov.my/agcportal/uploads/files/ Publications/FC/Federal%20Consti%20(BI%20text).pdf 90 See Article 121. (1), Federal Constitution as at 1 November 2010, Printed with the Consent of the Yang Di-Pertuan Agong Pursuant to Article 160A of the Federal Constitution. Accessed online: http://www.agc.gov.my/agcportal/uploads/files/Publications/FC/Federal%20Consti%20(BI%20text).pdf 91 United Nations Treaty Collection, Status as at 28-06-2019, 8. Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 December 1979. Accessed online: https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-8&chapter=4&clang=_en#78 fn. 78. As of 19 July 2010, Malaysia did not consider itself bound to CEDAW Articles 9(2), 16(1) (a0, 16 (1) (c), 16 (1) (f) and 16 (1) (g). 92 UN Committee on the Elimination of Discrimination against Women (16 December 2010) “General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women” CEDAW/C/CG/28, at p. 2, para. 6. 93 UN Committee on the Elimination of Discrimination against Women (9 March 2018). Concluding observations on the combined third to fifth periodic reports of Malaysia, CEDAW/C/ MYS/CO/3-5, at p. 2, para. 11. Note: In Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors (Noorfadilla), High Court of Malaya At Sha Alam, State of Selangor Darul Ehsan, (Judgement July 2011) the Court accepted the definition of discrimination against women as defined by Article 1 of CEDAW and as a violation of Article 8(2) of the Federal Constitution (Opinion para. 4, p. 9) Accessed online: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-justice/Noorfadilla%20Ahmad%20Saikin%20v.%20 Chayed%20Basirun%20%26%20Others.PDF 94 ASEAN. (2012). Declaration on the Elimination of Violence Against Women in the ASEAN Region. Accessed online: https://asean.org/?static_post=declaration-on-the-elimination-of- violence-against-women-in-the-asean-region-4; ASEAN Regional Plan of Action on the Elimination of Violence against Women 2016 accessed online: https://www.asean.org/wp-content/ uploads/2012/05/Final-ASEAN-RPA-on-EVAW-IJP-11.02.2016-as-input-ASEC.pdf 95 Organisation of Islamic Conference. (2016). Plan of Action for the Advancement of Women (OPAAW), Objective 6. Accessed online: https://www.oic-oci.org/ docdown/?docID=2918&refID=1110 Organisation of Islamic Conference. (1990). Cairo Declaration on Human Rights in Islam http://hrlibrary.umn.edu/instree/cairodeclaration.html 96 Penal Code (Kanun Keseksaan) (Amendment) Act 2015 [Act A1483] § 375 Rape. Accessed online: http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/ Penal%20Code%20%5BAct%20574%5D2.pdf As amended February 2018 http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Penal%20Code%20ACT%20 574%20-%20TP%20LULUS%2021_2_2018.pdf 97 Penal Code (Kanun Keseksaan) (Amendment) Act 2015 [Act A1483], s.375, p.205.

48 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 49 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

“Any man who during the subsistence of a valid marriage against a perpetrator. Similarly, the harmonisation of Syariah causes hurt or fear of death or hurt to his wife or any other law must take place at the state level. person in order to have sexual intercourse with his wife CONCLUSION shall be punished with imprisonment for a term which may extend to five years.”98 The states analysed in this section — The Bahamas, Saint Lucia, Nigeria and Malaysia — have resisted the This crime carries the punishment of imprisonment up to internalisation of human rights legal norms and do not have five years, whereas all other categories of rape carry the adequate legislative protections for victims of marital rape punishment of a minimum of eight years to a maximum of and intimate partner sexual violence. The fact that these 30 years and may also include whipping punishments.99 states exhibit varying levels of social, cultural, and religious The wording of this crime of “husband causing hurt” was tolerance for intimate partner sexual violence, will continue a result of a clash between the views of the Parliamentary to thwart the internalisation of international human rights Select Committee on the Review of the Penal Code and legal norms. The Declaration on the Elimination of Violence religious authorities.100 It is similar to s.282(1)(a) against Women 1993 cautions States to not “invoke any of the Penal Code of the Northern States of Nigeria. custom, tradition or religious consideration to avoid their Given international human rights norms and given obligations with respect to [the elimination of violence Malaysia’s dual legal system, the current legislation is against women]”.105 There are very clear steps necessary inconsistent and inadequate in protecting victims of sexual for States to amend their legislation to fulfil certain criteria assault in marriage including minors because marriage in order to be considered adequate in the protection of remains a shield for perpetrators. The marital rape exception victims of sexual violence in the private sphere. First, they under s.375 is written in such a way as to treat perpetrators must either remove the marital rape exception or broadly of certain faith backgrounds differently by applying define rape as sexual assault based on harm irrespective marriage and family law requirements from either civil law of the relationship between the perpetrator and victim. or Syariah law, which creates different ages of consent Second, they must seek to harmonise any aspects of their (the age of puberty, 16 years, or 18 years).101 As are the two explanations, which apply to non-Muslim and Muslim constitution, criminal codes, sexual offences codes, and/ women accordingly and set up differing circumstances or domestic violence legislation that are not consistent with where non-consensual sex would be considered marital international human rights norms. rape in the case of separation or divorce. These gaps in Sexual violence is a form of discrimination and rape is legislative protections were partially addressed through an the main form of sexual violence addressed by criminal expanded definition of sexual violence under the Domestic law. In the case of The Bahamas and Saint Lucia, a Violence Act 1994. The Domestic Violence Act 1994 as historical attachment to the common law implied consent amended defines “domestic violence” as the commission of theory of sexual relations within marriage, coupled with any of the following acts including, “(c) compelling the victim resistance from religious leaders, means that both these by force or threat to engage in any conduct or act, sexual or States have gaps in their legislative instruments and other otherwise, from which the victim has the right to abstain”.102 policies and tools that might provide women with access It provides civil remedies to victims of domestic violence in to justice and reparation. Nigeria and Malaysia, as States the form of protection orders and compensation in respect of a federal character with diverse populations, face a of injury or damage.103 The Child Act 2001, which repealed greater challenge due to their unique legal architecture the Women and Girls Protection Act 1973, did not address designed to maintain their legal and political order post- specific sexual offences, which prompted the passing of the Sexual Offences Against Children Act 2017, which provides independence. In order for marital rape to be criminalised for physical and non-physical sexual assault on a child.104 In in, for example, the Northern Jigawa State of Nigeria, the order for marital rape and intimate partner sexual violence Penal Code would have to be amended, any state level to be criminalised in Malaysia, a broad crime of sexual legislation would have to be amended, and both would assault must be defined as a violation of bodily integrity and have to be harmonised with Islamic law as it applies to sexual autonomy irrespective of the nature of the marital Muslims with consideration given to minority religious relationship between the perpetrator and the victim. And populations resident within the state. The difficulty in where relevant, legislation covering sexual violence, must accomplishing this exercise of legal harmonisation is be amended so that appropriate charges may be brought revealed in the case of Malaysia.

98 Ibid, s.375(A), p. 205-206. 104 Women and Girls Protection Act 1973 (repealed by the Child Act 2001 [Act 611]). 99  Ibid, s.376 (1-4), p. 207-208. s.16 defined with a marital exception. Accessed online: https://www. 100 See: Indramalar, s.(9 November 2018). “Sexual assault within marriage is rape — our wcwonline.org/pdf/lawcompilation/Malaysia_WomenAndGirlsProtectionAct1973. rape laws need to include married couples too”, Media Group. Accessed pdf Child Act 2001 [Act 611] (Malaysia). Accessed online: http://www.agc.gov. online: https://www.star2.com/family/2018/11/09/sexual-assault-marital-rape/. my/agcportal/uploads/files/Publications/LOM/EN/Act%20611.pdf Part IV Offences 101 The Malaysia Syariah legal framework is discussed in more detail under s.2 The Removal Relating to Sexual Assault, s.14 Physical sexual assault on a child and s.15 Non- of the Marital Rape Exemption: The Challenge of Religious and Customary Law. physical sexual assault on a child. Children Act 2017 [Act 792] (Malaysia). Accessed 102 Domestic Violence Act, 1994, s.2, Interpretation, p.7. Accessed online: https://www. online: http://www.federalgazette.agc.gov.my/outputaktap/aktaBI_20170707_ wcwonline.org/pdf/lawcompilation/malaysia_DVact1994.pdf WJW008739BI.pdf 103 Domestic Violence Act, 1994, Part II, s.4(1), s.10. Accessed online: https://www. 105 UN General Assembly, Declaration on the Elimination of Violence against Women, 20 wcwonline.org/pdf/lawcompilation/malaysia_DVact1994.pdf Domestic Violence December 1993, A/RES/48/104, Article 4. Accessed online: http://www.un.org/ (Amendment) Act 2017 (Act A1538) to amend the Domestic Violence Act, 1994. documents/ga/res/48/a48r104.htm. Accessed online: http://www.federalgazette.agc.gov.my/outputaktap/20170921_ A1538_BI_WJW009193%20BI.pdf

48 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 49 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Removal of the marital rape exception: the challenge of religious and customary law

Within the Commonwealth there are many 1. Do the same legal protections against sexual states whose post-colonial legal infrastructure violence exist in civil, religious, and customary or includes a plural system of Islamic law and tribal law? Do they extend equally to both genders and religious minorities? tribal or customary law in addition to civil law. International human rights law “requires the 2. Does the religion of the victim or of the perpetrator harmonisation of any existing religious, customary, determine applicable law? Does it determine their ability to access justice and reparations? indigenous and community justice system norms with its standards”,106 which has been 3. What other factors weaken legal protections, access to justice, and reparation for victims? a challenge to legally pluralist states. For both Malaysia and Nigeria legal protections for victims of sexual violence differ between civil, religious Eight Commonwealth countries are currently members and customary law. In some cases, the religion of the of the OIC and there are other countries that have victim and of the perpetrator determines applicable law significant Muslim populations who may be subject to and access to justice and reparations, making women, Islamic family law, personal status law, criminal law, particularly Muslim women more vulnerable in some customary law, or tribal law.107 The Islamic Republic of cases. Other factors, such as place of birth and religion , for example, is a Muslim majority state with a of birth may also weaken legal protections. Despite plural legal system based on the common law, Islamic the challenge posed by religious and customary law, law, and customary tribal law at the local level. After Nigeria and Malaysia have sought to strengthen legal independence and through successive military regimes, protections for victims of marital rape.110 This section the amendments to the Pakistani Constitution and focuses primarily on Islamic law and, where applicable, Penal Code have resulted in socio-legal discrimination engages customary, traditional practices and norms and against religious minorities and vulnerable groups as exposes the challenge of criminalising marital rape in a well as an exclusionary definition of who is “Muslim”.108 legally pluralist state. Pakistan has eliminated the marital rape exception in the definition of rape under the Penal Code; however, NIGERIA: THE CLASSIFICATION OF MARITAL the failure to define a specific crime of sexual assault RAPE IN THE NORTHERN ISLAMIC LAW STATES within marriage coupled with the failure to harmonise 111 legislation at the provincial and local levels in keeping Nigeria has a diverse population of over 195 million with international human rights obligations, means that divided into two geopolitical zones in terms of the there are gaps in legal protections for victims.109 application of criminal law: Northern and Southern. All federated states in the Republic are allowed to For the purposes of this analysis on the adequacy of domesticate the provisions of either the Penal Code legislative protections for victims of marital rape, the (Northern states) and Criminal Code (Southern States) example of Pakistan prompts questions that ought to their own local cultural and religious circumstances.112 to be asked of a legally pluralist state:

106 See Committee on the Elimination of Discrimination against Women, General Recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, 14 July 2017, CEDAW/C/GC/35, p. 9, para 26(a): “[CEDAW] requires the harmonization of any existing religious, customary, indigenous and community justice system norms with its standards, as well as the repeal of all laws that constitute discrimination against women, including those which cause, promote or justify gender-based violence or perpetuate impunity for these acts.” 107 Other members include Pakistan, The Gambia, , , and Negara Darussalam. The were a member of OIC until 2016. Accessed online: https://www. oic-oci.org. 108 See Constitution of the Islamic Republic of Pakistan 1973 [As modified up to the 28th February 2012], Chapter 5, Article 260 (3), “Muslim” and “Non-Muslim” definitions. Accessed online: http://na.gov.pk/uploads/documents/1333523681_951.pdf Pakistan: Penal Code [Pakistan], Act No. XLV, 6 October 1860 [as amended 2012], s,153 (a), s.295. Accessed online: https://www.refworld.org/docid/485231942.html 109 Punjab Province has adopted legislation that speaks to sexual violence against women. See: Sections 2, 3 of the Punjab Protection of Women Against Violence Act (2016). Accessed online: http://punjablaws.gov.pk/laws/2634.html 110 ss.1.4. and 1.5. provide a detailed analysis of the international human rights obligations and domestic legislation of Malaysia and Nigeria. 111 World Bank Data Bank (2018). Population total (Nigeria). Accessed online: https://data.worldbank.org/country/nigeria 112 Chapter 30: Assaults on Females: Abduction. Criminal Code Cap “C38” Laws of the Federation, s.357, 2004 accessed online: https://www.refworld.org/docid/49997ade1a.html. Penal Code Act, Chapter 53, LFN, 1990, s.282 accessed online: https://www.africanchildinfo.net/clr/Legislation%20Per%20Country/Nigeria/nigeria_penal-north_1960_en.pdf

50 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

The only exception is the Federal Capital Territory accompanying implementing framework for states on the (FCT) that the National Assembly legislates for, by domestic implementation of CEDAW and the Maputo law. The Penal Code applies in Abuja FCT, because Protocol.115 The implementing framework for legislative it is geographically located in the North. Within the reform in the North would have to be sensitive to the “Northern” geopolitical zone,113 religious, social and religious and cultural diversity of each state and local cultural norms vary by state. The criminalisation of NGOs, some of whom have already conducted women’s sexual violence in the private sphere, including marital rights awareness campaigns, are best suited to advise rape and intimate partner violence, presents a problem on women’s protection issues in such a patriarchal of classification under Nigeria’s three legal systems: cultural setting.116 Questions that would have to be put English law, Shari’a and customary law. This section to a consultative body on Islamic law are: How can focuses on the legal culture of Northern Nigeria and the violation of a women’s bodily integrity and sexual briefly describes some of the problems associated autonomy be categorised as a crime under Shari’a with the “Shari’a implementing states” of the Northern law? How can this crime apply to perpetrators if they region. For Nigeria, the criminalisation of marital rape are married to the victim?117 The Islamic Republic of is primarily a problem of legal classification at the state Pakistan went through a process of legislative reform level in a Federal Republic. Jigawa State provides an that, through internal discourses between legal, political, example of how the tension between Islamic law and and religious communities, led to the 2006 adoption international and regional human rights norms has of the Protection of Women (Criminal Law Amendment) led to differing outcomes in legislative reform. Act (Women’s Protection Act or WPA).118 The crime of rape is now no longer under the category of In a Muslim majority context such as Northern Nigeria, and adultery (zina) and the marital exception has been it is important for legal reform strategies to “engage in removed.119 At present, Zamfara and Jigawa are the an internal discourse within communities... [and] frame only two Northern states that have legal consultative arguments for reform and change concurrently within bodies (Councils of Ulama), whose mandate would both Islamic and human rights frameworks”.114 There are need to be expanded for it to have an advisory role a number of strategies that can be employed to extend on Shari’a law reform.120 The structure and mandate legal protections to women who have experienced of a consultative body on Shari’a law reform would sexual violence. At the federal level, as discussed in have to be determined by local actors at the state s.1.4, the Nigerian Government could move forward level as there is no provision for such a body in the with draft legislation (or amend VAPP 2015) and Nigerian Constitution.

113 Chapter 3, Penal Code (Northern States) Federal Provisions Act: “‘Northern states’ means the States of Nigeria formerly known as the Northern Region of Nigeria” 114 Mir-Hosseini, Ziba and Vanja Hamzić. (2010) Control and Sexuality: The Revival of Zina Laws in Muslim Contexts. London: Women Living Under Muslim Laws (WLUML), at 40. Accessed online: http://www.wluml.org/sites/wluml.org/files/CaS%20e-book.pdf Citing: Buskens, Leon (2006). “Recent Debates on Family Law Reform in : Islamic Law as Politics in an Emerging Public Sphere”, Islamic Law and Society 10 (1): 71–131. And Collectif 95 Maghreb-Egalité. (2005). Guide to Equality in the Family in the Maghreb (English ed.). Washington DC: Women’s Learning Partnership for Rights, Development and Peace (WLP). 115 The federal character of the state requires a different view of due diligence obligations that include the development of appropriate frameworks at the state level. UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 35: Violence against women (2017), at 29.e. Accessed online: https:// tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf UN Women (New York, 2012). “Defining Sexual Violence” in Handbook for Legislation on Violence Against Women, pp. 24-25. Accessed online: http://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2012/12/ unw_legislation-handbook%20pdf.pdf?la=en&vs=1502 116 Nigerian NGOs that have already been involved in drafting legislation, promoting awareness or conducting state-specific campaigns on domestic violence include: Baobab Women Human Rights (Lagos; Outreach in 14 other states); Project Alert Against Violence Against Women (Lagos, Abuja); Women Advocates Research and Documentation Centre (WARDC) (Lagos); Federation of Muslim Women’s Associations in Nigeria (FOMWAN) (Abuja); Women’s Rights Advancement and Protection Alternative (WRAPA) (Abuja); Civil Resource Development and Documentation Centre (CIRDDOC) (Lagos); Legal Defence and Assistance Project (LEDAP) (Lagos); and Nigerian Human Rights Commission (National). 117 Islamic law recognises rape under the following categories of bodily harm: hiraba (taking by force; also armed robbery) and jirah (wound sexual or otherwise). Unlike morality crimes, these offences do not require witnesses or proof of consent. However, with marriage there is a tendency to assume implied consent. See: Qureshi, Asifa. (1997) “Her Honour: An Islamic Critique of Rape Laws of Pakistan from a Women-Sensitive Perspective”, Michigan Journal of International law 18(2)287-320. 118 Khan, Shehar Bano and Shirin Gul, “The Criminalisation of ”, September 2017, CMI Working Paper Series. Accessed online: https://www.cmi.no/publications/ file/6323-the-criminalisation-of-rape-in-pakistan.pdf 119 The expansion of legislative protections for women at the state level are, however, under the constant scrutiny of the Federal Shariat Court and the Council of Islamic Ideology who are constitutionally mandated to do so. The articles below discuss the Punjab Protection of Women against Violence Act (PPWVA) 2016. Accessed online: http://punjablaws.gov.pk/ laws/2634.html Reuters, “CII rules women’s protection law “un-Islamic”, Pakistan, 3 March 2016. Accessed online: https://tribune.com.pk/story/1058773/top- pakistani-religious-body-rules-womens-protection-law-un-islamic/ Iqbal, Nasir, “Women’s protection act challenged in Federal Shariat Court”, Pakistan, 4 March 2016. Accessed online: https://www.dawn.com/news/1243466 120 Council of Ulama (Establishment) Law 2003, assented to 28 July 2003.

51 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Removal of the marital rape exception: the challenge of religious and customary law cont

Jigawa state is located in North-western Nigeria. As in Jigawa came about because of societal concern for of 2016, the population of the state was 5,828,163.121 domestic violence, sexual violence, forced , Hausa, Fulani, Mangawa, Ngizimawa, Badawa, and premature sexual intercourse, and family abandonment other indigene ethnic groups are 99% Muslim and of victims.128 Public hearings on the Domestic Violence other religions are represented among the settled Bill hosted by the State government in various local tribes.122 Shari’a was reintroduced in Jigawa state with government areas helped expedite the process of the enactment of laws by the State House of Assembly legislative reform with critical outreach programmes beginning in 2000. These laws were responsible for conducted by Nigerian human rights NGOs. The replacing Area and Customary Courts with Shari’a example of Jigawa demonstrates the complexity of Courts, redefining customary law to include Shari’a law, legislative reform within a federal system of plural laws. repealing additional laws relating to the administration For Jigawa to move towards criminalising rape, marital of Area and Customary Courts, determining criminal or otherwise, parallel reforms would have to occur – proceedings under the Shari’a. The Jigawa State Hisbah amendments would need to be made to the Penal Code Board, has no governing legislation, but was established (Northern States) and the Jigawa Shari’a Penal Code. by the state government to take on the voluntary MALAYSIA: THE ISLAMIC LAW PERSPECTIVE responsibility of determining which social and cultural practices are compliant with the Shari’a.123 ON THE CRIMINALISATION OF MARITAL RAPE Despite the predominance of Shari’a law, Jigawa Malaysia is a Muslim majority country that, through the remains the only Northern state to expand legal process of criminalising intimate partner sexual violence protections for women and children from domestic in limited circumstances, has begun dismantling strong violence through legislative reform. Northern Nigeria religious and patriarchal norms that have fought to has a high incidence of sexual violence against women; keep the marital rape exception. Over the past 15 more than 70% of the perpetrators of sexual violence years there has been widespread public concern for are husbands or former husbands.124 New legislation victims of domestic violence with tension between must be harmonised with both the Penal Code (Northern activists, legislators, and religious authorities as to how States) and the Shari’a Penal Code 2000.125 Thus, the to expand legal protections for women and children Jigawa Domestic Violence and Other Related Matters who are victims of domestic violence, including sexual 129 Law 2006 excludes committed in violence. In Malaysia, the Penal Code and the accordance with the personal law of the husband and Domestic Violence Act are applicable to all Malaysians allows physical chastisement according to the personal irrespective of their ethnic or religious background. In law of the husband as per the Penal Code (Northern order to charge a perpetrator with domestic violence, States) and the Shari’a Penal Code.126 Section 55 of the including sexual violence, there must be evidence of the Penal Code regarding the correction of a child, pupil, commission of a criminal offence under the Penal Code servant or wife excludes action taken: “by a husband and the arrest must proceed as per the procedures laid 130 for the purpose of correcting his wife such husband and down in the Criminal Procedure Code. As discussed wife being subject to any customary law in which the earlier, the offence of “husband causing hurt in order correction is recognised as lawful”127 and where “any to have sexual intercourse” was added to the Penal 131 customary law” refers to the Shari’a as custom. The Code in 2007. In 2009 a man/husband from Kuantan, momentum for drafting domestic violence legislation Pahang state was charged and convicted under s.375A

121 Nigeria National Bureau of Statistics (NBS). (May 2018). “Demographic Statistics Bulletin, 2017” at 7. Accessed online: https://nigerianstat.gov.ng 122 Source: Jigawa State Government Website. Accessed online: http://www.jigawastate.gov.ng/index.php All Nigerians are categorised by the status of either “indigene” or “settler” according to their paternal heritage and not place of birth. 123 Maishanu, Abubakar Ahmadu, Jigawa Hisbah annuls 312 underage, forced marriages in four years — Official, Premium Times Nigeria, 2019. Accessed online: https://www. premiumtimesng.com/regional/nwest/327258-jigawa-hisbah-annuls-312-underage-forced-marriages-in-four-years-official.html 124 National Population Commission (NPC)/IFC International. (June 2014). NDHS (Nigeria Demographic and Health Survey) 2013, Chapter 16: Domestic Violence, p. 309. Accessed online https://dhsprogram.com/pubs/pdf/FR293/FR293.pdf 125 Penal Code (Northern States) Federal Provisions Act (No. 25 of 1960), Chapter 53, LFN, 1990. Accessed online: http://oceansbeyondpiracy.org/sites/default/files/Nigeria_Penal_ Code_Act_1960.pdf. 126 Onyemelukwe, Cheluchi. (2016). “Legislating on Violence Against Women: A Critical Analysis of Nigeria’s Recent Violence Against Persons (Prohibition) Act, 2015”, DePaul Journal of Women, Gender and the Law 5(2): 1-56, at p. 9, 34. 127 S.55 (1) Nothing is an offence which does not amount to the infliction of child, pupil, grievous hurt upon a person and which is done … (d) by a husband for the purpose of correcting his wife such husband and wife being subject to any customary law in which the correction is recognised as lawful. (2) No correction is justifiable which is unreasonable in kind or in degree, regard being had to the age and physical and mental condition of the person on whom it is inflicted; and no correction is justifiable in the case of a person who, by reason of tender years or otherwise, is incapable of understanding the purpose for which it is inflicted 128 See, for example: National Population Commission - NPC/Nigeria. (December 2000). Nigeria Demographic and Health Survey 1999. Calverton, Maryland: NPC/Nigeria and ORC/Macro. Accessed online: https://dhsprogram.com/publications/publication-FR115-DHS-Final-Reports.cfm 129 See, for example: Su-Lun, Boo. (30 October 2018). “Marital rape is un-Islamic, Says SIS” (referring to Malaysian NGO Sisters in Islam http://www.sistersinislam.org.my). Accessed online: https://www.malaymail.com/news/malaysia/2018/10/30/marital-rape-is-un-islamic-says-sis/1688227 130 Penal Code (Kanun Keseksaan) Act at 2015 [Act 575]. Accessed online: http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Penal%20Code%20 %5BAct%20574%5D2.pdf Domestic Violence (Amendment) Act 2017 [Act A1538] Accessed online: http://www.federalgazette.agc.gov.my/outputaktap/20170921_A1538_BI_ WJW009193%20BI.pdf Criminal Procedure Code at 1 January 2006 [Act 593]. Accessed online: https://www.sprm.gov.my/images/Akta-akta/Act593-criminal-procedure-code.pdf 131 Penal Code (Kanun Keseksaan) (Amendment) Act 2015 [Act A1483], s.375(A), p. 205-206.

52 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 53 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

(causing hurt) and s.377B (carnal intercourse against the violence, even sexual violence, as permissible according order of nature) of the Penal Code in a Sessions Court to the Qur’an.137 A 2004 Parliamentary Select Committee (subordinate court under civil law) trial.132 This outcome rejected the idea of amending the Penal Code to would not have been possible had the victim sought include the offence of “marital rape” on religious justice under the Syariah. Under the Pahang Islamic grounds stating that “recognising marital rape would Family Law Enactment 2005, the victim may have filed conflict with Shariah law and other religions”.138 The for dissolution of the marriage by judicial decree due enactment of the offence, under s.375(A) of the Penal to domestic violence where domestic violence is not Code, of “husband causing hurt in order to have sexual recognised as a criminal offence.133 This section explains intercourse” in 2007 does not adequately criminalise the role of Syariah in Malaysian law and society; it marital rape.139 However, debates surrounding the draft provides an overview of the Syariah perspective on the amendment revealed a shift in attitude from viewing criminalisation of marital rape; sexual relations as religious duty to sexual relations and it exposes the limitations of the Syariah to protect as a privilege within matrimony for those who do not women from sexual violence. engage in violence against the person or property.140 This may be in part due to the enforcement of Islamic Malaysia’s legal system is primarily based on English Law at the federal and state level where judges have common law, the selective application of Islamic law begun more frequently to accept domestic violence as a and customary law. This dual system is provided for reason for divorce by judicial dissolution.141 According under Article 121 of the Constitution.134 The Syariah to the Malaysian Women’s Rights NGO Sisters In Islam, Courts are established at the state level and have its legal aid service Telenisa reported that there has jurisdiction over “Islamic law and personal and family been an increase in women who have experienced law of persons professing the religion of Islam”.135 The domestic violence, including sexual violence, initiating Syariah is a legal system and a system of religious and divorce through judicial dissolution from 62 in 2016 to cultural values that Malay Muslims sought to preserve 137 in 2017.142 This has been made possible due to the through the post-colonial legal and political structure Syariah family law reforms in all 13 states and Federal of the state. His Majesty the King, the titular head of Territories.143 These reforms resulted in the inclusion of state, is elected by the hereditary Sultans of nine states the following reason for judicial dissolution: “that the in the federation. These leaders are the “guardians of husband or wife treats her or him with cruelty, that is to Islam” and a “potent symbol of [Malay] identity” who, say, inter alia – habitually assaults her or him or makes until 2003, had the right to veto federal and state her or his life miserable by cruelty or conduct”. The legislation.136 Resistance to Syariah law harmonisation question then is: can marital rape be included under and reform, therefore, takes the form of cultural, this reasoning? The problem that Muslim women have political, and religious resistance in Malaysian law encountered in seeking this form of justice for domestic and society. abuse is the lengthy proceedings before Syariah courts Until the mid 2000s, the Syariah perspective on the leaving the victim vulnerable between the act(s) of criminalisation of marital rape held firmly that sex with violence, the granting of a separation and the granting a spouse was a religious duty; thereby, condoning of a divorce.

132 Original article has been removed from the New Strait Times website. See archived copy of the article here: https://www.asiaone.com/News/AsiaOne%2BNews/Crime/Story/ A1Story20090806-159473.html 133 Islamic Family Law Enactment 2005 (Enactment No. 3 of 2005) [Pahang]. s.52 has yet to be amended. Accessed online: http://www2.esyariah.gov.my/esyariah/mal/portalv1/ enakmen2011/Eng_enactment_Ori_lib.nsf/100ae747c72508e748256faa00188094/695c566a285fec46482576af0028546a?OpenDocument 134 Federal Constitution as at 1 November 2010, Printed with the Consent of the Yang Di-Pertuan Agong Pursuant to Article 160A of the Federal Constitution. Accessed online: http://www. agc.gov.my/agcportal/uploads/files/Publications/FC/Federal%20Consti%20(BI%20text).pdf 135 Ibid , Article 74, sched. 9, list II (State List). 136 Mayberry, Kate. (22 January 2019). “Malaysia’s royals to select new king in unique rotational system”. Al Jazeera. Accessed online: https://www.aljazeera.com/news/2019/01/ malaysia-royals-select-king-unique-rotational-system-190122032114993.html 137 See, for example, Statements by mufti Harussani Zakaria and Mr. Abdul Hakim Othman. World News (27 April 2015). “No such thing as marital rape, say Islamic leader, Muslim Group”. Today Online. Accessed online: https://www.todayonline.com/world/asia/no-such-thing-marital-rape-say-islamic-leader-muslim-group Murad, Dina. (28 April 2015). “Perlis mufti: Forced, rough sexual intercourse in marriage is prohibited”. The Star Online. Accessed online: https://www.thestar.com.my/news/nation/2015/04/28/perlis-mufti-forced- rough-sexual-intercourse-prohibited/ 138 See: Annuar, Azril. (30 October 2018). “No plans to criminalise marital rape, deputy law minister says”. Malaysia Mail. Accessed online: https://www.malaymail.com/news/ malaysia/2018/10/30/no-plans-to-criminalise-marital-rape-deputy-law-minister-says/1688091. See also Sisters in Islam: https://sistersinislam.org/news/jag-statement-on-marital-rape/ 139 Penal Code (Kanun Keseksaan) (Amendment) Act 2015 [Act A1483], s.375(A), p. 205-206. 140 See Parliamentary Debates as discussed in Nazeri, Norbani Mohammed. (December 2010). “Criminal Law Codification and Reform in Malaysia: An Overview.” Singapore Journal of Legal Studies, p. 375-399. 141 Islamic Family Law (Federal Territories) (Amendment) Act 2006, s.12 (52) (h). Reasons for divorce include that the husband or wife: “habitually assaults her or him or makes her or his life miserable by cruelty of conduct.” Accessed online: http://www2.esyariah.gov.my/esyariah/mal/portalv1/enakmen2011/Eng_acta_lib.nsf/1f6766512d9936a348256aa30 0143ae8/ead91b822eb80a2a48257634000583c1?OpenDocument Wording in state legislation is similar. For resources on state legislation, see Abdullah, Raihana (2007), “A Study of Islamic Family Law in Malaysia: A Select Bibliography”, International Journal of Legal Information, 35(3): 514-536. Accessed online: https://scholarship.law.cornell.edu/cgi/ viewcontent.cgi?article=1111&context=ijli 142 Chandran, Sheela. (9 March 2018). “Telenisa: Domestic Violence main cause for divorce”. The Star Online. Accessed online: https://www.thestar.com.my/news/ nation/2018/03/09/telenisa-domestic-violence-main-cause-for-divorce/ 143 All state legislation is available in Malay, English and Arabic under the e-Syariah initiative website: http://www.esyariah.gov.my

52 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 53 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Removal of the marital rape exception: the challenge of religious and customary law cont

In Malaysia, Muslim marriages are governed solely by CONCLUSION state Islamic Family Law Enactments at the discretion of Malaysia and Nigeria provide good examples of the Syariah judges. Civil marriage, secular marriage, and Islamic law perspective on the criminalisation of marital inter-faith marriages do not exist for Malaysian Muslims. rape in pluralist states with diverse populations. Islam The Syariah perspective on the criminalisation of marital is a deeply entrenched part of Northern Nigerian rape promotes an idea that is repugnant to Malaysian society and of Malay Muslim identity. Within the civil law: advocating that rapists should marry their Commonwealth there are many similar states whose victims and putting young girls at risk for further sexual post-colonial legal infrastructure includes a plural system abuse in encouraging them to marry their perpetrator.144 of Islamic law and tribal or customary law in addition The definition of statutory rape under s.375 (G) of the to civil law. The challenges of the classifications of Penal Code sets the legal at sixteen crimes of sexual violence under Islamic law manifest years of age.145 Marriage under the Syariah is thus both in an internal dialogue with local and state actors a shield for perpetrators who can avoid a charge of and an external dialogue with federal, national, and statutory rape by marrying their victim. The marital international authorities. The shift from national and rape exception under s.375 is written in such a way international to local and state level negotiation of legal as to shield perpetrators who are Muslim by applying protections reveals the complexities of the reform of a marriage and family law requirements from Syariah religious and legal culture that predate colonisation. In law, which creates different ages of consent (at the order to criminalise forms of sexual violence, Nigeria judge’s discretion; or at the age of puberty, or sixteen and Malaysia must shift their perspective from viewing as the case may be). Lack of standardisation of judicial Islamic law as a shield from prosecuting perpetrators reasoning puts Malay Muslim girls and women in a to a source of legal protection for victims. more vulnerable position so that their state of residence determines their access to justice and reparation.146 The case studies of Nigeria and Malaysia provide In order to close this critical protection gap, the practical strategies that can be employed to extend legal minimum age for women to marry must be set at 18, protections to women who have experienced sexual in keeping with international human rights standards; violence in states with dual or parallel legal systems. all legislation covering sexual violence must be amended so that appropriate charges may be brought against the perpetrator according to Penal Code offences; and Syariah Family Law Enactments must be harmonised with federal legislative changes.

144 See, for example: Statements made by former Syariah judge Datuk Shabudin Yahaya. Lamb, Kate. (2017). “Rape Victims should marry their rapists, Malaysian MP tells parliament”. . Accessed online: https://www.theguardian.com/world/2017/apr/05/victims-should-marry-their-rapists-malaysian-mp-tells-parliament Barr, Heather. (January 2017). “Marrying Your Rapist in Malaysia: Men Try to Avoid Rape Charges Through Forced ”. , Women’s Rights Division. Accessed online: https://www. hrw.org/news/2017/01/26/marrying-your-rapist-malaysia 145 Penal Code (Kanun Keseksaan) Act as at 1 January 2015 [Act 574], s.375(G), Accessed online: http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Penal%20 Code%20%5BAct%20574%5D2.pdf 146 Sisters in Islam. (16 June 2019). “Standardise Islamic Family Laws for all states in Malaysia”. Accessed online: http://www.sistersinislam.org.my/news.php?item.1636.8

54 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

C. Legislative models adopted to criminalise marital rape and intimate partner sexual violence

For many Commonwealth countries, the In West Africa, the model was marital rape exception is very much a colonial indirectly imported via the with a parallel inheritance. The crime of rape is categorised system of written criminal law and unwritten “Native” retributive justice.150 Remarkably, the colonial penal as a “sexual offence” in the original colonial system has remained intact post-independence and formulation: as a gendered crime of “carnal there has been very little reform in this area of law knowledge” and “unlawful sexual intercourse” in many Commonwealth countries. Thus, in order to that offended the “morality” and “honour” of address the crime of marital rape and intimate partner a community.147 This understanding of criminal sexual violence through legislative reform, there must be law can be traced back to Thomas Babington a complete overhaul of colonial era notions of sexual morality and honour of the community to bring the Macaulay, legal representative on the Legislative offence into conformity with international human rights Council responsible for the Indian Penal Code of standards and norms. 1860, which was the first codification of criminal Three areas of law are involved in this reform process: 148 law in the . This model was later criminal, family, and, in some countries, customary or exported in Asia to Pakistan, , religious law. To the extent that marital rape and intimate Sri Lanka, Malaysia, Singapore, and Brunei. partner sexual violence are criminalised, it may require It was also exported to East African countries amending all areas of law so that criminal charges including , , , Uganda, can be brought against the perpetrator. Removing the and (and Zanzibar).149 marital rape exception and criminalising marital rape or criminalising a broad definition of sexual assault that does not hinge on the relationship status of the victim and perpetrator has been accomplished through the following models of legislative reform that reflect the history and legal culture of Commonwealth countries. Part 3 of this report, which analyses the criminalisation of marital rape and intimate partner sexual violence by regions of the Commonwealth, provides a more detailed analysis of the types of legislative reform described in this chapter.

147 Braun, Téa. (June 2014). “Dark Side of the Moon: The Legacy of British Sexual Offences in the Commonwealth”, Legal and Judicial Legacies of the Empire Conference, Institute of Commonwealth Studies, London. Accessed online: https://www.humandignitytrust.org/wp-content/uploads/resources/British_colonial_sexual_offences_legacy-Tea_Braun.pdf 148 See: Chan, Wing-Cheong, Barry Wright and Stanley Yeo (ed.s). (2011). Codification, Macaulay and the Indian Penal Code: the legacies and modern challenges of criminal law reform. Surrey: Ashgate. 149 See: Kolsky, Elizabeth. (2005). “Codification and the Rule of Colonial Difference: Criminal Procedure in British India”, Law and History Review, 23(3): 631-683. 150 See: Coldham, Simon. (“Criminal Justice Policies in Commonwealth Africa: Trends and Prospects”, Journal of African Law, 44: 218-238.

55 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth C. Legislative models adopted to criminalise marital rape and intimate partner sexual violence cont

1. CRIMINAL CODE OR PENAL CODE REVISION 2. SEXUAL OFFENCES LEGISLATION The first model seeks to criminalise marital rape and Another reform model is through amendment or revision intimate partner sexual violence through reform or of the “Sexual Offences Act”. Table 2 sets out those revision of the criminal law or penal code. Table 1 states which have adopted this approach. sets out those states which have adopted this model. Table 2: Sexual Offences Legislation Table 1: Criminal or Penal Code Revision Country Sexual Offences Legislation Country Criminal Code/ Penal Code United Sexual Offences Act 2003 (House Canada Criminal Code R.S.C., 1985, c. C-46 Kingdom of Lords (R v R) 1991 overturned the marital rape exception) Crimes (Amendment) Act 1986 Trinidad and Sexual Offences (Amendment) Act Australia Criminal Code 1992 Tobago 2000 Papua New Criminal Code (Sexual Offences and Lesotho Sexual Offences Act 2003 Crimes against Children) Act 2002 Jamaica Sexual Offences Act 2009 Criminal Code 2000 Guyana Sexual Offences Act 2010 Crimes Decree 2009 Sexual Offences Act 2012 Criminal Code (Amendment) Act 2012

Samoa Crimes Act 2013 Dominica Sexual Offences Amendment Act 2016 Penal Code Lei No. 35/2014 (Penal Sexual Offences and Domestic Code Amendment) 2015 Violence Act 2018 Solomon Penal Code (Amendment) Islands Sexual Offences Act 2016 A stand-alone Sexual Offences Act was commonplace during colonial times particularly in the Commonwealth Crimes Act 2016 Caribbean and many countries kept the colonial Singapore Criminal Law Reform Act 2019 formulation without amendments when they became independent. A Sexual Offences Act is part of the laws This model is common in civil law jurisdictions, hybrid or of , The Bahamas, Barbados, dual jurisdictions, and in some common law jurisdictions. Dominica, Jamaica, Guyana, and Trinidad and Tobago. The most effective way to remove the martial rape In the 1980s and 1990s, the region began to recognise exception in this instance is to remove the exception and the inadequacies of the definitions of sexual offences amend the definition of rape to include a consent-based and criminal law reform focused on: 1) the removal definition of sexual assault with no restrictions or limitations. of gendered language in keeping with human rights In the case of India, for example, although a broader legal norms; and 2) alleviating problems associated definition of consent has been added to the definition of with the prosecution of sexual offences (e.g. the pre- rape in 2013, the marital rape exception remains: “Sexual trial and trial setting for victims).154 The marital rape intercourse or sexual acts by a man with his own wife, the exception remained. In 2016, Dominica repealed and wife not being under fifteen years of age, is not rape”.151 replaced Section 3 of the Act and redefined rape using As India is a hybrid system, due consideration would need more “gender-neutral” language, provided sentencing to be taken in parallel reform of customary and religious guidelines based on harm and gravity and removed the laws. The also has a mixed common law marital exception.155 This model of legislative reform is and customary law system where the criminalisation of most relevant to Commonwealth Caribbean countries. marital rape required an amendment to the Penal Code with the Penal Code (Amendment) Sexual Offences Act 151 See s.375, Criminal Law (Amendment) Bill, 2013. Bill No. 63-C of 2013. Accessed 152 2016. Like India, customary law is recognised under online: https://www.prsindia.org/uploads/media/Criminal%20Law,%202013/ Schedule 3 of the Constitution as a formal source of Criminal%20Law%20Amendment%20Bill%20as%20passed%20by%20LS.pdf 152 Accessed online: http://www.parliament.gov.sb/index.php?q=node/1022 153 law. The lack of harmonisation of customary family law 153 See: Solomon Islands Law Reform Commission. Accessed online: is detrimental to women seeking justice for sexual crimes http://www.lawreform.gov.sb/our-work/current-references/penal-code-and-criminal- procedure-code.html perpetrated against them and seeking legal knowledge of 154 Rodney-Edwards, Thelma. (2000). “CARICOM Model Legislation on Violence Against their rights under both legal systems. The Solomon Islands Women in the Areas of Sexual Offences, Domestic Violence and Sexual Harassment: Comparison with International Standards and Existing Commonwealth Caribbean Law Reform Commission has been primarily focused on Legislation”, pp. 257-297 in Adams, K. et A. Byrnes (ed.s) Gender Equality and the civil law rather than customary law reform. As previously Judiciary: Using International Human Rights Standards to Promote the Human Rights of Women and the Girl-child at the National Level, Commonwealth Secretariat, London. stated, understanding the history and legal cultures of Accessed online: https://dx.doi.org/10.14217/9781848596665-en Commonwealth countries is key to understanding how each 155 Commonwealth of Dominica Sexual Offences (Amendment) Act, 2016. Act 9 of 2016. Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/104938/12 state ought to approach the criminalisation of marital rape. 8169/F-151352353/DMA104938.pdf

56 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 57 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

3. GENDER-BASED VIOLENCE/VIOLENCE This legislative model is an option for all types of AGAINST WOMEN/DOMESTIC VIOLENCE LAWS jurisdictions including those with dual or hybrid legal systems. The failure to repeal or amend criminal law in This model addresses domestic violence, gender-based concurrence with the passing of gender-based violence violence (GBV), violence against women (VAW), intimate legislation means, however, that victims of marital rape partner violence and/or family violence. Table 3 sets may only have access to civil remedies and perpetrators out those states which have adopted domestic violence, may avoid criminal prosecution and punishment gender-based violence or violence against women commensurate with the gravity of their crime. Namibia legislation to address marital rape and intimate partner provides a unique example of the complexity of legal sexual violence. reform in a legally pluralist state. In the 1990s, the Table 3: GBV, VAW and Law Reform and Development Commission embarked Domestic Violence Legislation on a broad range of legal research areas relevant to the rights of women including the: Customary Law Gender-Based Violence/Violence Against Country Marriages Project; Domestic Violence Project; and the Women/Domestic Violence Legislation Cohabitation Project. The Domestic Violence Project led South Africa Prevention of Family Violence Act to the passing of the Combatting Rape Act 2000, which 1993, Domestic Violence Act 1998, removed the marital exception, and the Combatting The Criminal Law (Sexual Offences Domestic Violence Act 2003, which provided an and Related Matters) (Amendment) expansive definition of sexual abuse as a form of Act 2007 domestic violence.156 Both Acts are written in such Republic of The Violence in the Family a way as to ensure access to criminal remedies under Cyprus (Prevention and Protection of Victims) the Criminal Procedure Act 1977.157 Further, in the Laws 2000, 2004 Community Courts Act 2003,158 a victim can concurrently seek civil remedy (compensation) under customary law Namibia Combating Rape Act of 2000 and criminal remedy under civil law.159 Despite these Ghana Domestic Violence Act efforts in legal reform in Namibia, there remains (ACT 732), 2007 a high prevalence of rape and murder committed 160 Rwanda Rwanda Law No 59/2008 Law by intimate partners. on the Prevention and Punishment of Gender-Based Violence 2009 Zambia Gender-Based Violence Act 2010

Tonga Family Protection Act 2013

Kiribati Te Rau N Te Mwenga Act (Family Peace Act) 2014 Malawi Family Relations Act 2015

Saint Vincent Domestic Violence Act No. 7 2015 and the Grenadines Kenya Protection Against Domestic Violence Act 2015 Mauritius Protection from Domestic Violence (Amendment) Act 2016 156 See: Namiseb, Yousy. (2008). “Women and law reform in Namibia – recent developments.” Accessed online: https://pdfs.semanticscholar.org/30ad/94e 5f2a443e30cda142f126d3cb1cc2760fc.pdf Combatting Rape Act, 2000 The Laws of Malta (Chapter 9 (No. 8 of 2000). Accessed online: https://www.ilo.org/dyn/natlex/docs/ ELECTRONIC/82559/90506/F1283246486/NAM82559.pdf Combatting of the Criminal Code) and the Domestic Violence Act, 2003 (Act No. 4 of 2003). Accessed online: https:// Gender-Based Violence www.ilo.org/dyn/natlex/docs/ELECTRONIC/82553/94816/F2089456992/ NAM82553.pdf and Domestic Violence Act 2016 157 Criminal Procedure Act, 1977 (Act No. 51 of 1977) (as of 2010). Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/85750/96189/ F1901432264/NAM85750.pdf 158 Community Courts Act, 2003 Accessed online: https://laws.parliament.na/cms_ documents/community-courts-c8f9b0b2fb.pdf 159 United States Department of State. (24 May 2012). “Namibia.” Country Reports on Human Rights Practices for 2011. Accessed online [archived]: https://2009-2017. state.gov/j/drl/rls/hrrpt/2012humanrightsreport/index.htm#wrapper 160 See: UN Committee on the Elimination of Discrimination against Women (July 2015). “Concluding observations on the combined fourth and fifth periodic reports of Namibia”, CEDAW/C/NAM/CO/4-5, at p. 4-5, para.20.

56 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 57 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth C. Legislative models adopted to criminalise marital rape and intimate partner sexual violence cont

CONCLUSION and RECOMMENDATIONS Suggested legal reform indices FOR LEGAL REFORM Penal code/Criminal code These models are useful for thinking through how Sexual offence laws Commonwealth countries that have not criminalised Criminal laws marital rape might best approach legislative reform. Customary law Shari’a law Table 4 sets out those Commonwealth countries Religious laws/Personal laws which have yet to engage in legislative reform Family laws to criminalise marital rape. Almost half of all Domestic violence laws Commonwealth countries require legislative reform to completely remove the marital rape exception in all circumstances and without limitation, in order to provide a definition of the crime of rape that is in keeping with international and regional norms, and to seek to harmonise other relevant laws whether they be from civil or customary sources. In the third column of the table, suggestions are made as to which areas of law require reform. For some states, legal reform is relatively easy: repeal or amend one section of one act. For other states, particularly pluralist states, legal reform requires harmonisation across all bodies of law.

Ethnic, linguistic, and religious diversity cannot be held as an impediment to legal reform in legally pluralist states. This continues to be the situation for states in Asia. All Commonwealth countries in Asia shared these features: penal law based on the Indian Penal Code of 1860 and a dual, hybrid or plural legal system that includes constitutional recognition of religious and/ or customary law. This means that legal reform efforts must focus on criminal, customary and family law so that women’s access to justice is not impeded by their ethnic and religious identities and so that they may seek civil and criminal remedies.

58 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 59 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to marital rape and intimate partner sexual violence across the Commonwealth

Table 4: Commonwealth countries with no or inadequate legislation to criminalise marital rape and intimate partner sexual violence

Suggested Country/Region No legislation or inadequate legislation* legal reform

Africa

Botswana Penal Code 1964* (unclear definition of rape)

Cameroon Penal Code (Law No. 2016/007 of 12 July 2016)

The Gambia Criminal Code (Act No. 25 of 1933) (amended 2014) Sexual Offences Act 2013, s.3 Nigeria Criminal Code Cap “C38” Laws of the Federation 2004, s.357 Penal Code Act, Chapter 53, LFN, 1990 The Penal Code 1955

Uganda The Penal Code 1950

United Republic of Tanzania The Penal Code 1945 Sexual Offences Special Provisions Act 1998, s.130

Asia

Bangladesh The Bangladesh Penal Code 1860

Brunei Darussalam The Penal Code Cap. 22 of 1951, 1984 Ed. Cap. 22 The Syariah Penal Code Order 2013 (revised edition 2019) India The Indian Penal Code, 1860, as amended by the Criminal Law Amendment Act No. 13 of 2013, s.375 Malaysia S.375 of The Penal Code 2015

Pakistan Criminal Laws Amendment Act 2006, s.375 of the Penal Code

Sri Lanka S.363(a) of the Penal Code of Sri Lanka (as amended by the Act, No. 22 of 1995)

Caribbean and the Americas

Antigua and Barbuda Sexual Offences Act 1995*; Sexual Offences (Amendment) Act 2004; Domestic Violence (Protection Orders) (Amendment) Act 2015 The Bahamas Sexual Offences and Domestic Violence Act 1991* (limited circumstances) Barbados Sexual Offences Act 1992* (limited circumstances)

Saint Lucia Saint Lucia Criminal Code, 2005 Domestic Violence (Summary Proceedings Act) 1995 Saint Christopher and Nevis, Chapter 4.21, Offences Against the Person Act 2002 Domestic Violence Act 2009

Pacific

Tuvalu Penal Code 2008 (s.128)

Vanuatu Family Protection Act, No. 28 of 2008, 2009*, Penal Code 1981

* Criminalisation in limited circumstances and/or no explicit definition of the crime of “marital rape”.

58 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 59 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 2. Legislative protections in relation to 3. Country reports marital rape and intimate partner sexual violence across the Commonwealth

3.Country reports

60 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 61 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth Introduction

The Commonwealth is characterised by political and geographic regions with distinct legal cultures. Marital rape and intimate partner sexual violence is a manifestation of gender-based violence against women that requires different paths to legislative reform given the challenges of the post-colonial state’s legal architecture. Some Commonwealth countries, such as Rwanda and Namibia, came to independence after being ruled by two or more colonial powers with distinct legal systems. For other Commonwealth countries, such as South Africa and Samoa, legal hybridity or the existence of plural legal systems means that there are vast areas of customary law that have yet to be written and codified.

Legal reform efforts in Saint Vincent and the Grenadines Each regional grouping raises critical questions about and Trinidad and Tobago have had to dismantle how marital rape and intimate partner sexual violence entrenched patriarchal cultural norms such as the are criminalised: implied consent theory of the marital rape exception. For 1. Which bodies of law (family, criminal, customary) Mauritius, the existence of an archaic criminal code is are appropriate sites for the criminalisation part of their colonial inheritance of French Napoleonic of marital rape? law with an overlay of British common law. 2. What is the relationship between these sources Within all these Commonwealth countries, definitions of of law in the protection of victims of marital and rape have evolved considerably from rape as unlawful intimate partner sexual violence? sexual intercourse threatening the morality and honour of the community. The definitions have evolved from 3. How have international and regional human rights sexual intercourse that required force, violence and norms on gender-based violence been domesticated? penetration to consent-based definitions to definitions 4. What obstacles to reform has each state based on the existence of coercive circumstances. Those encountered? Which states have successfully states that have successfully criminalised marital rape overcome these obstacles? and other forms of intimate partner violence have found ways to internalise and “vernacularise” international A focus on South Africa, Namibia, Rwanda, Mauritius, human rights legal norms into a local context.161 Saint Vincent and the Grenadines, Trinidad and Tobago, Samoa and Tonga provides a depth of understanding as In Part 3, we analyse individual Commonwealth to the complexity of legislative reform and offers models countries’ approaches to criminalising marital rape and of reform that can be exported to those Commonwealth intimate partner sexual violence by Commonwealth countries that have no legislation concerning marital region as follows: rape and intimate partner sexual violence. A. Commonwealth Africa (including Mauritius in the Indian Ocean) B. Commonwealth Caribbean C. Commonwealth Pacific

161 Merry, Sally Engle and Peggy Levitt. “Chapter 9: The Venularization of Women’s Human Rights’ in Hopgood, Stephen, Jack Snyder and Leslie Vinjamuri (ed.s). (2017). Human Rights Futures. Cambridge: Cambridge University Press.

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A. Commonwealth Africa

an expansive definition of “domestic violence” that includes physical, sexual, emotional, verbal, psychological and .165 As the UN Special Rapporteur on VAW, rape in South Africa is a 1. SOUTH AFRICA pattern of violence that does not receive condemnation from the community because it is not viewed as a South Africa provides a mixed model of legislative crime in some cultures.166 The Family Violence Act was reform in the area of family law and criminal law, with “not applicable in the homelands [exacerbating] the consideration to customary and traditional practices. alienation of black women from the criminal justice Following the end of apartheid in the 1990s, a post- system”.167 The Domestic Violence Act expanded criminal racial South Africa addressed the high incidence of jurisdiction in the entire republic and to any court within sexual violence with a focus on access to justice for the area in which the complainant or respondent resides, victims according to international human rights norms. carries on business or is employed or the area in which 168 The promulgation of the first non-racial constitution in the cause of action arose. 1996 and the ratification of a number of international Despite the significant legislative reforms in the area and regional human rights treaties by the state led to the of family law in the 1990s, criminal law reform efforts enforcement of policy and legislative initiatives aimed in the area of sexual offences stagnated until the mid at preventing sexual violence and empowering victims 2000s. The Criminal Law (Sexual Offences and Related of sexual violence.162 South Africa was one of the first Matters) (Amendment) Act was passed in 2007. The Sub-Saharan African states to explicitly criminalise Act defined sexual assault in line with international marital rape with the passing of the Prevention of Family and regional human rights norms and provided a Violence Act in 1993, which was in harmony with the consent-based definition of rape with gender-neutral Criminal Procedure Act of 1997 (No. 51 of 1977). terminology. The definition of rape, compelled rape, S.5 defines “rape of a wife by her husband” where sexual assault, compelled sexual assault, and compelled “notwithstanding anything to the contrary contained sexual assault are as follows: in any law or in the common law, a husband may be “Part 1: Rape and compelled rape convicted of the rape of his wife”.163 In the same year, South Africa established the first Sexual Offences Court 3. Any person (‘A’) who unlawfully and intentionally at Wynberg Magistrates Court.164 Due to the persistently commits an act of sexual penetration with a high incidence of sexual violence perpetrated by complainant (‘B’), without the consent of B, is guilty intimate partners, South Africa passed the Domestic of the offence of rape. Violence Act, replacing the Prevention of Family 4. Any person (‘A’) who unlawfully and intentionally Violence Act, and published the National Guidelines compels a third person (‘C’), without the consent on Victims of Sexual Offences in 1998. The Domestic of C, to commit an act of sexual penetration with a Violence Act 1998 provides a clearly articulated complainant (‘B’), without the consent of B, is guilty definition of a “domestic relationship” according to of the offence of compelled rape. religious, customary and secular cultural norms and

162 The Constitution of the Republic of South Africa,1996 (as adopted on 8 May 1996). Accessed online: http://www.justice.gov.za/legislation/constitution/SAConstitution-web- eng.pdf International Human Rights Treaty Ratification: Convention on the Rights of the Child (16 June 1995); Convention on the Elimination of Discrimination against Women (15 December 1995); Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (10 December 1998); International Covenant on Civil and Political Rights (10 December 1998); International Convention on the Elimination of All Forms of Racial Discrimination (10 December 1998); Convention on the Rights of Persons with Disabilities (30 November 2007); International Covenant on Economic, Social and Cultural Rights (12 January 2015). Regional Human Rights Treaty Ratification: African Charter on Human and Peoples’ Rights (9 July 1996); African Charter on the Rights and Welfare of the Child (7 January 2000); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (17 December 2004) 163 Prevention of Family Violence Act, 1993 [South Africa]. Accessed online: http://www.justice.gov.za/legislation/acts/1993-133.pdf 164 The Courts were re-established in 2013 with 43 courts in operation. See: Sadan, Mastoera and Lulama Dikweni and Shaamela Casseiem. (2001) “History and background” in “Pilot Assessment: The Sexual Offences Court in Wynberg & Capet Town and related services”, Institute for Democratic Alternatives (IDSA) South Africa, at p.5. Accessed online: http://www.endvawnow.org/uploads/browser/files/assessment_sexual_offences_courts_sa.pdf#page=5 165 Domestic Violence Act, 1998 (Act 116 of 1998). Accessed online: http://www.justice.gov.za/legislation/acts/1998-116.pdf 166 Coomaraswamy, Radhika (24 February 1997) Addendum: Report on the mission of the Special Rapporteur to South Africa on the issue of rape in the community (11-18 October 1996), E/CN.4/1997/47/Add.3., p. 5, para. 14 Accessed online: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G97/106/87/PDF/G9710687. pdf?OpenElement 167 Ibid, p. 5, para. 14. 168 Domestic Violence Act, 1998 (Act 116 of 1998), s.12. Accessed online: http://www.justice.gov.za/legislation/acts/1998-116.pdf

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Part 2: Sexual assault, compelled sexual assault approach to international law.172 Criminal law is a and compelled self-sexual assault combination of common law, customary law, case law, and legislation. Until 2014, customary law had 5. (1) A person (‘A’) who unlawfully and intentionally provided culturally-based motivations and justifications sexually violates a complainant (‘B’), without the for marital rape in customary marriage (Ukuthwala). In consent of B, is guilty of the offence of sexual assault. 2014, Ukuthwala was ruled unconstitutional in the Jezile (2) A person (‘A’) who unlawfully and intentionally case where the defendant received a 22-year sentence inspires the belief in a complainant (‘B’) that B for rape, assault and trafficking.173 In 2015, rather than will be sexually violated, is guilty of the offence outright criminalising a cultural practice, the Department of sexual assault. of Justice and Constitutional Development launched an 6. A person (‘A’) who unlawfully and intentionally awareness campaign on Ukuthwala in 10 languages compels a third person (‘C’), without the consent using a human rights-based approach to understanding of C, to commit an act of sexual violation with a rape as a violation of the right to health and right to complainant (‘B’), without the consent of B, is guilty gender equality.174 In the area of customary law, the of the offence of compelled sexual assault. government has put forth a Traditional Courts Bill, 2017 in order to codify the “traditional justice system based 7. A person (‘A’) who unlawfully and intentionally on restorative justice and reconciliation, and provide for compels a complainant (‘B’), without the consent the structure and functioning of the traditional courts”.175 of B, to — The Bill also restricts the competency of traditional courts a. engage in — (i) masturbation; (ii) any form of known as Magotla or Inkundla to minor disputes.176 The arousal or stimulation of a sexual nature of the example of South Africa is relevant to other Sub-Saharan female breasts; or (iii) sexually suggestive or lewd African countries with mixed or hybrid legal systems that acts, with B himself or herself; are in the process of legislative reform. b. engage in any act which has or may have the effect of sexually arousing or sexually degrading B; or c. cause B to penetrate in any manner whatsoever his or her own genital organs or anus, is guilty of the 2. NAMIBIA offence of compelled self-sexual assault.”169 Namibia provides a unique example of the complexity This definition was recognised and commended by of legal reform in a hybrid legal system in a relatively the UN Special Rapporteur on VAW in 2015 for new independent state. was criminalising “all non-consensual sexual activity, colonised by until South Africa undertook 170 including marital rape”. its administration as a League of Nations mandate in The South African legal system is a mixed legal system. 1920 and later under an occupation that ended with Civil law and common law inform most codified areas Namibia’s independence in March 1990. of law and customary law is recognised under s.211 Article 66 of the Constitution asserts common law and of the Constitution as an uncodified legal system tied customary law as the statutory law of Namibia: exclusively to ethnicity.171 Other legal traditions, such as Hindu and Muslim law, are slowly gaining recognition “1.  Both the customary law and the common law of under Family Law; however, they are not considered Namibia in force on the date of Independence as bodies of statutory law. South Arica has a monist shall remain valid to the extent to which such customary or common law does not conflict with this Constitution or any other statutory law.

169 Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007). Accessed online: https://www.saps.gov.za/resource_centre/acts/downloads/ sexual_offences/sexual_offences_act32_2007_eng.pdf 170 Šimonović, Dubravka. (18 November 2016). Report of the Special Rapporteur on violence against women, its causes and consequences on her mission to South Africa, 4 to 11 December 2015, A/HRC/32/42/Add., p. 12, para. 44. Accessed online: https://undocs.org/en/A/HRC/32/42/Add.2 171 Codified customary law or “official customary law” prior to the end of apartheid does not hold validity in the present day. Living customary law is recognised by the state. See: Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another on the status and role of customary law in South Africa, 2005 (1) SA 580 (CC). Accessed online: http://www.saflii.org/za/cases/ZACC/2004/17.html 172 The Constitution of the Republic of South Africa, 1996 (as adopted on 8 May 1996), at 232 and 233. Accessed online: http://www.justice.gov.za/legislation/constitution/ SAConstitution-web-eng.pdf Customary international law 232. Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. Application of international law 233. When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. 173 Jezile v S and Others (A 127/2014) [2015] ZAWCHC 31; 2015 (2) SACR 452 (WCC); 2016 (2) SA 62 (WCC); [2015] 3 All SA 201 (WCC) (23 March 2015). Accessed online: http://saflii.org/za/cases/ZAWCHC/2015/31.html Campaign: http://www.justice.gov.za/brochure/ukuthwala/2015-Ukuthwala_leaflet-Eng.pdf 174 See: http://www.justice.gov.za/brochure/ukuthwala/ukuthwala.html 175 South African Government News Agency. (23 January 2017). “Revised Traditional Courts Bill on its way to Parliament”. Accessed online: https://www.sanews.gov.za/south-africa/ revised-traditional-courts-bill-its-way-parliament 176 Republic of South Africa Traditional Courts Bill 2016, 2017. Accessed online: http://www.justice.gov.za/legislation/bills/2017-TraditionalCourtsBill.pdf

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2. Subject to the terms of this Constitution, any part of c. threats (whether verbally or through conduct) such common law or customary law may be repealed to cause harm (other than bodily harm) to or modified by Act of Parliament, and the application the complainant or to a person other than thereof may be confined to particular parts of the complainant under circumstances where Namibia or to particular periods.”177 it is not reasonable for the complainant to disregard the threats; As regards the domestication of international human rights law, the Namibian Constitution provides for d. circumstances where the complainant is monism under Article 144; however, in practice, the under the age of fourteen years and the judicial system operates under a dualist model.178 perpetrator is more than three years older The post-independence Law Reform and Development than the complainant; Commission embarked on a broad range of legal e. circumstances where the complainant research areas relevant to the human rights of women is unlawfully detained; including the: Customary Law Marriages Project; Domestic Violence Project; and the Cohabitation Project. f. circumstances where the complainant This important stage of legal reform allowed Namibia is affected by - to harmonise common and customary law more so than i. physical disability or helplessness, mental other Sub-Saharan African Commonwealth countries incapacity or other inability (whether that had gained independence earlier and retained the permanent or temporary); or colonial iterations of customary and traditional law. For this reason, Namibia is considered an excellent model ii. intoxicating liquor or any drug or other of legal reform in support of women’s human rights. substance which mentally incapacitates the complainant; or The Domestic Violence Project led to the passing of the Combatting Rape Act 2000, which removed the marital iii. sleep, to such an extent that the rape exception, and the Combatting Domestic Violence complainant is rendered incapable of Act 2003, which provided an expansive definition understanding the nature of the sexual of sexual abuse as a form of domestic violence.179 act or is deprived of the opportunity to The Combatting Rape Act 2000 defined rape as: communicate unwillingness to submit to or to commit the sexual act; “2.  1. Any person (in this Act referred to as a perpetrator) who intentionally under coercive g. circumstances where the complainant submits circumstances - to or commits the sexual act by reason of having been induced (whether verbally or a. commits or continues to commit a sexual act through conduct) by the perpetrator, or by with another person; or some other person to the knowledge of the b. causes another person to commit a sexual perpetrator, to believe that the perpetrator or act with the perpetrator or with a third person, the person with whom the sexual act is being shall be guilty of the offence of rape; committed, is some other person; 2. For the purposes of subsection (1) ‘coercive h. circumstances where as a result of the circumstances’ includes, but is not limited to - fraudulent misrepresentation of some fact by, or any fraudulent conduct on the part of, the a. the application of physical force to the perpetrator, or by or on the part of some other complainant or to a person other than person to the knowledge or the perpetrator, the complainant; the complainant is unaware that a sexual act b. threats (whether verbally or through conduct) is being committed with him or her; of the application of physical force to the i. circumstances where the presence of complainant or to a person other than more than one person is used to intimidate the complainant; the complainant.

3. No marriage or other relationship shall constitute a defence to a charge of rape under this Act.”180

177 Constitution of the Republic of Namibia, 1990 (with amendments through 2010). Accessed online: https://www.constituteproject.org/constitution/Namibia_2010.pdf 178 Ibid, Article 144. 179 See: Namiseb, Yousy. (2008). “Women and law reform in Namibia – recent developments.” Accessed online: https://pdfs.semanticscholar.org/30ad/94e5f2a443e30cda142f12 6d3cb1cc2760fc.pdf Combatting Rape Act, 2000 (No. 8 of 2000). Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/82559/90506/F1283246486/ NAM82559.pdf Combatting Domestic Violence Act, 2003 (Act No. 4 of 2003). Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/82553/94816/ F2089456992/NAM82553.pdf 180 Combatting Rape Act, 2000 (No. 8 of 2000), s.2 (1-2), Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/82559/90506/F1283246486/NAM82559.pdf

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The Act further clarified that “any reference in any other Despite these efforts in legal reform in Namibia, law to rape shall, subject to the provisions of this Act, there remains a high prevalence of rape and murder be construed as including a reference to rape under committed by intimate partners.187 Concluding this Act”.181 The Combating Domestic Violence Act 2003 observations from international and regional treaty provides a definition of domestic violence that includes monitoring bodies188 have consistently revealed that physical, economic, and sexual abuse. Sexual abuse sexual violence is a violation of multiple, intersecting is defined as follows: rights including the right to health; the right to gender equality, the right to not be subject to torture, and the “Sexual Abuse right to effective judicial remedy.189 “[Parliamentary] forcing the complainant to engage in any debates surrounding [the passage of the Combatting sexual contact; Rape Act revealed] the persistence of oppressive views about rape that have roots in common law, customary engaging in any sexual conduct that , law, colonial experience, and Namibia’s history of humiliates or degrades or otherwise violates the armed conflict.”190 This disjuncture between progressive sexual integrity of the complainant; legislation and regressive rhetoric is evidence of the exposing the complainant to sexual material which enduring legacy of colonial and patriarchal norms about humiliates, degrades or violates the complainant’s sexual violence perpetrated in the private sphere. A sexual integrity; 2006 study by the Namibian Legal Assistance Centre engaging in such contact or conduct with on the implementation of the Combatting Rape Act of another person with whom the complainant has 2000 found that several forms of rape are likely to go emotional ties.”182 unreported: “marital rape, child rape, ‘tournaments’ (sex acts involving one girl and more than one boy These definitions are in keeping with international and which may sometimes involve coercion), the rape of sex regional human rights norms on rape and intimate workers, the rape of persons from marginalised groups partner sexual violence where sexual violence is such as the San and the Himba, the rape of persons conceived of as a violation of an individual’s sexual with disabilities and the rape of prisoners.”191 The fact and bodily integrity under coercive circumstances.183 that sexual violence, including marital rape and intimate Both Acts are written in such a way as to ensure access partner sexual violence, goes largely unreported means to criminal remedies under the Criminal Procedure Act that investigations rarely occur, and trials seldom result 19 7 7. 184 The same applies to the Community Courts Act in convictions. For Namibia, the effective criminalisation 2003,185 where a victim can concurrently seek a civil of marital rape must involve identifying the root causes remedy (compensation) under customary law and of sexual violence, changing cultural attitudes, and a criminal remedy under civil law.186 providing access to justice for victims no matter their ethnic background or social status in the community.

181 Ibid, s.1(2). 182 Combatting Domestic Violence Act, 2003 (Act No. 4 of 2003), s.6(1) Definitions. Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/82553/94816/ F2089456992/NAM82553.pdf 183 Namibia and Lesotho have criminalised marital rape using the “coercive circumstances model” rather than a “consent-based model” focusing on the imbalance between parties rather than the subjective state of the victim. See: International Commission of Jurists. (2015). “Sexual Violence Against Women: Eradicating Harmful Gender Stereotypes and Assumptions in Laws and Practice”, at p. 25. Accessed online: https://www.icj.org/wp-content/uploads/2015/04/Universal-GenderStereotypes-Publications-Thematic-report-2015-ENG.pdf 184 Criminal Procedure Act, 1977 (Act No. 51 of 1977) (as of 2010). Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/85750/96189/F1901432264/ NAM85750.pdf 185 Community Courts Act, 2003 Accessed online: https://laws.parliament.na/cms_documents/community-courts-c8f9b0b2fb.pdf 186 United States Department of State. (24 May 2012). “Namibia.” Country Reports on Human Rights Practices for 2011. Accessed online [archived]: https://2009-2017.state.gov/j/drl/ rls/hrrpt/2012humanrightsreport/index.htm#wrapper 187 See: UN Committee on the Elimination of Discrimination against Women (July 2015). “Concluding observations on the combined fourth and fifth periodic reports of Namibia”, CEDAW/C/NAM/CO/4-5, at p. 4-5, para.20. 188 See Namibia’s Reports to the African Commission on Human and Peoples Rights (3rd Report submitted 12 May 2011; 6th Report Submitted 20 April 2016) accessed online: https:// www.achpr.org/states/statereport?id=106 International Human Rights Treaty Ratification: International Convention on the Elimination of All Forms of Racial Discrimination (11 November 1982); Convention on the Rights of the Child (30 September 1990); Convention on the Elimination of Discrimination against Women (23 November 1992); International Covenant on Economic, Social and Cultural Rights (28 November 1994); Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (28 November 1994); International Covenant on Civil and Political Rights (28 November 1994); Convention on the Rights of Persons with Disabilities (4 December 2007). Regional Human Rights Treaty Ratification:African Charter on Human and Peoples’ Rights (30 July 1992); African Charter on the Rights and Welfare of the Child (23 July 2004); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (11 August 2004). 189 See, for example, rape as a violation of non-discrimination: UN Committee on the Elimination of Racial Discrimination. (19 August 2008). Concluding observations: Namibia, CERD/C/NAM/CO/12. Accessed online: https://www2.ohchr.org/english/bodies/cerd/docs/co/CERD.C.NAM.CO.12.pdf 190 See: Britton, Hannah, & Shook, Linsey. (2014). “I Need to Hurt You More”: Namibia’s Fight to End Gender-Based Violence. Signs, 40(1), 153-175, at 172. 191 Legal Assistance Centre (2006, 2011). “An Assessment of the Operation of the Combatting Rape Act 8 of 2000: Summary Report”, Gender Research and Advocacy Project, Windhoek: John Meinert Printing (Pty), at p. 4. Accessed online: https://www.lac.org.na/projects/grap/Pdf/rapesum.pdf

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Rwanda is both monist and dualist, according to the Constitution, and as a matter of practice, courts do not consider international human rights treaties as a source of law unless they have been translated into organic 196 3. RWANDA laws and ordinary laws. In keeping with obligations under CEDAW, marital rape was criminalised in 2009 Rwanda’s legal system is based on German and Belgian with the passing of Law No 59/2008, 2009.197 The 192 civil law and customary law. The constitution is the law provides the following definitions of gender-based Supreme law, where any law or custom that is in conflict violence, rape and conjugal rape: with the constitution is considered null and void. “Gender-based violence: any act that results in a The constitution was adopted by referendum in bodily, psychological, sexual and economic harm to 193 2003 after the post-genocidal transition period. somebody just because they are female or male. Such Unlike common law jurisdictions, Rwanda is a civil act results in the deprivation of freedom and negative law jurisdiction where the courts are not necessarily consequences. This violence may be exercised within called upon to interpret whether or not colonial era or outside households... law is consistent with the rights guaranteed under the Constitution or in keeping with international and Rape: the fact that a person is involved in sexual regional human rights norms, and, if they are, judicial intercourse without consent, by force, intimidation, rulings may have less precedential value than in a trices [sic] and others; common law system.194 Thus, any legal reform effort in Conjugal rape: coercing a spouse into sexual Rwanda will necessarily involve dismantling the vestiges relations without that spouse’s consent, by way of colonial and one-party rule that informed legal culture of force, intimidation, trices [sic] and others”.198 from 1883–1994 in addition to patriarchal customary legal norms and notions of sexual violence and consent Article 5 concerns the act of conjugal rape and shaped by the genocide. In a post-conflict society such Article 19 concerns the penalty for conjugal rape: as Rwanda, notions of sexual violence and consent have “Article 5: Conjugal rape: been shaped by the genocide where, “customary (bride Both spouses have equal rights as to sexual intercourse, wealth) marriages, informal marriage or cohabitation, reproductive health and family planning. It is forbidden nonmarital sex, transactional sex, prostitution, forced to make sex with one’s spouse without one’s consent... marriage, rape, , sexual mutilation, and sexual torture exist on a continuum on which female Article 19: Penalty for conjugal rape: sexual agency becomes more and more constrained Any person who coerces his/her spouse into sexual by material circumstance”.195 Rwanda’s legal reform intercourse shall be liable to imprisonment of six (6) has focused on expanding family law protections for months to two (2) years.”199 victims of sexual violence, redefining rape according to international human rights norms, and setting The Kinyarwanda version of the law is authoritative and appropriate criminal penalties for perpetrators of sexual the above is the English translation provided for in the violence. This process has occurred as a dialogue text of the law. These same definitions were formally between legislators, civil society and international incorporated into criminal law in 2012 under Articles 196 actors over the period 2009–2018. and 198 of the Organic Law Instituting the Penal Code.200

192 Rwanda along with Mozambique is one of two members of the Commonwealth with no historical ties to Britain. Rwanda joined the Commonwealth in 2009 in order to take advantage of political and cultural opportunities. For a critical appraisal of Rwanda’s application, see Commonwealth Human Rights Initiative (CHRI). (2009). “Rwanda’s Application for Membership of the Commonwealth: Report and Recommendation of the Commonwealth Human Rights Initiative”. Accessed online: https://www.humanrightsinitiative.org/download/Rwanda%20 application%20for%20membership.pdf 193 The Constitution of the Republic of Rwanda (Official Gazette No. Special of 4 June 2003). Accessed online: https://www.wipo.int/edocs/lexdocs/laws/en/rw/rw032en.pdf N.B. Kinyarwanda is the language of legal authority and the official languages of the Courts. 194 See: Binagwaho, Agnes, Richard Freeman and Gabriela Sarriera. (2018). “The Persistence of Colonial Laws: Why Rwanda is Ready to Remove Outdated Legal Barriers to Health, Human Rights, and Development”, Harvard International Law Journal 59: 45-62, at p. 55. 195 Burnet, Jennie E. (2012). “Situating Sexual Violence in Rwanda (1991-2001): Sexual Agency, Sexual Consent, and the Political Economy of War”, Anthropology Faculty Publications, Paper 4 (no pagination). Accessed online: http://scholarworks.gsu.edu/anthro_facpub/4 196 The Constitution of the Republic of Rwanda (Official Gazette No. Special of 4 June 2003), at Article 190 Accessed online: https://www.wipo.int/edocs/lexdocs/laws/en/rw/ rw032en.pdf Rwanda is a State Party to the following human rights instruments: International Human Rights Treaty Ratification: International Convention on the Elimination of All Forms of Racial Discrimination (16 April 1975); International Covenant on Economic, Social and Cultural Rights (16 April 1975); International Covenant on Civil and Political Rights (16 April 1975); Convention on the Rights of the Child (24 January 1991); Convention on the Elimination of All Forms of Discrimination against Women (2 March 1981); Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (15 December 2008); Convention on the Rights of Persons with Disabilities (15 December 2008). Regional Human Rights Treaty Ratification: African Charter on Human and Peoples’ Rights (15 July 1983); African Charter on the Rights and Welfare of the Child (11 May 2001); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (25 June 2004). 197 Itegeko rikumira kandi rihana ihohoterwa iryo ari ryo ryose rishingiye ku gitsina N°59/2008 ryo kuwa 10/09/2008. (English translation) Rwanda Law No 59/2008 Law on the prevention and punishment of gender-based violence (Criminalise Marital Rape), 2009. Accessed online: http://evaw-global-database.unwomen.org/-/media/files/un%20women/ vaw/full%20text/africa/rwanda%20-%20law%20on%20prevention%20and%20punishment%20of%20gbv%20(2008).pdf?vs=619 198 Ibid, Article 2. 199 Ibid, Article 5 and 19. 200 Organic Law instituting the penal code, Law N° 01/2012/OL of 02/05/2012. Accessed online: https://www.unodc.org/res/cld/document/rwa/1999/penal-code-of-rwanda_ html/Penal_Code_of_Rwanda.pdf

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In response to pressure from Rwandan NGOs including The case of Rwanda demonstrates the challenges the Great Lakes Initiative for Human Rights and associated with post-conflict family and criminal law Development (GLIHD),201 the Government changed the reform in a civil law jurisdiction with strong customary definition and penalty for rape, including marital rape, norms. The Government achieved progressive legal in 2018 with the passing of the law determining offences reform with the passing of Law No 59/2008 in 2009 and penalties in general. The definitions of rape, and the passing of No. 68/2018 in 2018 which has indecent assault, and sexual violence against a spouse criminalised a broad range of sexual offences that may are as follows:202 occur in the public or private sphere. Now the challenge is to ensure that legislative reform will improve the legal “Article 134: Rape and criminal justice response to victims of marital rape  A person who causes another person to perform any and intimate partner sexual violence throughout the state of the following acts without consent by use of force, in urban and rural areas.203 threats, trickery or by use of authority over that person or who does so on grounds of vulnerability of the victim, commits an offence: 1. insertion of a sexual organ of a person into a sexual organ, anus or mouth of another person; 4. MAURITIUS 2. insertion of any organ of a person or any other Mauritius, located in the Indian Ocean, but politically object into a sexual organ or anus of another categorised with other African states, is characterised by person. a mixed legal system derived from English common law Any person who is convicted of rape is liable to and the French Napoleonic Code that existed prior to imprisonment for a term of not less than ten (10) British colonisation. years but not more than fifteen (15) years and a fine Mauritius gained independence as a constitutional of not less than one million Rwandan francs (FRW monarchy and adopted a new constitution on 12 March 1,000,000) but not more than two million Rwandan 1968.204 In terms of the implementation of international francs (FRW 2,000,000). human rights law, Mauritius is considered a dualist Article 135: Indecent assault state with some monist tendencies. International human rights treaty obligations that are enshrined as Any person who performs an indecent act against fundamental rights and freedoms under Chapter II of the another person’s body in any manner whatsoever Constitution are recognised in the courts and other treaty without the latter’s consent, commits an offence. Any obligations must be domesticated through the legislative person who is convicted of indecent assault is liable to process. International human rights treaties require imprisonment for a term of not less than one (1) year no domestication to find application in the Supreme and not more than two (2) years, and a fine of not less Court.205 Mauritius is party to a number of international than one hundred thousand Rwandan francs (FRW and regional human rights treaties including the 100,000) and not more than three hundred thousand Convention on the Elimination of Discrimination against Rwandan francs (FRW 300,000). Women and the Protocol to the African Charter on Article 137: Sexual violence against a spouse Human and Peoples’ Rights on the Rights of Women 206  A person who commits a physical and sexual in Africa. Mauritius is an ethnically and religiously violence on his/her spouse commits an offence. Upon diverse society, with the majority of its population conviction, he/she is liable to imprisonment for a term descendant from . The Civil Code is the of not less than three (3) years but not more than five primary source of family law in Mauritius; however, (5) years.”

201 See: Great Lakes Initiatives for Human Rights and Development (GLIHD) (2015) Shadow Report to the Combined 7th, 8th and 9th Report of the Government of Rwanda to the Committee on the Convention on the Elimination of All Forms Discrimination against Women (CEDAW), at Accessed online: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/ RWA/INT_CEDAW_NGO_RWA_22073_E.pdf Other NGOs including the Rwandan Organisation of Women with Disabilities, the Uwezo Youth Empowerment, and Human Rights First Rwanda Association put pressure on the Government to amend the Penal Code. 202 Law determining offences and penalties in general No. 68/2018 of 30/08/2018. Accessed online: http://www.therwandan.com/wp-content/uploads/2018/10/The-New- Rwanda-Penal-Code.pdf 203 See: Mukashema, Immaculée. (2018). “A Report About Intimate Partner Violence in Southern and Western Rwanda”, International Journal of Child, Youth & Family Studies, 9(3): 68-99. 204 Constitution of the Republic of Mauritius, (12 March 1968, last updated March 2016). Accessed online: http://mauritiusassembly.govmu.org/English/constitution/Pages/ constitution2016.pdf 205 See: Matadeen and Others v M.G.C. Pointu and Others (Mauritius) [1998] UKPC 9 and Madhewoo v The State of Mauritius and another [2016] UKPC 30. 206 Mauritius is a State Party to the following human rights instruments: International Human Rights Treaty Ratification: International Convention on the Elimination of All Forms of Racial Discrimination (30 May 1972); International Covenant on Economic, Social and Cultural Rights (12 December 1973); International Covenant on Civil and Political Rights (12 December 1973); Convention on the Elimination of All Forms of Discrimination against Women (9 July 1984); Convention on the Rights of the Child (26 July 1990); Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (9 December 1992); Convention on the Rights of Persons with Disabilities (8 January 2010). Regional Human Rights Treaty Ratification: African Charter on Human and Peoples’ Rights (19 June 1992); African Charter on the Rights and Welfare of the Child (14 February 1992); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (ratification with reservations June 2017).

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the Code does not provide for personal status law for ‘spouse’ means a person who – the Hindu, Christian, Muslim and other religions present a. is or has been civilly or religiously married on the small island nation.207 to a person of the opposite sex; Like other Sub-Saharan African states discussed b. is living or has lived with a person of the opposite in this section, Mauritius began the process of the sex as husband and wife; or criminalisation of marital rape through amending family law on domestic violence that had been codified c. whether living together or not with a person i n 19 9 7. 208 In the Protection from Domestic Violence of the opposite sex, has a common child with (Amendment) Act of 2016, the widened definition of that person.”209 “domestic violence” and “spouse” is as follows: The explanatory Memorandum attached to this “… ‘domestic violence’ includes any of the following amendment states that it is intended “to provide for acts committed by a person against his spouse, a better protection to victims of domestic violence by, child of his spouse or another person living under inter alia… providing that a person who does an act the same roof – of domestic violence against his spouse, a child of his spouse or another person living under the same a.  wilfully inflicting, or attempting to inflict, a wound or roof shall commit an offence”.210 Although marital blow, or threatening to inflict a wound or blow; rape was not defined as a separate offence, it could b.  wilfully or knowingly placing or attempting to place, be prosecuted as “an offence” recognised under the or threatening to place, the spouse or the other Criminal Code. person in fear of physical injury to himself or to one The international treaty monitoring bodies have of his children; criticised Mauritius for failing to criminalise marital c.  intimidating, harassing, , ill-treating, rape effectively: insulting, brutality or cruelty; The UN Human Rights Committee noted its d. compelling the spouse or the other person by force concern “that the State party has not yet or threat to engage in any conduct or act, sexual criminalised marital rape” (2017).211 or otherwise, from which the spouse or the other The UN Committee Against Torture noted that person has the right to abstain; “Marital rape has not yet been criminalised” e.  confining or detaining the spouse or the other and that the State party should “[define] person, against his will; marital rape as a specific criminal offence with appropriate penalities” (2017). f.  harming, or threatening to harm, a child of the spouse; The UN Committee on the Elimination of Discrimination against Women noted: g.  causing or attempting to cause, or threatening to cause, damage to the spouse’s or the other “The gaps in national legislation with regard to person’s property; some forms of gender-based violence, including the lack of an explicit prohibition of marital rape, h.  depriving, without any lawful excuse, the spouse or notwithstanding that marital rape can be prosecuted other person of resources which the spouse or other under s.249 of the Criminal Code of 1838 and person is entitled to or requires, or of payment for under s.13 (2) of the Protection from Domestic rent in respect of shared residence... Violence Act (Act 6 of 1997)” (2018). The UN Human Rights Council Report of the Working Group made multiple recommendations to strengthen access to justice for victims of sexual violence (2018).

207 Mauritius: Code Civil Mauricien [Mauritius], 1974. Accessed online: https://www.refworld.org/docid/5d0235e67.html Exception: Indian Marriage Ordinance (1912-1981) provided recognition of Hindu and Muslim marriages. 208 Protection from Domestic Violence Act 1997 (No. 6 of 1997). Accessed online: http://gpchildren.com/wp-content/uploads/2019/01/PROTECTION-FROM-DOMESTIC-VIOLENCE- ACT-1997.pdf 209 The Protection from Domestic Violence (Amendment) Act (No. 10 of 2016). Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/104148/126937/ F1548989094/MUS104148.pdf (emphasis added) 210 See: The Protection from Domestic Violence (Amendment) Bill (No. IX of 2016). Explanatory Memorandum Accessed online: http://mauritiusassembly.govmu.org/English/bills/ Documents/intro/2016/bill0916.pdf 211 UN Human Rights Committee. (11 December 2017). “Concluding observations on the fifth periodic report of Mauritius”, CCPR/C/MUS/CO/5, at p. 4, para 19; UN Committee against Torture (22 December 2017) “Concluding observations on the fourth periodic report of Mauritius”, CAT/C/MUS/CO/4, at p. 7, para. 41, 42; African Commission on Human and Peoples Rights UN Committee on the Elimination of Discrimination against Women. (14 November 2018). Concluding observations on the eighth periodic report of Mauritius, CEDAW/C/MUS/CO/8, at p. 6, para. 17.; UN Human Rights Council. (27 December 2018). Report of the Working Group on the Universal Periodic, Review: Mauritius A/ HRC/40/9.

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At a regional level, the African Commission on Human The Maputo Protocol defines sexual violence as a Rights’ Concluding Observations and Recommendations violation of the right to non-discrimination (Article 2), noted that Mauritius has made no attempt to domesticate a violation of the right to life, integrity and security of provisions of the African Charter or the Maputo Protocol the person (Article 4) and a violation of the health and in recent legislative reform efforts aimed at preventing reproductive rights of the victim (Article 14).215 General sexual violence against women.212 Comment No. 2 on Article 14 of the Protocol states that: Commonalities between Mauritius, and the other “Sex-related violence against women is widespread African states discussed in this section, include mixed in almost all African countries, including rape, incest, colonial heritage, hybrid or plural legal systems, strong violence by a partner in the intimate space, including patriarchal cultural norms and criminal and penal marital rape and first sexual experiences that occur by codes as part of their colonial inheritance. Mauritius, coercion. These acts of violence are some of the causes unlike the other states, has not gone through a major of mortality and morbidity, including the transmission post-conflict or other political transition since it gained of HIV and other sexually transmitted infections. They independence in 1968. Law reform, under the purview also generate unwanted pregnancies and the use, by of the Law Reform Commission has been unsuccessful in victims, of unsafe abortion with its consequences such the codification of, for example, the Sexual Offences Bill as psychological trauma” (emphasis added).216 2 0 0 7. 213 To date, Article 249 of the Criminal Code 1838 These clear guidelines have not been taken up by categorises rape as a sexual offence and as an “attempt the Law Reform Commission, which in 2019 has upon the chastity and illegal sexual intercourse”, but fails embarked on a discussion of reform of the Law on to define rape itself.214 Thus, in order to make criminal Sexual Offences with a view to defining sexual offences sanction available to victims of domestic violence, under two categories: those involving physical contact including sexual violence, a statutory definition of rape between the perpetrator and the victim and those not would have to be defined according to international involving physical contact between the perpetrator and regional human rights norms. Due consideration and the victim.217 Neither of these definitions conforms might also be given to the creation of personal status to regional or international human rights norms. laws for various ethnic and religious backgrounds so that they may avail themselves of civil remedies in addition to criminal remedies as victims of sexual violence.

212 See: African Commission on Human and Peoples Rights. (2009). “Concluding Observations and Recommendations on the 2nd, 3rd, 4th and 5th periodic reports of the Republic of Mauritius.” Accessed online: http:// www.achpr.org ; African Commission on Human and Peoples’ Rights. (August 2006) “Mission report of the promotional visit to Mauritius”. Accessed online: http://www.achpr.org/files/sessions/40th/missionreports/mauritius/misrep_promo_mauritius_2006_eng.pdf See also: Techane, Mekerem Geset and Roopanand Mahadev, “The impact of the African Charter and the Women’s Protocol in Mauritius” in Ayeni, Victor. (2012, 2016). The Impact of the African Charter and the Women’s Protocol in selected African states, Pretoria: Pretoria University Law Press. 213 The Sexual Offences Bill (No. VI of 2007) [Mauritius]. Accessed online: https://mauritiusassembly.govmu.org/English/Documents/bill0607.pdf 214 Criminal Code Cap 195 – 29 December 1838 (as of 2006) [Mauritius]. Accessed online: https://www.wipo.int/edocs/lexdocs/laws/en/mu/mu008en.pdf As clarified under the Sexual Offences (Miscellaneous Provisions) Act 2003 (Act No. 30 of 2003). Accessed online: http://www.commonlii.org/mu/legis/num_act/sopa2003443.doc See also: Nursimhulu, Vishni. (October 2016). “Marital Rape is not a Conjugal Right, it is a Crime”, Newsletter: Office of the Director of Public Prosecutions [Mauritius]. Accessed online: http:// dpp.govmu.org/English/Documents/Issue63.pdf 215 African Union, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) 11 July 2003. Accessed online: http://www.achpr. org/files/instruments/women-protocol/achpr_instr_proto_women_eng.pdf Mauritius signed the Protocol in 2005 and ratified the Protocol in 2017, with reservations. 216 General Comment No. 2 on Article 14.1(a), (b), (c) and (f) and Article 14.2(a) and (c) of the Maputo Protocol. Accessed online: http://www.achpr.org/instruments/general-comment- two-rights-women/. 217 Law Reform Commission. (April 2019). “Discussion Paper: Reform of Law on Sexual Offences (involving physical contact between the perpetrator and the victim) in the Criminal Code” (translation). Accessed online: http://lrc.govmu.org/English//DOCUMENTS/DISCUSSION%20PAPER%20REFORM%20OF%20LAW%20ON%20SEXUAL%20OFFENCES.PDF Law Reform Commission. (May 2019). “Discussion Paper: Reform of Law on Sexual Offences (not involving a physical contact between the perpetrator and the victim) in the Criminal Code” (translation). Accessed online: http://lrc.govmu.org/English//DOCUMENTS/DISCUSSION%20PAPER%20REFORM%20OF%20LAW%20ON%20SEXUAL%20OFFENCES%20IN%20 THE%20CRIMIN.PDF

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B. Commonwealth Caribbean

The OECS Family Law Reform Project, which was commenced in 2001 as a part of the Judiciary and Legal Reform Project of the Eastern Caribbean Supreme Court has been a primary driver of legislative reform.222 1. SAINT VINCENT AND THE GRENADINES For SVG, the High Court of Justice and the Eastern Caribbean Court of Appeal are the superior courts Saint Vincent and the Grenadines (SVG) is a small of record and the UK Judicial Committee of the Privy island developing state in the Eastern Caribbean with Council is the Court of final appeal. Lower courts 218 a population of just over 100,000. Ten years after include the Magisterial Courts and a Family Court it was granted associate state status from Britain, SVG whose jurisdiction extends over all inquiries and trials of became the last of the Windward Islands to gain full sexual offences as defined under the Criminal Code.223 independence over its internal and external affairs The OECS Family Law Reform Project model legislation 219 in October 1979. SVG is a member of several expanded the definition of domestic violence and made international, regional and subregional organisations it possible for applicants to pursue a protection order that help guide the economic and social development through a Family Court. The Domestic Violence Act of the country. These organisations include the United 2015, defined domestic violence as “any controlling or Nations (UN), Organization of American States (OAS), abusive behaviour that harms the health, safety or well- Association of Caribbean States (ACS), Caribbean being of a person or any child…” including physical, Community (CARICOM), and Organisation of Eastern sexual, emotional, verbal, psychological abuse among Caribbean States (OECS). other behaviours. Sexual abuse is defined under the SVG is a State party to most international and Act as “any sexual conduct that abuses, humiliates, regional human rights treaties apart from the American degrades or otherwise violates the sexual integrity 224 Convention on Human Rights (“Pact of San Jose”) and of the applicant”. The Domestic Violence Act is the Convention for the Protection of All Persons from limited to civil remedy for victims; only a breach of a Enforced Disappearance. It acceded to CEDAW on 4 protection order is considered a criminal offence. The August 1981 and ratified the Inter-American Convention disconnect between the Domestic Violence Act 2015 on the Prevention, Punishment and Eradication of and the Criminal Code 1988 may be as a result of SVG Violence Against Women (“Convention of Belém do adopting model legislation without conducting a proper 225 Pará”) on 23 May 1996, both without reservations.220 criminal law review. A strong commitment to women’s human rights at the The Sexual Offences, defined under Chapter VII regional and international level has not translated of the Criminal Code, are framed as moral offences. into adequate law and policy reform measures at the The colonial era terminology of “unlawful” and domestic level. A 2014 shadow report to CEDAW “indecent” are retained in the definitions of rape, described violence against women in SVG as a “cultural assault, and other offences.226 221 epidemic.” The case of SVG is illustrative of the difficulties of approaching legislative reform from the level of regional and subregional legal harmonisation.

218 The Commonwealth. (2013). “Member Countries: Saint Vincent and the Grenadines country information”. Accessed online: http://thecommonwealth.org/our-member-countries/st- vincent-and-grenadines 219 Constitution of Saint Vincent and the Grenadines, 1979 (No. 916 of 1979). Accessed online: http://pdba.georgetown.edu/Constitutions/Vincent/stvincent79.html 220 International Covenant on Civil and Political Rights (9 November 1981); Convention on the Elimination of All Forms of Discrimination against Women (4 August 1981); International Convention on the Elimination of All Forms of Racial Discrimination (9 November 1981); International Covenant on Economic, Social and Cultural Rights (9 November 1981); Convention on the Rights of the Child (26 October 1993); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1 August 2001); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their (29 October 2010); and the Convention on the Rights of Persons with Disabilities (29 October 2010). 221 UQAM’s International Clinic for the Defence of Human Rights and the St. Vincent and the Grenadines Human Rights Association. (2014). “Shadow Report on the State Party: St. Vincent and the Grenadines: Violence Against Women and Girls”. Accessed online: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/VCT/INT_CEDAW_NGO_ VCT_18760_E.pdf 222 For background see: The Anguilla Family Law Committee. (2010). “Advancing Women’s Human Rights through Law: Enact; Enforce; Promote — Family Laws in 2010”, OECS Family Law Reform Project. Accessed online: http://www.gov.ai/documents/msd/OECS%20law%20reform.pdf 223 Criminal Code Cap 124 of the Laws of Saint Vincent and the Grenadines, 1990. 224 Saint Vincent and the Grenadines Domestic Violence Act, 2015 (Act No. 7 of 2015), Article 1. 225 SVG has a Constitutional Review Commission, but not a general Law Reform Commission. 226 Criminal Code, 1988 (Act No. 23 of 1988) [Saint Vincent and the Grenadines]., Chapter VIII, Articles 122-148.

71 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth B. Commonwealth Caribbean cont

Sexual intercourse is the material element of rape, a. summary trials of all sexual offences where sexual intercourse is limited to vaginal penetration as defined in Chapter VIII; by a penis. Rape is defined as follows: b. preliminary inquiries in relation to sexual “1. A man who a woman is guilty of an offence offences as defined in Chapter VIII tried and liable to imprisonment for life. on indictment; 2. A man commits rape if — c. preliminary inquiries of all offences tried on indictment where the defendant or any one a. he has unlawful sexual intercourse with a of several defendants charged jointly is under woman who at the time of intercourse did the age of eighteen years.”227 not consent to it; and The CEDAW Committee has urged SVG to amend b. at that time, he knew that she did not consent to both the Criminal Code and the Domestic Violence the intercourse or he was reckless as to whether Act, “to criminalise all aspects of domestic violence… she consented or not. and explicitly criminalise marital rape”.228 This can 3. If at a trial for a rape offence the court has to be accomplished through adopting CARICOM model consider whether a man believed that a woman legislation and Caribbean Court of Justice guidelines for was consenting to sexual intercourse, the presence the pre-trial court process, trial process, and offenders” or absence of reasonable grounds for such belief rehabilitation and management that have been adopted 229 is a matter to which the court is to have regard, by fellow OECS member Antigua and Barbuda. in conjunction with any other relevant matters, in considering whether he so believed. 4. In subsection (3), a ‘rape offence’ means any of the following namely, rape, attempted rape, aiding, abetting, counselling and rape 2. TRINIDAD AND TOBAGO or attempted rape, and incitement to rape. Trinidad and Tobago is an island state in the southern 5. For the purpose of this section a woman is deemed Caribbean with a multi-racial, multi-ethnic, multi-religious not to have consented to sexual intercourse if her population of 1.3 million. After leaving the West Indies consent is obtained by threat or force, or by use Federation, Trinidad and Tobago gained independence of force, or by means of threats or intimidation of from Britain in 1962. On 1 August 1976, it became any kind, or by fear of bodily harm, or by means a Republic under a new Republican Constitution.230 of false representations as to the nature of the act The legal system is based on traditional common or, in the case of a married woman, by personating law where judicial , legislation, and the her husband.” Constitution are the main sources of law.231 Some aspects The Criminal Code further stipulates the jurisdiction of family law are derived from Hindu, Muslim, Christian 232 of the Family Court with respect to sexual offences. and Orisa (traditional Yoruba) religious traditions. Under Article 3A, Trinidad and Tobago is a State party to the majority “1. Notwithstanding the provisions of the Criminal of international human rights conventions and to the 233 Procedure Code and of this Act or any other law, Convention of Belém do Pará. It is also an active member as from the commencement of the Family Court Act, of the Caribbean Community (CARICOM) and it is in the 1992, the following matters shall fall under the sole process of ceding jurisdiction of final appeals from the jurisdiction of the Family Court — UK Privy Council to the Caribbean Court of Justice (CCJ), which is located in the capital Port of Spain.234

227 Saint Vincent and the Grenadines Criminal Code, 1988 (Act No. 23 of 1988). 228 UN Committee on the Elimination of Discrimination against Women. (28 July 2015). Concluding observations on the combined fourth to eighth periodic reports of Saint Vincent and the Grenadines, at p. 6, para. 21 229 “Model Guidelines for Sexual Offences Cases in the Caribbean Region” Judicial Reform and Institutional Strengthening Project (JURIST), A Project of the Caribbean Court of Justice (CCJ) funded by the Government of Canada. Accessed online: http://www.juristproject.org/images/publications/model_guidelines/Model-Guidelines-for-Sexual-Offence-Cases.pdf Antigua and Barbuda is the only Caribbean country with a Sexual Offences Model Court that uses the same structure as the sexual offence courts in South Africa. (Email correspondence dated 18 February 2019 with the Regional Project Coordinator and Gender Specialist, Judicial Reform and Institutional Strengthening Project (JURIST), the Caribbean Court of Justice (CCJ), Port of Spain, Republic of Trinidad and Tobago.) 230 The Constitution of the Republic of Trinidad and Tobago, 1976 (Ch. 1:01, Act 4 of 1976) as of 2000. Accessed online: https://www.oas.org/juridico/english/mesicic3_tto_ constitution.pdf 231 The Constitution of the Republic of Trinidad and Tobago, 1976 (Ch. 1:01, Act 4 of 1976) as of 2000. Accessed online: https://www.oas.org/juridico/english/mesicic3_tto_ constitution.pdf 232 Marriage Act, Ch. 45:01, Muslim Marriage and Divorce Act, Ch. 45:02, Hindu Marriage Act Ch. 45:04, Orisa Marriage Act Ch. 45:04 and Matrimonial Proceedings and Property Act Ch. 45:51. 233 International human rights conventions: International Convention on the Elimination of All Forms of Racial Discrimination (4 October 1973); International Covenant on Economic, Social and Cultural Rights (8 December 1978); International Covenant on Civil and Political Rights (21 December 1978); Convention on the Elimination of All Forms of Discrimination against Women (12 January 1990); Convention on the Rights of the Child (December 1991); Convention on the Rights of Persons with Disabilities (25 June 2015). Regional human rights conventions: Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belem do Para” (A-61) (ratification 4 January 1996); American Convention on Human Rights (denunciation). 234 Caribbean Court of Justice Act, 2005. Accessed online: http://www.ttparliament.org/legislations/a2005-08.pdf

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Trinidad and Tobago actively participated in the creation accused or third person, as the case may be, of CARICOM model legislation on Sexual Offences except when such penetration is accomplished that provided guidance to CARICOM countries on the for medically recognised treatment; removal of language that did not reflect human rights c. the placing of the penis of the accused or third norms and helped alleviated some of the problems person, as the case may be, into the mouth associated with sexual offences trials through the creation of the complainant; or of Family Courts.235 Trinidad and Tobago amended the Sexual Offences Act 1986 in 1994, 2000, and d. the placing of the mouth of the accused or third 2012. 236 The 2000 amendment explicitly criminalised person as the case may be, onto or into the vagina marital rape whereby the crimes of “rape” and “grievous of the complainant.”239 sexual assault” applied to a husband in relation to the The Domestic Violence Act 1999 allows the application commission of the offence on his wife.237 of existing criminal law including sexual offences.240 The crime of “rape” is defined under the 2000 Under the Domestic Violence Act, sexual abuse “includes amendment as: sexual contact of any kind that is coerced by force or threat of force and the commission of or an attempt “4. (1) Subject to subsection (2), a person to commit any of the offences listed under the Sexual (‘the accused’) commits the offence of rape Offences Act in the First Schedule”.241 The Family Court, when he has sexual intercourse with another established in 2004, has jurisdiction over matters related person (‘the complainant’) — to family law at the High Court and Magistrate Court a. without the consent of the complainant where levels, which allows better access to justice for victims he knows that the complainant does not consent of domestic violence including sexual violence. to the intercourse or he is reckless as to whether Compared to other countries in the Commonwealth the complainant consents; or Caribbean, Trinidad and Tobago serves as a model for b. with the consent of the complainant where the legislative reform in the area of gender-based violence. consent — Since reforms began in the 1990s, legislation has been passed to widen the range of sexual offences, i. is extorted by threat or fear of bodily increase penalties, remove all exemptions from marital harm to the complainant or to another; rape prosecution, improve measures to protect victims ii. is obtained by personating someone else; during police investigation and court proceedings, and have provisions in place to keep track of sex offenders iii. is obtained by false or fraudulent after they have served their sentence. Unfortunately, representations as to the nature of legislative reform has not curbed the high prevalence of intercourse; or gender based violence, including “ committed by iv. is obtained by unlawfully detaining intimate partners and other forms of domestic violence”.242 the complainant.”238 Local NGOs have recommended review and reform “‘Grievous sexual assault’ is defined as: of both the Sexual Offences Act and the Domestic Violence Act in order to bring these laws in harmony a. the penetration of the vagina or anus of the with international human rights norms and standards, complainant by a body part other than the penis and they have recommended “adequate, appropriate of the accused or third person as the case may be; and multidisciplinary resourcing” be given to the Gender b. the penetration of the vagina or anus of the Affairs Division and the International Law and Human 243 complainant by an object manipulated by the Rights Unit in order to help facilitate the process.

235 See: CARICOM Secretariat “Model Legislation on Issues Affecting Women”. Accessed online: https://caricom.org/model-legislation-on-isues-affecting-women/ See Rodney-Edwards, Thelma. (2000). “CARICOM Model Legislation on Violence Against Women in the Areas of Sexual Offences, Domestic Violence and Sexual Harassment: Comparison with International Standards and Existing Commonwealth Caribbean Legislation”, pp. 257-297. 236 Sexual Offences Act, Chapter 11:28 (Act 27 of 1986 amended by 20 of 1994, 31 of 2000, and 12 of 2012). Accessed online: https://rgd.legalaffairs.gov.tt/laws2/Alphabetical_List/lawspdfs/11.28.pdf 237 Sexual Offences (Amendment) Act, 2000 (Act No. 31 of 2000), Article 4 (5), 5 (3). Accessed online: http://www.ttparliament.org/legislations/a2000-31.pdf 238 Sexual Offences Act, Chapter 11:28 (Act 27 of 1986 amended by 20 of 1994, 31 of 2000, and 12 of 2012), Article 4. Accessed online: https://rgd.legalaffairs.gov.tt/laws2/Alphabetical_List/lawspdfs/11.28.pdf 239 Ibid, Article 2 240 Domestic Violence Act, Chap. 45:56 (Act 27 of 1999 amended by 8 of 2006) [Trinidad and Tobago], Article 25 (1); First schedule. Accessed online: https://rgd.legalaffairs.gov.tt/laws2/Alphabetical_List/lawspdfs/45.56.pdf 241 Ibid, Article 3. 242 UN Committee on the Elimination of Discrimination against Women. (25 July 2016). “Concluding observations on the combined fourth to seventh periodic reports of Trinidad and Tobago”, CEDAW/C/TTO/CO/4-7, at p. 7, para. 20 (a). Accessed online: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/TTO/ CO/4-7&Lang=En 243 Trinidad and Tobago Non-Governmental Organizations — “Shadow Report 2016: The combined fourth to seventh periodic report of the Republic of Trinidad and Tobago, on the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)”, at 10. Accessed online: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20 Documents/TTO/INT_CEDAW_NGO_TTO_24192_E.pdf

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to deal with any matter that threatens village harmony or any action that is considered village misconduct. Domestic violence, including sexual violence, may fall under either category.247 After Samoa became a State 1. SAMOA Party to CEDAW in 1992, criminal law and family law reform focused on gender-based violence against women; Samoa is a small island developing state with a it led to the expansion of legal protections for victims of population of under 200,000 spread between 11 domestic violence, and to the criminalisation of marital administrative divisions (it m l ) that are further rape in 2013.248 Given the high prevalence of domestic divided between traditional subdistricts, which have violence, including marital rape and sexual violence, 244 now become electoral constituencies (faipule). The that is often socially condoned at the village level, the traditional system of governance (fa’asamoa) determines Samoan legal reform experience provides an example of operation of customary law at the level of the village – the limitations of legislative reform strategies that fail to the most culturally significant unit for Samoans – take into account the influence of custom and tradition in with a high level of autonomy from state level society and legal culture. legal infrastructure.245 Law reform efforts culminated in 2013 with the passing Samoans are, for the most part, ethnically and of the Family Safety Act (Saogalemu o Aiga), and the religiously homogenous: 92.6% of the population Samoa Crimes Act (Solitulafono). The Family Safety identifies as Samoan, 7% as Euronesians (a mix of Act 2013, provides a broad definition of “domestic European and Polynesian heritage), other ethnicities relationship” and “domestic violence” that includes account for less than 1% of the population and of these physical, sexual, emotional, verbal, and psychological 246 groups more than 98% are Christian. abuse; intimidation; harassment; stalking; and any other In other Commonwealth countries with legally pluralist controlling or abusive behaviour that causes harm.249 systems, the operation of law is described as parallel The Samoa Crimes Act (Solitulafono) of 2013, criminalises or hybrid with distinct jurisdictional boundaries based sexual violence through a consent-based definition of on the area of law and the ethnic or religious identities rape or unlawful sexual connection that is not tied to the of the population. Customary courts may, for example, relationship status of the victim and the perpetrator. only have jurisdiction over family or inheritance law or other areas of law not requiring criminal sanction. And the relationship between formal and informal law is codified in statute or in practice as within court hierarchies that were well-established during the colonial period. This is not the case for Samoa, where the traditional authority of the village fono is empowered

244 See: Samoa Bureau of Statistics. (November 2016). “Village Directory”, Population and Housing Census, Matagialalua, Samoa. Accessed online: http://www.sbs.gov.ws/digi/1- Preliminary%20count%20report%202016.V2.pdf 245 UN Human Rights Council. (14 February 2011). “National report submitted in accordance with paragraph 15(a) of the annex to Human Rights Council resolution 5/1: Samoa” Working Group on the Universal Periodic Review, Geneva, 2-13 May 2011, A/HRC/WG.6/11/WSM/1, at p. 2, para. 1. Accessed online: https://documents-dds-ny.un.org/doc/ UNDOC/GEN/G11/106/74/PDF/G1110674.pdf?OpenElement UN Human Rights Council. (14 May 2018). “Report of the Working Group on the issue of discrimination against women in law and in practice on its mission to Samoa (8 to 18 August 2017)”, A/HRC/38/46/Add.1, at. p. 3, para. 5. Accessed online: https://documents-dds-ny.un.org/doc/ UNDOC/GEN/G18/132/91/PDF/G1813291.pdf?OpenElement 246 Archived version of the CIA World Factbook. Accessed online: https://www.cia.gov/library/publications/the-world-factbook/ The Government of Samoa Statistics Department now records citizenship rather than race or ethnicity. The following Christian denominations are recognised by the state: Congregational Christian Church of Samoa; Roman Catholic; Methodist; Latter Day Saints; Assembly of God; Seventh Day Adventist; Worship Centre; Jehovah’s Witness; Full ; Church of Nazarene; Pentecost; Peace Chapel; Baptist; Protestants; Anglican; Elim Church and Christian Fellowship. 247 See also: Village Fono Act 1990 [Samoa]. Accessed online: http://extwprlegs1.fao.org/docs/pdf/sam37645.pdf 248 Samoa is a State Party to the following human rights instruments: International Human Rights Treaty Ratification: Convention on the Elimination of All Forms of Discrimination against Women (25 September 1992); Convention on the Rights of the Child (29 November 1994); International Covenant on Civil and Political Rights (15 February 2008); Convention for the Protection of All Persons from Enforced Disappearance. (27 November 2012); Convention on the Rights of Persons with Disabilities (2 December 2016); Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (28 March 2019). 249 Samoa Family Safety Act (Saogalemu o Aiga), 2013. (2013, No. 8). Accessed online: https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/WSM/INT_CRC_ADR_ WSM_17103_E.pdf

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Article 49 of the Crimes Act defines “sexual violation” in Samoa. It is important to note that, in addition to a as follows: court-based litigation model, both courts have the option to provide intervention and support for families after “1. Sexual violation is: the hearing and before sentencing in consultation with a. the act of a male who rapes a female; or official intervention programs. Thus, conciliation and mediation conducted by “intervention programmes” b. the act of a person having unlawful sexual conducted by spiritual counselling, Ministers of Religion, connection with another person. Samoa Victim Support Group and Community Justice 2. A male rapes a female if he has sexual intercourse Supervisors (CJS), is often preferred in the interest of with that female without her consent freely and family and community harmony and traditional justice.252 voluntarily given. 3. A person has unlawful sexual connection with Customary law and traditional justice are another person if that person has sexual connection enshrined in the post-independence Constitution, with the other person without the consent of that which is considered the supreme law of the other person freely and voluntarily given. land. The Samoan legal system includes the 4. A person may be convicted of sexual violation in Constitution, legislation, common law, and respect of sexual connection with another person “any custom or usage which has acquired the notwithstanding that those persons were married to force of law in Samoa or in any part thereof each other at the time of that sexual connection.”250 under the provisions of any Act or under a The definition has retained some colonial-era wording judgment of a Court of competent jurisdiction.”253 such as “unlawful sexual connection” and the language is not gender-neutral. Read together with the Family Safety Act, it becomes apparent that the criminalisation At present, there is no formal “judicial guidance clause” of sexual violence focuses on the family as a social unit under the Constitution to ensure that court decisions 254 and a space for legal intervention. are consistent with Samoan customs and traditions. The perception that state law and the judiciary do The Family Safety Act 2013 created the Family Violence not necessarily follow fa’asamoa values and traditions Court, which receives criminal cases by referral from may be a factor as to why Samoans view custom the District Court (Faamasino Fesoasoani). In 2014, and tradition as more authoritative than formal law. the establishment of the Family Court as a Division of In practice, Samoan customary law creates barriers the District Court provided victims of domestic abuse, to the access to justice for victims of sexual violence including sexual violence, ease of access to justice. The in the following ways: jurisdiction of the Family Court includes any matter or proceeding related to the Family Safety Act 2013.251 The Family Court and Family Violence Court are well- established in the legal structure of the court system

250 Samoa Crimes Act (Solitulafono), 2013 (2013, No. 10), Article 49. Accessed online: https://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=93579&p_ country=WSM&p_classification=01.04 Sexual intercourse and sexual connection are defined under Articles 48 and 50, and circumstances which do not amount to consent are defined under Article 5.1. Removal of the marital rape exception contained in the Samoa Crimes Ordinance, 1961 (No. 13 of 1961). Accessed online: https://www.unodc.org/res/cld/document/wsm/1961/crimes_ordinance_1961_html/Samoa_Crimes_Ordinance_1961.pdf 251 Family Court Act 2014 (2014, No. 19). Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/98693/117509/F1645544707/WSM98693.pdf 252 Warren, Judge Tafaoimalo Leilani Tuala. (2016). “Family Violence Court and Family Court of Samoa”, Presentation to the Judicial Pacific Participation Fund, New Zealand Institute of Judicial Studies (IJS). Accessed online: https://www.jppf.org.nz/assets/Uploads/15.-Judge-Leilani-Tuala-Warren-powerpoint.pdf 253 Constitution of the Independent State of Samoa, 1962 (as of 2018), Article 111 “laws”. Accessed online: http://www.palemene.ws/new/wp-content/uploads/Document/2016-Constitution-of-Samoa-Eng.pdf 254 Cf. The Constitution of the Federated States of Micronesia, s.11: “Court decisions shall be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia. In rendering a decision, a court shall consult and apply sources of the Federated States of Micronesia.” Accessed online: http://www.unesco.org/education/edurights/media/docs/876d7d4054d99b59302ac282c824f9399cfa7c19.pdf

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Deprivation of the lawful rights of victims due to the legal ambiguity regarding the jurisdictional authority of customary law versus codified state law; Unfair treatment of vulnerable woman such as indigenous women marrying outside of their home 2. TONGA village (nofone) who have been excluded from Tonga is the last Polynesian monarchy and, along with traditional justice mechanisms; Samoa, is considered the heart of Polynesian civilisation. The distinction between traditional Samoan and Tonga operated a feudal- monarchy under the Christian principles is blurred and Christianity is the 1875 Constitution of King George Tupou until 2010 official religion of the state and a source of legal when Tonga became a constitutional monarchy and guidance for the courts; parliamentary democracy under a new Constitution, 257 Traditional punishment enacted on the victim and which remains the supreme law of the Kingdom. the victim’s family, as opposed to the perpetrator, As Tonga was never formally colonised by the British, in the interests of village harmony; customary law, based on indigenous and Christian principles is considered as part of the Constitution and Traditional punishment of ritualised public apology existing statute law. (ifoga) is preferred in the interests of maintaining the cohesiveness of the family (‘aiga).255 The Judiciary of the Kingdom is divided between superior courts (the Court of Appeal, the Supreme In order to strengthen the legislative protections for Court and the Land Court) and a subordinate court victims of sexual violence, legislative reform must focus (the Magistrate’s Court).258 The Tonga Privy Council is on a) the harmonisation of customary law with state law appointed by the King to assist the King with judicial and domesticated human rights norms; b) the creation appointments and other tasks; it has jurisdiction to hear of a comprehensive gender-based violence legislation appeals from the Land Court in relation to matters of that fills the gaps between criminal, family and hereditary estates and title only.259 customary law;256 c) the drafting of constitutional amendments creating a judicial guidance clause Tonga is a deeply religious, socially stratified society ensuring that Samoan courts’ decisions are consistent with a population of around 100,000 spread throughout with fa’asamoa values and traditions, Christian an archipelago of 170 islands that are divided into three principles, and international human rights law. main island groupings.260 Gender roles and expectations are still shaped by two intersecting hierarchies: “the broad social ranking system of royalty, nobility, and commoners, and the complex relationship between members of extended kinship groups.”261

255 See: Samoa Law Reform Commission. (August 2016). Samoa Law Reform Commission 2016-17, “Samoa’s Legislative Compliance with the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)” (Submitted in compliance with s.9(2) of the Law Reform Commission Act 2008), Legislative Assembly of Samoa. Accessed online: http:// samoalawreform.gov.ws/wp-content/uploads/2017/05/CEDAW-FINAL-REPORT-English-FINAL-compressed.pdf Boodoosingh, Ramona, Melanie Beres and David Tombs. (December 2018) “Research briefing: Violence against women in Samoa”, Women’s Studies Journal, 32(1/2): 33-56, at p. 49, 52. UN Committee on the Elimination of Discrimination against Women. (7 August 2012). “Concluding observations of the Committee on the Elimination of Discrimination against Women: Samoa.” CEDAW/C/WSM/CO/4-5. Accessed online: http://evaw-global-database.unwomen.org/-/media/files/un%20women/vaw/country%20report/oceania/samoa/samoa%20cedaw%20co.pdf?vs=4425 at p. 5-6, para. 22. UN Women. (1 November 2017). “Samoa’s Nofotane women assert their rights and independence”. Accessed online: http://www.unwomen.org/en/news/stories/2017/10/feature- samoa-nofotane-women-assert-their-rights-and-independence Secretariat of the Pacific Community. (2006). The Samoa Family Health and Safety Study”, United Nations Population Fund. Accessed online: https://pacific.unfpa.org/sites/default/files/pub-pdf/SamoaFamilyHealthandSafetyStudy.pdf In 2017, by Constitutional Amendment, Samoa became a Christian state. The Constitutional Amendment Act (No. 2) 2017 legally makes Christianity the official religion of the land and a source of law and guidance for the Courts. Accessed online: http://www.palemene.ws/new/wp-content/uploads/Constitution-Amendment-Act-No.2-2017-Eng.pdf 256 UN Human Rights Council. (14 May 2018). “Report of the Working Group on the issue of discrimination against women in law and in practice on its mission to Samoa (8 to 18 August 2017)”, A/HRC/38/46/Add.1 , at. p. 18, para. 93 (e). Accessed online: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/132/91/PDF/G1813291. pdf?OpenElement 257 Constitution of Tonga, Ch. 01.01 (2016 Revised Edition). Accessed online: https://ago.gov.to/cms/images/LEGISLATION/PRINCIPAL/1988/1988-0002/ConstitutionofTonga. pdf_2.pdf 258 Ibid, Article 84. 259 Ibid, Article 50. See also: Pacific Islands Legal Institute Database: Tonga. Accessed online: http://www.paclii.org/to/courts.html 260 Tongans are divided into commoners; chiefs and nobles; and royals. See: Marcus, G. (1978). “Memoir No. 42. The Nobility and the Chiefly Tradition in the Modern Kingdom of Tonga”. The Journal of the Polynesian Society, 87(2): 73-120.United Nations Development Programme (UNDP). “About Tonga” (Statistics, 2011). Accessed online: http://www.pacific. undp.org/content/pacific/en/home/countryinfo/tonga.html 261 Ibid, at p. 77.

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Tonga is an example of international human rights A consent-based definition of the crime of rape is legal exceptionalism. Tonga is a State party to only two provided for under Article 118 of the Criminal Offences international human rights conventions and it is the only Act, 2016: Commonwealth country that has not ratified CEDAW.262 “1. Any person committing rape that is to say any In a statement made at the Human Rights Council during person who carnally knows any female — the Universal Periodic Review process, the Solicitor General defended this exceptionalism: a. against her will; “Tonga humbly requests member states to understand b. being aware that she is in a state of insensibility and appreciate the unique circumstances that it faces (whether due to sleep, intoxication or any other when advancing human rights protection, such as cause); resources, strong cultural values, predominant Christian c. being aware that she is feeble minded, insane faith and the growth of liberal ideologies.”263 or is an idiot or imbecile as to be incapable On the ground, the most vocal anti-CEDAW protests of giving or refusing consent; have been led by various church groups and church d. by personating her husband; or leaders. In 2009, when the Legislative Assembly voted no to ratifying CEDAW, their justification was based on e. by reason of her consent to such carnal the presumption that the core provisions in CEDAW are knowledge having been given under fear in direct conflict with the Tonga Constitution and laws; of death or serious injury, shall be liable to customs and traditions; and basic Christian doctrines.264 imprisonment for any term not exceeding 15 Legal reform efforts have, therefore, focused almost years. exclusively on the maintenance of family and community 2. For purposes of subsection (1) a man commits rape life, where domestic violence including sexual violence if at the time of sexual intercourse with a woman he is perceived as a threat to traditional life in the villages. knows that she does not consent to the intercourse Despite these challenges, the Tonga Family Protection or he is reckless as to whether she consents to it. Act 2013, defined domestic abuse as mental, physical, 3. It is hereby declared that if at a trial for a rape economic, and sexual abuse, and made it possible for offence the Court has to consider whether a man perpetrators to be prosecuted for rape and other sexual believed that a woman was consenting to sexual offences. Under the Family Protection Act, sexual abuse intercourse, the presence or absence of reasonable “includes any conduct of a sexual nature without consent grounds for such a belief is a matter for which the that abuses, humiliates, degrades or otherwise violates Court is to have regard in conjunction with any 265 the dignity of a person”. other relevant matters in considering whether Article 29 defines the relationship with criminal offences he so believes. and other laws as follows: 4. A prosecution may be instituted against a woman “Subject to clause 12 of the Constitution, in addition as an aider and abetter in respect of an offence to liability under this Act, a respondent may also be under subsection (1).”266 prosecuted under other criminal laws for the time being Section 2 appears to remove the marital rape exception. in force for his acts if the facts disclose the commission of a separate criminal offence under those provisions. Note: For example, (without limitation), assault, offences endangering life and health, grievous bodily harm, rape, other sexual offences, murder and manslaughter and sexual exploitation through people trafficking and smuggling.”

262 International Convention on the Elimination of All Forms of Racial Discrimination (16 February 1972) and Convention on the Rights of the Child (6 November 1995). 263 Radio New Zealand. (17 January 2018). “Tonga defends progress on human rights at the UN”. Accessed online: https://www.rnz.co.nz/international/pacific-news/348269/tonga- defends-progress-on-human-rights-at-un 264 Lee, Helen. (2017). “CEDAW Smokescreens: Gender Politics in Contemporary Tonga”, Journal of the Contemporary Pacific, 29(1): 66-90, at p. 67. Accessed online: https:// scholarspace.manoa.hawaii.edu/bitstream/10125/53883/v29n1-66-90.pdf 265 Tonga Family Protection Act, 2013 (Act 19 of 2013), Article 2. Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/98651/117466/F750788472/ TON98651.pdf 266 Criminal Offences Act, Ch.10.09 (2016 Revised Edition), Article 118. Accessed online: https://ago.gov.to/cms/images/LEGISLATION/PRINCIPAL/1924/1924-0010/ CriminalOffencesAct_2.pdf

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As with Samoa, the definition of rape upholds traditional gender norms: rape is non-consensual “carnal knowledge” of a female. The definition of domestic violence is more in keeping with the international human rights norms where sexual violence is defined as a violation on the dignity of a person. Intimate partner sexual violence that takes place within spaces and relationships that do not fall within the traditional and religious understandings of “family” are categorised as sexual assault with lesser punishments.

Gender-based violence, including intimate partner sexual violence, sexual assault and rape, are widespread in Tonga.267 Some local NGOs, such as Ma’a Fafine mo e Famili (MFF), which developed out of the Legal Project of the Catholic Women’s League, are involved in advocacy work on gender- based violence. Through women’s rights and domestic violence awareness programmes, MFF has begun garnering support for the ratification of CEDAW by the Tonga Government.268 There does not, however, appear to be significant support for the ratification of CEDAW or any other international human rights law convention at this time, nor is there support for changing the legal architecture of the Judiciary through the addition of a Family Court or to better implement the Family Protection Act.269

267 UN Human Rights Council, Compilation on Tonga [UN Information], A/HRC/WG.6/29/TON/2, 31 October 2017, p.4, para. 18. 268 Ma”a Fafine mo e Famili “About”, Blog. Accessed online: https://mfftonga.wordpress.com 269 Women & Children Crisis Center Tonga. (23 January 2017). Better implementation of the “Family Protection Act 2013” and the need for Tonga to have a separate Family Court”. Accessed online: https://www.tongawccc.org/better-implementation-of-the-family-protection-act-2013-and-the-need-for-tonga-to-have-a-separate-family-court/

78 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 3. Country reports

Conclusion

Legislative advances in the criminalisation of marital state with a civil law system, provides an example rape and intimate partner sexual violence have varied of the relationship between legislators, activists and considerably among Commonwealth countries and international actors on the criminalisation of marital within and between political and geographic regions. rape. The case of Mauritius demonstrates the influence Social tolerance for intimate partner violence varies of French colonisation in criminal law, and, more according to the cultural and religious influences on the generally, a legal culture that has more in common state legal systems. The internalisation of international with Asia than with Sub-Saharan Africa. human rights legal norms, have, for the most part, States in Pacific and Caribbean have shared been difficult to accomplish within states whose legal demographics as small island developing states with systems are primarily based on those of their former deeply religious societies. Samoa provides an example colonisers. For the most part, states in this section of overcoming the challenge of customary law reform approach international law from a dualist perspective, in a traditional society that values justice at the local which requires a legislative instrument to bring effect village level more than that at the level of the state to international law in the domestic sphere. The judiciary. Tonga challenges our assumptions about Commonwealth countries in this section were divided the role of international actors in promoting legislative into three regions: Sub-Saharan Africa and the Indian reform. It is a conservative religious monarchy that Ocean; Pacific; and Caribbean. Within these regional has embarked on legislative reform in the absence groupings, states embarked on unique approaches to of international human rights law. Both Samoa and legislative reform of family, criminal and customary law Tonga view gender-based violence as a threat to the based on the requirements of their post-colonial mixed family and, therefore, as a threat to Polynesian culture legal systems. and identity. Trinidad and Tobago is a model for Within Sub-Saharan Africa and the Indian Ocean, reform in the area of gender-based violence legislation South Africa and Namibia have been more successful in the Commonwealth Caribbean, however, when that Rwanda and Mauritius in the explicit criminalisation compared to countries in Sub-Saharan Africa it falls of marital rape and intimate partner sexual violence. short of international and regional human rights norms. South Africa provided an example of ambitious Saint Vincent and the Grenadines is an example of legislative reform in the area of family law and criminal the difficulty of approaching legislative reform with law, with a cautious approach to customary law and an overreliance on model legislation developed at an acknowledgement that changing cultural attitudes, subregional level. It is through the interaction of the rather than legislative reform, would address the local, sub regional, regional, and international that problem of marital rape in the traditional practice of Commonwealth countries may find the multitude of Ukuthwala.270 Interestingly, Antigua and Barbuda is the resources required to bring about changes in law and only Caribbean country that now has a functioning society on marital rape and intimate partner violence Sexual Offences Model Court that uses the same and provide access to justice and reparation for structure as the sexual offence courts in South Africa.271 victims of sexual violence. Namibia ought to be recognised as having a definition of rape, including marital rape, that is in keeping with international human rights norms on sexual violence as a violation of the bodily integrity of the victim under “coercive circumstances”.272 Rwanda, as a post-conflict

270 See Campaign: http://www.justice.gov.za/brochure/ukuthwala/2015-Ukuthwala_leaflet-Eng.pdf 271 Email correspondence dated 18 February 2019 with the Regional Project Coordinator and Gender Specialist, Judicial Reform and Institutional Strengthening Project (JURIST), the Caribbean Court of Justice (CCJ), Port of Spain, Republic of Trinidad and Tobago. 272 Combatting Rape Act, 2000 (No. 8 of 2000), s.2 (1-2), Accessed online: https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/82559/90506/F1283246486/NAM82559.pdf

79 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth ISBN 978-1-913173-06-7

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