Mcgregor
Twist in the marital rape debate
The long-awaited debate on proposed amendments to the Offences against the Person Act making it possible for a man to be prosecuted for raping his wife, is yet to materialise. The votes are split, and those in favour of the change are still torn as to the impact it is likely to have on families.
Another point for discussion, came to light in an English case in 1988 - The Queen v Roy Kowalski. Kowalski was charged for indecent assault and assault occasioning actual bodily harm after he forced his wife at knife point, to have sexual intercourse with him. He pleaded guilty to both charges, but appealed against conviction for indecent assault after he was sentenced to four years' imprisonment.
The background is important. Kowalski was married in January 1985, but by May 1986, the marriage was failing. The couple continued to occupy the same house, but sexual intercourse had ceased, and the wife served a divorce petition on him.
In September 1986, Kowalski got home while his wife was using the bathroom. He burst in, placed a knife at her throat, and ordered her to undress. He then forced her into the bedroom and made her undress him.
As the drama unfolded, Kowalski remembered that his wife had an appointment, so he made her call to say that she would be late. He forced her to pour them each a drink and told her to drink. He then forced her to perform oral sex on him. He then had sexual intercourse with her, still at knife point.
The question the court had to decide, was whether oral intercourse amounted to indecent assault, since the husband enjoyed immunity from prosecution in respect to the rape of his wife. It was argued that the charge could not be sustained because oral intercourse was a preliminary to sexual intercourse and was therefore covered by the immunity from prosecution.
The court dismissed the appeal and decided that the immunity did not extend to the preliminary acts such as oral intercourse, so it was quite appropriate to charge the husband for indecent assault. The court formed the view that the immunity covered only natural sexual intercourse and oral intercourse could not be so described. In fact, because marriage does not imply consent to oral intercourse, consent must be obtained as the occasion arises.
In one writer's opinion, the only way to avoid an anomaly such as the one which arose in this case is to abolish the (so-called) immunity. I would only add that Kowalski case underscores the need for certainty in the law. So, let's proceed with the debate!
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.
Twist in the marital rape debate
The long-awaited debate on proposed amendments to the Offences against the Person Act making it possible for a man to be prosecuted for raping his wife is yet to materialise. The votes are split, and those in favour of the change are still torn as to the impact it is likely to have on families.
Another point for discussion, came to light in an English case in 1988 - The Queen v Roy Kowalski. Kowalski was charged with inde-cent assault and assault occasioning actual bodily harm after he forced his wife at knifepoint to have sexual intercourse with him. He pleaded guilty to both charges, but appealed against conviction for indecent assault after he was sentenced to four years' imprisonment.
The background is important. Kowalski was married in January 1985, but by May 1986, the marriage was failing. The couple continued to occupy the same house, but sexual intercourse had ceased, and the wife served a divorce petition on him.
In September 1986, Kowalski got home while his wife was using the bathroom. He burst in, placed a knife at her throat, and ordered her to undress. He then forced her into the bedroom and made her undress him.
As the drama unfolded, Kowalski remembered that his wife had an appointment, so he made her call to say that she would be late. He forced her to pour them each a drink and told her to drink. He then forced her to perform oral sex on him. He then had sexual intercourse with her, still at knifepoint.
The question the court had to decide was whether oral intercourse amounted to indecent assault, since the husband enjoyed immunity from prosecution in respect to the rape of his wife. It was argued that the charge could not be sustained because oral intercourse was a preliminary to sexual intercourse and was, therefore, covered by the immunity from prosecution.
The court dismissed the appeal and decided that the immunity did not extend to the preliminary acts such as oral intercourse, so it was quite appropriate to charge the husband with indecent assault. The court formed the view that the immunity covered only natural sexual intercourse and oral intercourse could not be so described. In fact, because marriage does not imply consent to oral intercourse, consent must be obtained as the occasion arises.
In one writer's opinion, the only way to avoid an anomaly such as the one which arose in this case is to abolish the (so-called) immunity. I would only add that Kowalski case underscores the need for certainty in the law. So, let's proceed with the debate!
Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.
