Attorneys laud Kirby over marital rape ruling

OARABILE MOSIKARE
Staff Writer | Friday June 7, 2013 00:00

BAD is a Facebook forum for lawyers in Botswana to debate, interrogate and discuss matters affecting the life of law and its institutions in Botswana and take necessary action. It has more than 200 active members. 'I have always been aware of this decision and I thought the issue was settled at common law. Maybe I was naive. Many of us accept that Kirby  is a decent judge. This decision does not prejudice the executive at all. It's a pleasing judgment for gender equality. He has delivered for some of us here,' commended Tshiamo Rantao.

Another BAD member who goes by the name Odey Odada Riley said the decision is commendable. 'Why was this decision met with so much silence at the time?' wondered Riley. In response, Gosego Rockfall Lekgowe said: 'conspiracy by husbands? Or lukewarm jurists of the time?'

'We need to publicise it beyond the boarders of this group... I think the general society is absolutely ignorant of this law... And Kirby's decision is yet to spark some social debate, possibly some need to refer the question to the CoA,' said Riley. For his part, Uyapo Ndadi said: 'Wow, I have been ignorant all along. Thank you Owen Nsala and Gosego Rockfall Lekgowe. Will visit the decision. But then again, is it not law that when a statute alters the common law position, it has to say so specifically?' Ndadi later said Parliament refused to have marital rape included in the Domestic Violence Act 'saying ke botlhodi to think of such'.

But Joe Akoonyatse differed with his learned colleagues. 'The statement made by the judge was obiter. There was no issue before him calling for such far-reaching a statement. The statement was also not made with the benefit of argument from counsel. I think if section 141 of the Penal Code is going to be given the meaning proposed by Judge Kirby, it should be worded in very clear and unambiguous terms, like the section in the Abolition of Marital Power Act that abolishes the common law rule of the husband as the head of the family.  Otherwise there will be a need to justify, as indicated by Uyapo Ndadi, why Parliament declined to include in 2008 marital rape in the Domestic Violence Act.  Kirby's judgment was delivered in November 2006,' said Akoonyatse.

In the Letsholathebe versus the State case the then High Court Judge Kirby had this to say: 'The magistrate placed great emphasis on the fact that the appellant and the complainant were not married, and held that this rendered sexual intercourse between them unlawful.

He said 'any such sexual intercourse would of course be unlawful unless it is sanctioned by marriage between the parties,' and went on to add: 'Of importance here however, is that the parties say nothing about marriage and from their evidence it is made amply clear that they were not married, and I so find.

The sexual intercourse of 2 January 2002 between them was therefore unlawful, and I still so find.'  This is a surprising statement of the law, and in my view an incorrect one, in modern society, where not every couple chooses marriage. State counsel explained it as a reference to the rule that marital rape is not unlawful.  This, he submitted was why the offence of rape was constituted by 'unlawful carnal knowledge of the complainant without her consent'.

The judge said virtually all sexual offences in the Penal Code (Cap 08:01) involving rape, incest, defilement and indecent assault, preface either the words 'carnal knowledge' or the words 'indecent assault' with the word 'unlawful'.  These offences may be rendered unlawful in a number of ways or in a number of cases, such as having carnal knowledge of infants, or imbeciles, or of close relatives, or by fraud.

'It may be that historically, since our Penal Code was based upon the English criminal law, the use of the word 'unlawful' in addition to the words 'without her consent' in the offence of rape may have been intended to embrace as well the old notion that there can be no rape within marriage, but certainly that is not, in my judgment, the case today.

Rape is a most serious, humiliating and invasive assault against a person, whether male or female, and to suggest that it should be permitted if the perpetrator is a spouse, is, in my view, totally unacceptable, and a historic aberration. By S 217 of the Criminal Procedure and Evidence Act (Cap 08:02):

'(1) The wife or husband of an accused person is competent and compellable to give evidence for the prosecution without the consent of the accused person where such person is prosecuted for any offence against the person of either of them...''

Kirby continued that just as assault or murder are offences against the person, so is rape, and the section is a strong indicator that marital rape is an indictable offence, although it may in some cases be difficult to prove. 'I would respectfully endorse the findings of Lord Lane CJ in E R v R [1991] 2 All ER 257 (HL) at p 266, where he held that the rule that a husband could not be guilty of raping his wife was an anachronistic and offensive common law fiction, and since it no longer represented the position of a wife in modern day society it should no longer be applied'.