Abstract:
On February 22, 2007, the Ghanaian Parliament passed the
long awaited Domestic Violence Act (“DV Act”). Although the original bill
specifically prohibited marital rape, parliament bowed to public pressure and
removed the provision, leaving husbands free to rape their wives with
impunity. Marital rape constitutes a violation of women's human rights. The
Ghanaian parliament should act immediately to expressly make marital rape a
crime.
Consent to marriage is the equivalent of consent to sex in Ghanaian custom
and law. This article outlines why the passage of the DV Act leaves the
status of the martial rape exemption in question and why the Ghanaian
parliament must explicitly repeal the section of Article 42(g) of the
Criminal Code, which provides for the exemption. Part I gives a brief history
of the common law basis for the marital rape exemption. The 'marital rape
exemption' is a throwback from the British common law, but was codified into
the criminal law of Ghana. Continuing on from Part I, Part II discusses the
basis of the exemption within Ghanaian Law. The Criminal Code provides for
justifiable force or harm on numerous grounds including consent given at
marriage. Part III of the article will explore some of the provisions of the
DV Act, particularly Article 4, which states that domestic violence is not
justified on the basis of consent. Arguments that this provision essentially
repealed article 42(g) are not persuasive because of (i) drafting changes in
the bill; (ii) criminal classifications within the DV Act and the Criminal
Code; and (iii) the legislature's failure to specifically repeal the marital
rape exemption. Finally, Part IV will briefly review Ghana's regional and
international human rights obligations regarding marital rape.
Rape is dehumanising and injurious to the physical and mental well being of
women. Marital rape is domestic violence and is not justifiable on the basis
of consent. The Domestic Violence Bill could not pass if it provided for the
removal of the marital rape exemption. The exemption offends international
women's rights law, as well as the Ghanaian Constitution. Under Ghana's
international obligations, the government is required to take action to
eliminate marital rape. Although the marital rape exemption of Article 42(g) is
illegal under the Constitution and should be considered void, as with other
harmful practices, such as female circumcision, trokosi and widowhood
practices, parliament should officially repeal Article 42(g) and
corresponding Article 100 of the Criminal Code and not leave it for judicial
interpretation. This will also aid in educating the population that marital
rape will not be tolerated by the government and thereby help to eliminate
the practice.
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