Henderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN IN GEORGE TOWN, GRAND CAYMAN
IND. NO. 46 OF 2002
REGINA
- VS -
SANDY BUSH
RULING delivered by THE HONOURABLE
JUSTICE HENDERSON on the 19th
day of April 2005, George Town, Grand Cayman.
CHARGES: ATTEMPTED RAPE, INDECENT ASSAULT,
ASSAULT OCCASIONING ACTUAL BODILY HARM
APPEARANCES:
For the CROWN: MR. A. ROBERTS
For the DEFENDANT: MR. J. AUSTIN-SMITH
(RULING BY THE COURT)
THE COURT: The defendant, Sandy Anthony Bush, answers to an indictment containing three counts. The first is a count of attempted rape, the second a count of indecent assault, the third a charge of assault occasioning actual bodily harm.
The three counts refer to a single incident in which Mr. Bush is said to have sexually assaulted his then wife Jewel Eleanor Bush. At the time of the alleged offences, the parties were living separate and apart and divorce proceedings had been commenced. There was, however, no decree of dissolution in effect, so they remained lawfully married.
On this submission of no case to answer on counts one and two, Mr. Austin-Smith argues that the traditional view held by the common law; that a husband cannot commit rape upon his wife, is still the law today in the Cayman Islands. It is therefore argued that Mr. Bush cannot be convicted of the first two counts.
We are fortunate to have a very thorough and authoritative decision on the subject from the United Kingdom in Regina v R, a decision of the House of Lords reported at [1992] 1 A.C.
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599 (H.L.) Lord Keith gave judgment for the Court. He was there addressing the very same issue in circumstances where the defendant husband and his wife were living separate and apart but not yet divorced.
His Lordship began by pointing out that what may be called the "traditional view" on this question derives from History of the Pleas of the Crown by Sir Matthew Hale, published in 1736. That very learned jurist wrote there:
"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."
That passage represents the opinion of the learned author, but one that was at that time, and for some 150 years subsequently, unsupported by judicial authority.
Lord Keith said at page 616:
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"It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage the wife gives her irrevocable consent to
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sexual intercourse by her husband in all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern time any reasonable person must regard that conception as quite unacceptable."
That passage, which undoubtedly represented the universal opinion held in the United Kingdom in 1992, is equally applicable to the Cayman Islands in the year 2005.
The Court went on to consider exhaustively all of the reported decisions on the question. In a number of these decisions the proposition was accepted that, although there is an implied consent to sexual intercourse given by a wife upon marriage, the implied consent can be revoked by circumstances where the parties are living separate and apart or have obtained a decree of judicial separation from a Court. Courts have found that the implied consent alluded to by Sir Matthew Hale had been revoked and a husband could indeed commit rape upon his wife.
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The Court, after reviewing these various authorities, said this at page 621:
"The position then is that that part of Hale's proposition which asserts that a wife cannot retract the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases. On grounds of principle, there is no good reason why the whole proposition should not be held inapplicable in modern times."
At that juncture, Lord Keith addressed a particular argument having to do with the word "unlawful" which was found in the statutory definition of rape in effect at that time. The argument, which appears to have been accepted in some of the previous authorities, is that the word "unlawful" is intended to mean "outside the bonds of marriage"; in other words, the presence of the word "unlawful" in the statute, so it was argued, signals that a husband cannot be guilty of the rape of his
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wife. That argument was rejected unanimously by the House of Lords with these words:
"The fact is that it is clearly unlawful to have sexual intercourse with any women without her consent, and that the use of the word in the subsection adds nothing. In my opinion, there are no rational grounds for putting the suggested gloss on the word and it should be treated as being mere surplusage in this enactment, as it clearly fell to be in those referred to by Lord Justice Donovan."
That latter reference is to a number of other statutory definitions of crimes which include the word "unlawfully". In at least some of those, the word adds no real meaning. For example, the traditional definition of carnal knowledge with a girl under the age of 12 found in the Penal Code (1995 revision) is this:
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"Whoever unlawfully and carnally
knows any girl under the age of 12
years is guilty of an offence."
What would be gained or lost if the word
"unlawfully" were removed from that definition?
I say nothing. There are no circumstances
known to the law in which it is permissible to
have carnal knowledge with a girl under the age
of 12. It was examples of this sort that Lord
Justice Donovan had in mind.
In the Cayman Islands, the statutory
definition of "rape" has always included the
word "unlawfully".
Mr. Austin-Smith's argument is constructed
around the fact that in 1998 the Legislature
here took the opportunity to review and revise
the statutory definition of the crime of rape.
Its purpose in doing so appears to have been to
provide expressly for the case of homosexual
rape. However, in formulating a new definition
of the crime, the word "unlawful" was retained.
The Penal Code Amendment Law (1998), repeals
the former definition (found at section 125 of
the Penal Code) and substitutes for it the
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following:
"(1) A man who rapes a woman or another man commits an offence.
(2) A man commits rape if (a) he has unlawful sexual intercourse, whether vaginal or anal, with another person who at the time of intercourse did not consent to it; and,
(b) at the time he knows that the other person does not consent to the intercourse, or he is reckless as to whether the other person consents to it."
Thus, the Legislature, which must be taken to have have been fully aware of the decision of the House of Lords in R, chose to retain the word "unlawful".
Mr. Austin-Smith argues that that signals an intention on the part of the Cayman Islands Legislature that the traditional view of Sir Matthew Hale should continue to inform and govern the law of rape in this jurisdiction.
The defendant also points to the fact that in the United Kingdom in 1994 the statutory
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definition of "rape" was amended. The word "unlawful" was removed.
The editor of Archbold, 2003 edition, expresses the following opinion at paragraph 20-4:
"The omission of the word unlawful makes clear Parliament's adoption of the decision of the House of Lords in R v R, 1992 AC 599, that a man may rape his wife."
Again, at paragraph 20-23, the learned editor says:
"A man may be convicted of raping his wife: R v R, 1992, 1 AC 599 House of Lords (confirmed by the revised definition of rape introduced by the Criminal Justice and Public Order Act 1994)."
I respectfully disagree with the learned author's opinion. In my view, the word "unlawful" found in this context is, as the
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House of Lords clearly said, mere surplusage.
It adds no meaning. For that reason, it was unnecessary for Parliament to remove the word in order to make clear that a husband may rape his wife.
The old definition of indecent assault, at least in this jurisdiction, included the word "unlawfully". The Penal Code (1995 revision), section 130 subsection (1) provides:
"Whoever unlawfully and indecently assaults any woman or girl is guilty of an offence."
In 1998, the Penal Code Amendment Law of that year changed that definition to the following:
"It is an offence for a person to make an indecent assault on a woman."
So, the word "unlawfully" was removed from the definition of indecent assault in 1998, but not from the definition of rape. What can be inferred from that? Following
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Mr. Austin-Smith's submission to its logical end, one would have to conclude that the intention of the Cayman Islands Legislature in 1998 was to retain the traditional rule that a husband cannot rape his wife, but yet to change that traditional rule with respect to indecent assault and provide, through the revised definition, that a husband may commit an indecent assault upon the person of his wife. Why would the Legislature come to such a conclusion? In my view, there is no reasonable answer to that hypothetical question. I think the word "unlawfully" in the Penal Code Amendment Law, 1998 is indeed mere surplusage. The Legislature must be taken to have been aware of the decision in R, and to have accepted the House of Lords' view of the superfluity of that word.
In conclusion, I do not think it can be said, as a matter of statutory interpretation, that the Legislature in this jurisdiction has spoken on the question one way or the other.
I am not bound to follow a decision of the House of Lords. They are, of course, strongly persuasive. As I indicated earlier, the
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evolving social conditions and mores, of which the House of Lords took notice, and which led it to conclude as it did that a husband may commit rape upon his wife, are equally apparent in this jurisdiction. I see no reason in law or in principle not to follow the decision in R.
In my view, the law of the Cayman Islands today provides that a husband may commit rape upon his wife. That possibility is not excluded by the definition of "rape" found in the Penal Code.
All of what I have said is equally applicable to the offence of indecent assault. For the same reasons, it is my view that the law of the Cayman Islands today admits of the proposition that a husband may commit an indecent assault upon his wife.
For these reasons, the no case submission is dismissed.