The legal position with relation to marital rape has been thrown into confusion this week, with two contradictory laws relating to the basis of consent within marriage now on the statue book following the passing of the Domestic Violence Act on Wednesday.

The Act has been hailed as a milestone in the fight against physical, psychological, emotional and sexual abuse in the home, but despite vociferous campaigning from women's rights organisations, the Act that was finally passed by Parliament on Wednesday failed to repeal the controversial Section 42(g) of the Criminal Code, 1960 (Act 29) which states that once married, consent can not be rescinded, thus preventing a wife from prosecuting her husband for rape within marriage.

The clause overturning Section 42(g) was removed from the Domestic Violence Bill prior to its Second Reading on November 23, 2006, following a decision in Cabinet. Speaking during the Second Reading of the Bill, the Deputy Attorney-General and Minister of Justice, Kwame Osei-Prempeh, cited public outcry about the clause as a factor in the decision to remove the marital rape clause, and explained that the "the inclusion of marital rape in the bill has the tendency of breaking families and destroy its purpose of harmony in marriages”. 

However, later at Committee Stage a new clause was added, pertaining to consent in marriage, which reads, "the use of violence in the domestic setting is not justified on the basis of consent”.

Speaking to The Saturday Statesman, the Minister for Women and Children"s Affairs, Hajia Alima Mahama, said that following the Domestic Violence Act, “consent will not be a defence,” reiterating that “nobody can come to court and say they consented to violence.”

It will now be for the Judiciary to decide how they weigh up the legal merits of marital rape cases. The Minister said she did not intend to issue guidance to the courts about how they should adjudicate between the competing laws on consent, saying that "it is their job to interpret" the law. The legal basis for prosecuting marital rape is therefore likely to be determined by initial landmark cases that will establish case law on the subject, which later prosecutions will then be able to rely upon.

Women's rights campaigners remain hopeful that the new legislation will still facilitate successful prosecutions in cases where women have been raped by their spouse. The Ark Foundation, a non-governmental organisation that focuses on women and children"s rights protection, said it will be advising women that they should bring charges for marital rape against their spouse under the new Act, and Adwoa Bame, Executive Director of The Women’s Initiative for Self-Empowerment, an NGO providing counselling and support to women and children survivors of violence, said they were also "extremely optimistic" that despite the somewhat vague provision in the Act, it will still prove possible to use it successful in prosecuting cases of marital rape.

The Executive Director of WISE confirmed, however, that it will continue to campaign for a repeal of the contentious Section 42(g) of the Criminal Code (Act 29).

The incidence of marital rape in Ghana is hard to quantify because of victims’ reluctance to come forward, but figures from a survey by the Gender Centre on Violence Against Women and Children in Ghana in 1997 found that 21 percent of women have been forced by husbands to have sex, but 95 percent of these women did not report the incident.

Despite an impressive consensus behind much of the Bill during its long gestation period, including support from the Opposition NDC at its final reading this week, public opinion on marital rape was divided and the Government’s consultation last year about changing the position on consent within marriage provoked heated debate, with critics arguing that any move to allow prosecution of cases of marital rape would create conflict between husbands and wives, and many men believing the change was an attempt to impose foreign notions of marriage on Ghanaians, particularly in terms of sexual relations.

Women’s rights groups strongly contest this allegation. Speaking to The Saturday Statesman, the Executive Director of WISE argued that "rights shouldn’t change because of your status" and if as a single person you have a right not to be violated, then as a married person you have the same right.

One thing all parties seem able to agree on is the need for an effective and thorough support plan to implement the legislation and tackle domestic violence at the grass roots. Experience from elsewhere in the world clearly illustrates that although legislation is vital, it is but the first step in eliminating domestic violence of all forms, including marital rape.

Societal and cultural barriers prevent victims coming forward and there is the need for concerted action at national and local level if this is to be overcome. Key to eliminating the stigma associated with marital rape is education and awareness-raising, both amongst potential victims and more widely in communities.

The Minister of Women and Children’s Affairs, Hajia Alima Mahama, recognised this, speaking the day after the Bill was passed: "There is a lot of work ahead. We have already put a trigger in the Mulit Donor Budgetary Support Programme of Action Framework, that will be developing a Comprehensive Plan of Action to implement the Domestic Violence Law.

"This will include a programme of sensitisation across the length and breadth of this country, support to enforcement agencies and institution working on counselling, rehabilitation and re-integration through capacity building and making available logistics and facilities to give meaning to the law."

Ms Bame reinforced the need for the subject to be dealt with amongst communities in an inclusive manner that would pit men against women, commenting that the Bill "seeks to protect all Ghanaians, not just women and children", a sentiment which echoed the Minister’s statement that: "This law is not for the benefit of only women and our children, it is applicable to all men and women, and both sexes have to take advantage of it."

However, the public controversy over the specific issue of marital rape suggests that this issue will prove more difficult to 'educate’ people on than other forms of domestic abuse, and the lack of clarity with regards to the legal position will undermine efforts to encourage victims of marital rape to speak up.