Macberth Gua was charged with the rape of his estranged wife of ten years. The victim had not filed any divorce proceedings and there was no formal separation. The defendant dragged the victim into his vehicle under the threat of violence and drove her to a remote location where he forced himself on her. The defendant’s defense relied upon the antiquated common law maxim that a husband could not be liable for involuntary sexual intercourse with his wife (the “marital rape exception”), as her agreement to wed constituted an irrevocable consent to marital relations. Moreover, Section 136 of the Penal Code of the Solomon Islands provides an excessively narrow definition of rape: “Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband, is guilty of the felony termed rape.” The question before the High Court was whether a husband could be held criminally liable for raping his wife. The answer provided by the High Court was in the affirmative, which ruled that marriage is now regarded as a partnership of equals, and that this principle of equality has been reflected not only in international conventions to which the Solomon Islands is a party, but is also entrenched in the provisions of the Constitution. In its rationale, the High Court noted that one of the international conventions to which the Solomon Islands is a party is CEDAW, which, in Article 15, calls on all State parties to accord women equality with men before the law and, in Article 16, calls for the same personal rights between husband and wife. As for the Constitution, Sections 3 and 15 of the Constitution guarantee women equal rights and freedoms as men and afford them protection against all forms of discrimination, including discrimination on the ground of sex. The High Court thus held that the rule exempting husbands from liability for rape on their wives is no longer applicable, that it is no longer supported by common law, and that it is offensive to modern standards and principles of equality found in international conventions and the Constitution. Notwithstanding the foregoing, unfortunately in the sentencing decision following Regina v. Gua, the sentencing judge stated that “this is a case which has occurred as a result of domestic problems between a husband and his wife. It is not an offence that has been committed to gratify one’s own sexual desires. There is an underlying cause for the commission of the offence – the termination by the victim of her marriage to the accused. Hence, the accused is not solely to be blamed for this incident. The complainant must also share the blame.”
Women and Justice: Jurisdiction
A victim was forced into a drain and sexually assaulted by assailant. The court relied on the Penal Code and case law for the law establishing that force is not a necessary element of rape, but it can be evidence of lack of consent. Rape is "unlawful sexual intercourse with a woman or girl, without her consent, or with consent if that consent is obtained by force or threats or intimidation of any kind." The defendant was found guilty.