R v Bush

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 19 April 2005
• Court: Grand Court (Cayman Islands)
• Date: 19 April 2005

Grand Court

(Henderson, J.)

R.

and

BUSH

A. Roberts, Senior Crown Counsel, for the Crown;

J. Austin-Smith for the defendant.

Case cited:

(1) R. v. R, [1992] 1 A.C. 599; [1991] 4 All E.R. 481, applied.

Legislation construed:

Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.125 (as substituted by the Penal Code (Amendment) Law 1998, s.28): The relevant terms of this section are set out at para. 11.

s.130(1): The relevant terms of this sub-section are set out at para. 15.

s.130(1) (as substituted by the Penal Code (Amendment) Law 1998, s.29): The relevant terms of this sub-section are set out at para. 15.

s.132(1): The relevant terms of this sub-section are set out at para. 9.

Criminal Law-rape-husband and wife-husband may be convicted of raping wife-phrasing and intent of Penal Code, s.125, as substituted in 1998, permits conviction if no consent-use of ‘unlawful’ to describe sexual intercourse without consent mere surplusage

Criminal Law-indecent assault-husband and wife-husband may be convicted of indecently assaulting wife-Penal Code, s.130(1), as substituted in 1998, permits conviction if no consent-omission of ‘unlawfully’ to describe assault intended to remove surplusage

The accused made a submission of no case to answer in relation to charges of attempted rape and indecent assault.

The accused was indicted on three counts, including one of attempted rape and one of indecent assault, arising from a single incident in which it was alleged that he sexually assaulted his wife. At the time of the alleged offences the parties were living apart and divorce proceedings had been commenced.

The defendant submitted that (a) he could not be convicted on these two counts, as the traditional common law view, that a husband cannot rape his wife, was still the law in the Cayman Islands; (b) the retention of the word ‘unlawful’ in the new version of the Penal Code, s.125, as substituted in 1998, in relation to rape (‘has unlawful sexual intercourse . . .’) affirmed the applicability of the traditional common law view; and (c) the absence of the word ‘unlawfully’ in the new version of the Penal Code, s.130(1), as substituted in 1998, in relation to indecent assault, had no effect on the traditional common law view that a husband cannot indecently assault his wife, which still applied.

Held, dismissing the submission of no case to answer:

The definition of ‘rape’ in the Penal Code, s.125 did not exclude the possibility that a husband may rape his wife because it provided that the offence could be committed by ‘unlawful sexual intercourse . . . with another person who . . . did not consent to it.’ The word ‘unlawful,’ reproduced in the definition substituted in 1998, was mere surplusage. Judicial notice should be taken of the evolution of the social conditions and mores of the Cayman Islands, by which the status of a married woman had changed from being one of subservience to her husband to

one of a partnership of equals, and it was therefore proper to accept that she did not implicitly and automatically consent to sexual intercourse with him. A husband could therefore be found guilty of raping his wife and by the same reasoning guilty of indecently assaulting her...