Ghana: Report: "Permission for Domestic Violence: Marital Rape in Ghanaian Marriages"

"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 Arguments that this provision essentially repealed article 42(g) are not persuasive because of (i) drafting changes in the bill; (ii) criminal classifications within the DV Act and the Criminal Code; and (iii)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."

By: Nancy Kaymar Stafford
Emory University Law School