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Sexual & Gender Based Violence

SOLOMON ISLANDS: High Court decisions - removal of marital rape exemption; consideration of relevant factors in sentencing

A 2012 decision of the Solomon Islands High Court held the common law principle of marital exemption in rape was no longer part of the law of Solomon Islands.

In R v Gua [2012] SBHC 118 (here) the victim and the accused were legally married at the time of the alleged rape. One of the grounds submitted by counsel for the accused was based on the old common law principle that a man could not be guilty of raping his wife. Justice Apaniai expressly rejected this submission, stating that the marital exemption rule was no longer applicable nor appropriate in the circumstances of the Solomon Islands. Justice Apaniai referred to changing attitudes in relation to the status of women, Solomon Islands’ obligations under the Convention on Elimination of all forms of Discrimination Against Women (CEDAW), rights afforded in the Constitution, and more recent domestic case law in relation to offences against women. Justice Apaniai made it clear that this was not the creation of a new offence against husbands. Quoting a 1991 House of Lords decision overturning the marital exemption rule, Justice Apaniai said it was rather the removal of a ‘common law fiction, which has become anachronistic and offensive’. The defendant was subsequently sentenced to a term of imprisonment of four years for the offence of rape.

In early 2013, the Director of Public Prosecutions appealed against this sentence, on the basis that it was manifestly inadequate. In R v Gua [2013] SBCA 2 (here), the Solomon Islands Court of Appeal allowed the appeal and substituted a sentence of 7 years imprisonment.

The Court disagreed with the sentencing Judge’s approach to mitigation and finding that there were few aggravating factors. The Court highlighted with particular concern the sentencing Judge’s remarks regarding the ‘underlying cause’ for the offence. Justice Apaniai had described the victim’s termination of her marriage to the accused as the ‘underlying cause’ and that she must also share the blame for the incident; and indicated that he was constrained to take this into account in sentencing (see paragraph 14 of R v Gua [2012] SBHC 137). The Court of Appeal disagreed with the sentencing judge’s conclusion that the complainant must also share the blame, rejecting the proposition that the circumstances of their relationship amounted to an acceptable reason to inflict violence. The Court set out views expressed in New Zealand and in England and Wales, which emphasised that it was no longer the case that a husband had residual rights over his wife, and responsibility for such offences must not be turned onto the victim.

In June 2013, the Solomon Islands Law Reform Commission released the Review of the Penal Code and Criminal Procedure Code Second Interim Report – Sexual Offences (here). One of the recommendations set out in the report is that new legislation should clearly state that a husband can be convicted of rape of his wife – that is, a new offence of rape should be drafted so its clear it applies to all people, even where there is a marriage relationship between the victim and the accused.