A Postcolonial Theory of Spousal Rape: The Caribbean and Beyond

Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the common law spousal rape exemption. While much has been written on the topic of spousal rape in common law jurisdictions, this Article is unique in at least three respects. First, this Article uses postcolonial theory to provide a theoretical framework for critiquing the colonial roots of the modern-day spousal rape exemption in Commonwealth Countries. Second, this Article posits that postcolonial theory offers many insights regarding the history of colonialism and modern-day power dynamics and identities in Commonwealth Countries. The Article uses postcolonial theory to advocate for a norms-based approach to changing the structures that perpetuate inequality, and goes on to suggest the need for changes to negative norms regarding the role of women in marriage, with the aim of creating national and individual identities that value compliance with modern human rights norms. The Article recommends legal, social, legislative, and judicial internalization of human rights norms. While these solutions are not new, the Article uses postcolonial theory to assess which solution may be more viable, as well as to determine the best way to implement internalization of human rights norms given the colonial heritage and politics of postcolonial Commonwealth Countries. Third, this Article is part of a larger project that seeks to trace the connections be-tween colonial history and contemporary law in postcolonial states with the aim of developing a typology of the enduring effects of colonial laws and norms