Letsholathebe vs the State : towards the abolition of spousal exemption in Botswana?

Abstract

Although many countries do not have laws against marital rape, there is an international movement led by feminist pressure groups that is assiduously and steadily gaining credence in advancing the view that the doctrine of marital exemption is unjust and has no place in a modern society. In response to this surging movement, numerous states around the world have taken legislative and judicial initiatives aimed at the abolition of marital immunity. The present article presents a critical analysis of the Botswana case of Letsholathebe v The State, where Kirby J stated that the doctrine of marital exemption is offensive to modern thinking as it no longer represents the position of the wife in latter-day society and that it needs to be abolished. This article shares Justice Kirby's sentiments that the doctrine of spousal exemption is anachronistic but argues that the legislature must lead the way ahead of courts in abolishing it to avoid the problem of retroactive application of criminal law. The central claim of this article is that the marital exemption doctrine is an antiquated legal doctrine that sits ill with all notions of human dignity and liberties of women. The article finally proffers suggestions on how Botswana should go about in achieving this desideratum.