|Sex and the law|
(May vary according to jurisdiction)
Marital rape, also known as spousal rape and rape in marriage, is non-consensual sex in which the perpetrator is the victim's spouse. It is a form of partner rape, of domestic violence, and of sexual abuse. It can be equally, or even more, emotionally and physically damaging than rape by a stranger.
Once widely condoned or ignored by law, spousal rape is now repudiated by international conventions and increasingly criminalized. Still, in many countries, spousal rape either remains legal, or is illegal but widely tolerated, with the laws against it being rarely enforced. Traditional views on marriage which dictate that a woman must be (sexually) submissive to her husband continue to be common in many parts of the world.
Traditional understanding and views of marriage, rape, sexuality, gender roles and self determination have started to be challenged in most Western countries during the 1960s and 1970s, which has led to the subsequent criminalization of marital rape during the following decades. With a few notable exceptions, it was during the past 30 years when most laws against marital rape have been enacted. Several countries in Eastern Europe and Scandinavia made spousal rape illegal before 1970, but other countries in Western Europe and the English-speaking Western World outlawed it much later, mostly in the 1980s and 1990s. Most developing countries outlawed it in the 1990s and 2000s. In many countries it remains unclear whether marital rape is covered by ordinary rape laws.
The original justifications for the legality of marital rape were simply the result of the way marriage was understood historically in most cultures (legally requiring a wife to obey her husband, allowing a husband to punish his wife if she did not perform her duties etc.). However, long after these views were no longer considered valid in Western countries, the lawmakers have continued to be reluctant to intervene on the issue of rape in marriage, based on the idea that it was undesirable to interfere with the 'privacy' of a married couple and that marriage as an institution had to be 'protected' from outside intervention.
- 1 Historical context
- 2 Physical and psychological damage
- 3 In the context of forced and child marriage
- 4 Relation to other forms of marital violence
- 5 Legal aspect
- 5.1 Formalization of the marital rape exemption in law
- 5.2 Feminist critique in the 19th century
- 5.3 20th and 21st century criminalization
- 5.4 Marriage after rape
- 6 Prevalence
- 7 Sustaining factors
- 8 Problems in prosecuting spousal rape
- 9 Countries where spousal rape is a criminal offence
- 10 Countries where spousal rape is not a criminal offence
- 11 See also
- 12 References
- 13 Footnotes
- 14 External links
The concept of a marital exemption, that is, a legal framework, or, perhaps even more importantly, a social view, stating that a husband cannot be charged with the rape of his wife, must be understood in the historical context of marriage, rape, and of women's position in society. The U.S. and English law subscribed until the 20th century to the system of coverture, that is, a legal doctrine under which, upon marriage, a woman's legal rights were subsumed by those of her husband.
Marriage was understood as an institution where a husband had control over his wife's life; control over her sexuality was only a part of the greater control that he had in all other areas concerning her. A husband's control over his wife's body could also be seen in the way adultery between a wife and another man was constructed; for example in 1707, English Lord Chief Justice John Holt described the act of a man having sexual relations with another man's wife as "the highest invasion of property". For this reason, in many cultures there was a conflation between the crimes of rape and adultery, since both were seen and understood as a violation of the rights of the husband. Rape as a crime was constructed as a property crime against a father or husband not as a crime against the woman's right to self-determination.
Most of the Western World has been strongly influenced by Christianity. The Christian religion teaches that sexual relations before marriage ('fornication') as well as sexual relations by a married person with someone other than their spouse ('adultery') are sins, while sex within marriage is a duty. This concept of 'conjugal sexual rights' has the purpose to prevent sin (in the form of adultery and temptation) as well as to enable procreation. The Bible at 1 Corinthians 7:3-5 states that:
- "The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control.".
Recognition of conjugal rights
Under African customary law forced sex in marriage was not in general prohibited, although some specific circumstances, such as during advanced pregnancy, immediately after childbirth, during menstruation, or during mourning for a deceased close relative, were recognized as giving the wife the right to refuse sex. The importation of English common law to this area through colonialism reinforced the immunity of the husband for the rape of his wife. Although in recent years some countries in Africa have enacted laws against marital rape, in most parts of the continent forced marital sex is not a criminal offense. A 2003 report by Human Rights Watch stated that: "With few exceptions across Africa, marital rape is not recognized as a crime, and domestic violence is seen as a right of married men."  The acceptability of domestic violence in most African countries is very high: surveys showed that the percentage of women aged 15–49 who think that a husband is justified in hitting or beating his wife under certain circumstances is, for example, 87% in Mali, 86% in Guinea, 80% in Central African Republic, 79% in South Sudan. Although more countries in Africa are now enacting laws against domestic violence, social norms make it difficult to enforce these laws; and many women are not aware of their rights: for instance in Ethiopia in a survey only 49% of women knew that wife-beating is illegal (it was made illegal under the 2004 Criminal Code). The lack of legal and social recognition of marital rape in Africa has been cited as making the fight against HIV harder.
Physical and psychological damage
Rape by a spouse, partner or ex-partner is more often associated with physical violence. A nine-nation study within the European Union found that current or ex-partners were the perpetrators of around 25% of all sexual assaults, and that violence was more common in assaults by ex-partners (50% of the time) and partners (40%) than in assaults by strangers or recent acquaintances (25%).
Attributing the effects of marital rape in research is problematic as it is nearly impossible to find a large enough sample of spouses to study who have experienced sexual violence but have not also been physically assaulted by their spouse.
While rape by a stranger is highly traumatic, it is typically a one-time event and is clearly understood as rape. In the case of rape by a spouse or long term sexual partner, the history of the relationship affects the victim’s reactions. There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger. Marital rape may occur as part of an abusive relationship. Trauma from the rape adds to the effect of other abusive acts or abusive and demeaning talk. Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence. Whether it takes place once or is part of an established pattern of domestic violence, trauma from rape has serious long term consequences for victims regardless of whether the assault is prosecuted or not.
Unlike in other forms of rape, where the victim can remove herself from the company of the rapist and never interact with him again, in the case of marital rape the victim often has no choice but to continue living with her husband: in many parts of the world divorce is very difficult to obtain and is also highly stigmatized. The Abuse Counseling and Treatment, Inc. (ACT) (a Florida private, nonprofit agency that serves victims of domestic violence, sexual assault and human trafficking) stated that:
- "When a woman is raped by a stranger, she has to live with a frightening memory. When she is raped by her husband, she has to live with the rapist".
In the context of forced and child marriage
Forced marriage and child marriage are prevalent in many parts of the world, especially is parts of Asia and Africa. A forced marriage is a marriage where one or both participants are married without their freely given consent; while a child marriage is a marriage where one or both parties are younger than 18. These types of marriages are associated with a higher rate of domestic violence, including marital rape. These forms of marriage are most common in traditional societies which have no laws against sexual violence in marriage, and where it is also very difficult to leave a marriage. Incidents taking place in some of these countries (such as Yemen) have received international attention.
Relation to other forms of marital violence
The historical (and present day in jurisdictions where it still applies) immunity of husbands for the rape of their wives was not the only marital immunity in regard to abuse; immunity from general violence was (and still is in some places) common - in the form of a husband's right to use "moderate chastisement" against a 'disobedient' wife. In the US, many states, especially Southern ones, maintained this immunity until the mid-19th century. For instance, in 1824, in Calvin Bradley v. the State, the Mississippi Supreme Court uphold this right of the husband; ruling as follows:
- "Family broils and dissentions cannot be investigated before the tribunals of the country, without casting a shade over the character of those who are unfortunately engaged in the controversy. To screen from public reproach those who may be thus unhappily situated, let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned."
Although by the late 19th century courts were unanimously agreeing that husbands no longer had the right to inflict "chastisement" on their wives, the public policy was set at ignoring incidents deemed not 'serious enough' for legal intervention. In 1874, the Supreme Court of North Carolina ruled:
- "We may assume that the old doctrine, that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the Courts have advanced from that barbarism until they have reached the position, that the husband has no right to chastise his wife, under any circumstances.
- But from motives of public policy,--in order to preserve the sanctity of the domestic circle, the Courts will not listen to trivial complaints.
- If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.
- No general rule can be applied, but each case must depend upon the circumstances surrounding it."
Today, husbands continue to be immune from prosecution in case of certain forms of physical abuse against their wives in some countries. For instance, in Iraq husbands have a legal right to "punish" their wives. The criminal code states that there is no crime if an act is committed while exercising a legal right. Examples of legal rights include: "The punishment of a wife by her husband, the disciplining by parents and teachers of children under their authority within certain limits prescribed by law or by custom". In 2010, the United Arab Emirates's Supreme Court ruled that a man has the right to physically discipline his wife and children as long as he does not leave physical marks.
Historically, many cultures have had a concept of spouses' conjugal rights to sexual intercourse with each other. This can be seen in Common law, in force in North America and the British Commonwealth, where the very concept of marital rape was treated as an impossibility. This was illustrated most vividly by Sir Matthew Hale, in his 1736 legal treatise Historia Placitorum Coronæ or History of the Pleas of the Crown, where he wrote that such a rape could not be recognized since the wife "hath given up herself in this kind unto her husband, which she cannot retract."
Formalization of the marital rape exemption in law
Common law and the United Kingdom
Hale's statement in History of the Pleas of the Crown was not supported by any judicial authority but was believed to be a logical consequence of the laws of marriage and rape as understood at the time. Marriage gave conjugal rights to a spouse, and marriage could not be revoked except by private Act of Parliament—it therefore seemed to follow that a spouse could not legally revoke consent to sexual intercourse, and if there was consent there was no rape.
The principle was repeated in East's Treatise of the Pleas of the Crown in 1803 and in Archbold’s Pleading and Evidence in Criminal Cases in 1822, but it was not until R v Clarence that the question of the exemption first arose in an English courtroom. Clarence was determined on a different point, and there was no clear agreement between the nine judges regarding the status of the rule.
Feminist critique in the 19th century
From the beginnings of the 19th century women's movement, activists challenged the presumed right of men to engage in forced or coerced sex with their wives. In the United States, "the nineteenth-century woman's rights movement fought against a husband's right to control marital intercourse in a campaign that was remarkably developed, prolific, and insistent, given nineteenth-century taboos against the public mention of sex or sexuality." Suffragists including Elizabeth Cady Stanton and Lucy Stone "singled out a woman's right to control marital intercourse as the core component of equality."
Nineteenth century feminist demands centered on the right of women to control their bodies and fertility, positioned consent in marital sexual relations as an alternative to contraception and abortion (which many opposed), and also embraced eugenic concerns about excessive procreation. British liberal feminists John Stuart Mill and Harriet Taylor attacked marital rape as a gross double-standard in law and as central to the subordination of women.
Advocates of free love, including early anarcha-feminists such as Voltairine de Cleyre and Emma Goldman, as well as Victoria Woodhull, Thomas Low Nichols, and Mary S. Gove Nichols, joined a critique of marital rape to advocacy of women's autonomy and sexual pleasure. Moses Harman, a Kansas-based publisher and advocate for women's rights, was jailed twice under the Comstock laws for publishing articles (by a woman who was victimized and a doctor who treated marital rape survivors) decrying marital rape. De Cleyre defended Harman in a well-known article, "Sexual Slavery." She refused to draw any distinction between rape outside of, and within marriage: "And that is rape, where a man forces himself sexually upon a woman whether he is licensed by the marriage law to do it or not."
Bertrand Russell in his book Marriage and Morals deplored the situation of married women, he wrote "Marriage is for woman the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution."
20th and 21st century criminalization
As the concept of human rights has developed, the belief of a marital right to sexual intercourse has become less widely held. Feminists worked systematically since the 1960s to overturn the marital rape exemption and criminalize marital rape. Increasing criminalization of spousal rape is part of a worldwide reclassification of sexual crimes "from offenses against morality, the family, good customs, honor, or chastity ... to offenses against liberty, self-determination, or physical integrity." In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women. This establishes marital rape as a human rights violation.
Despite these trends and international moves, criminalization has not occurred in all UN member States. Determining the criminal status of marital rape may be challenging, because, while some countries explicitly criminalize the act (by stipulating in their rape laws that marriage is not a defense to a charge of rape; or by creating a specific crime of 'marital rape'; or, otherwise, by having statutory provisions that expressly state that a spouse can be charged with the rape of their other spouse) and other countries explicitly exempt spouses (by defining rape as forced sexual intercourse outside of marriage; or forced sexual intercourse with a woman not the perpetrator's wife; or by providing in their rape provisions that marriage is a defense to a charge of rape ), in many countries the ordinary rape laws are silent on the issue (that is, they do not address the issue one way or another), and it remains unclear whether marital rape can be prosecuted under the ordinary rape laws (these countries depend on case law and judicial precedents).
In 2006, the UN Secretary-General's In-depth study on all forms of violence against women stated that (page 113):
- "Marital rape may be prosecuted in at least 104 States. Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 do not exempt marital rape from general rape provisions. Marital rape is not a prosecutable offence in at least 53 States. Four States criminalize marital rape only when the spouses are judicially separated. Four States are considering legislation that would allow marital rape to be prosecuted."
- "By April 2011, at least 52 States had explicitly outlawed marital rape in their criminal code".
Traditionally, rape was a criminal offense that could only be committed outside marriage, and courts did not apply the rape statutes to acts of forced sex between spouses. With changing social views, and international condemnation of sexual violence in marriage, courts have started to apply the rape laws in marriage. The current applicability in many countries of rape laws to spouses is currently unclear, since in many countries the laws have not been recently tested in court. In some countries, notably jurisdictions which have inherited the 1860 Indian Penal Code (such as Singapore, India, Bangladesh, Sri Lanka, Burma) and some countries in the Commonwealth Caribbean region, the laws explicitly exempt spouses from prosecution (for instance, under the 1860 Indian Penal Code, which has also been inherited by other countries in the region, the law on rape states that "Sexual intercourse by a man with his own wife is not rape").
An example of country where the rape law explicitly excludes a husband as a possible perpetrator is Ethiopia; its rape law states: "Article 620 - Rape: Whoever compels a woman to submit to sexual intercourse outside wedlock, whether by the use of violence or grave intimidation, or after having rendered her unconscious or incapable of resistance, is punishable with rigorous imprisonment from five years to fifteen years". Another example is South Sudan, where the law states: "Sexual intercourse by a married couple is not rape, within the meaning of this section". (Art 247). Conversly, an example of country where the rape law explicitly criminalizes marital rape is Namibia - The Combating of Rape Act (No. 8 of 2000) states that: "No marriage or other relationship shall constitute a defence to a charge of rape under this Act".
By 1986, in Europe, there was international pressure to criminalize marital rape: the European Parliament's Resolution on Violence Against Women of 1986 called for its criminalization.
Countries which were early to criminalize marital rape include the Soviet Union (1922/1960), Poland (1932), Czechoslovakia (1950), some other members of the Communist Bloc, Denmark (1960), Sweden (1965), and Norway (1971). Slovenia, then a republic within federal Yugoslavia, criminalized marital rape in 1977. The Israeli Supreme Court affirmed that marital rape is a crime in a 1980 decision, citing law based on the Talmud (at least 6th century). Criminalization in Australia began with the state of New South Wales in 1981, followed by all other states from 1985 to 1992. Several formerly British-ruled countries followed suit: Canada (1983), New Zealand (1985), and Ireland (1990).
Marital rape was criminalized in Austria in 1989 (and in 2004 it became a state offense meaning it can be prosecuted by the state even in the absence of a complaint from the spouse, with procedures being similar to stranger rape). In Switzerland marital rape became a crime in 1992 (and became a state offense in 2004). In Spain, the Supreme Court ruled in 1992 that sex within marriage must be consensual and that sexuality in marriage must be understood in light of the principle of the freedom to make one's own decisions with respect to sexual activity; in doing so it upheld the conviction of a man who had been found guilty of raping his wife by a lower court.
An interesting case in Europe is that of Finland: the country outlawed marital rape only in 1994, after years of debates. The case of domestic violence in Finland has been the subject of much international interest and discussion, because Finland is otherwise considered a country where women have very advanced rights in regard to public life and participation in the public sphere (jobs, opportunities, etc.). The country has been made the object of international criticism in regard to its approach towards violence against women. A 2010 Eurobarometer survey on European attitudes on violence against women showed that victim blaming attitudes are much more common in Finland than in other countries: 74% of Finns blamed "the provocative behaviour of women" for violence against women, much higher than in other countries (for instance many countries that are popularly believed to be among the most patriarchal of Europe were significantly less likely to agree with that assertion: only 33% in Spain, 46% in Ireland, 47% in Italy).
Belgium has been early to criminalize marital rape. In 1979, the Brussels Court of Appeal recognized marital rape and found that a husband who used serious violence to coerce his wife into having sex against her wishes was guilty of the criminal offense of rape. The logic of the court was that, although the husband did have a 'right' to sex with his wife, he could not use violence to claim it, as Belgian laws did not allow people to obtain their rights by violence. In 1989 laws were amended, the definition of rape was broadened, and marital rape is treated the same as other forms of rape.
In France, in 1990, following a case where a man had tortured and raped his wife, the Cour de Cassation authorized prosecution of spouses for rape or sexual assault. In 1992 Cour de Cassation convicted a man of the rape of his wife, stating that the presumption that spouses have consented to sexual acts that occur within marriage is only valid unless the contrary is proven. In 1994, Law 94-89 criminalized marital rape; a second law, passed 4 April 2006, makes rape by a partner (including in unmarried couples, married couples, and in civil unions) an aggravating circumstance in prosecuting rape.
Germany outlawed spousal rape only in 1997, which is later than other developed countries. Female ministers and women's rights activists lobbied for this law for over 25 years. Before, marital rape could only be prosecuted as "Causing bodily harm" (Section 223 of the German Criminal Code), Insult (Section 185 of the German Criminal Code) and "Using threats or force to cause a person to do, suffer or omit an act" (Nötigung, Section 240 of the German Criminal Code) which carried lower sentences  and were rarely prosecuted.
Greece enacted in 2006 Law 3500/2006, entitled "For combating domestic violence", which entered into force on 24 October 2006 and which punishes marital rape. This legislation also prohibits numerous other forms of violence within marriage and cohabiting relations, and various other forms of abuse of women.
Thailand outlawed marital rape in 2007. The new reforms were enacted amid strong controversy and were opposed by many. One opponent of the law was legal scholar Taweekiet Meenakanit who voiced his opposition to the legal reforms. He also opposed the making of rape a gender neutral offense. Meenakanit claimed that allowing a husband to file a rape charge against his wife is "abnormal logic" and that wives would refuse to divorce or put their husband in jail since many Thai wives are dependent on their husbands.
The Section 375 of the Indian Penal Code (IPC) considers the forced sex in marriages as a crime only when the wife is below 15. Thus, marital rape is not a criminal offense under IPC. The marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA). The PWDVA, which came into force in 2006, outlaws marital rape. However, it offers only a civil remedy for the offence.
Recent countries to criminalize marital rape include Zimbabwe (2001), Turkey (2005), Cambodia (2005), Liberia (2006), Nepal (2006), Mauritius (2007), Ghana (2007), Malaysia (2007), Thailand (2007), Rwanda (2009), Suriname (2009), Sierra Leone (2012), South Korea (2013), Bolivia (2013), Samoa (2013). Human rights observers have criticized a variety of countries for failing to effectively prosecute marital rape once it has been criminalized. South Africa, which criminalized in 1993, saw its first conviction for marital rape in 2012.
The legal history of marital rape laws in the United States is a long and complex one, that spans over several decades. Traditional rape laws in the US defined rape as forced sexual intercourse by a male with a "female not his wife", making it clear that the statutes did not apply to married couples. The 1962 Model Penal Code stated that "A male who has sexual intercourse with a female not his wife is guilty of rape if: (...)".
The criminalization of marital rape in the United States started in the mid-1970s and by 1993 marital rape became a crime in all 50 states, under at least one section of the sexual offense codes. Nevertheless, in most states there were significant differences between the way marital rape and other forms of rape were treated. Only in 17 states were marital rape and other forms of rape treated the same. In the other states there were various differences, such as shorter penalties, or excluding situations where no violence is used, or shorter reporting periods. (Bergen, 1996; Russell, 1990). The laws have continued to change through the 1990s and 2000s, in order to bring marital rape laws in line with non-marital rape, but even today there remain differences in some states. With the removal, in 2005, of the requirement of a higher level of violence from the law of Tennessee, which now allows for marital rape in Tennessee to be treated like any other type of rape, South Carolina remains the only US state with a law requiring excessive force/violence (the force or violence used or threatened must be of a "high and aggravated nature"). For more details, see Marital rape (United States law).
England and Wales
Although the issue of marital rape was highlighted by feminists in the 19th century; and deplored by thinkers such as John Stuart Mill and Bertrand Russell (see above section 'Feminist critique in the 19th century') it was not until the 1970s that this issue was raised at a political level. The late 1970s also saw the enactment of Sexual Offences (Amendment) Act 1976, which provided the first statutory definition of rape (prior to this rape was an offense at common law). The Criminal Law Revision Committee in their 1984 Report on Sexual Offences rejected the idea that the offense of rape should be extended to marital relations; writing the following:
- "The majority of us ... believe that rape cannot be considered in the abstract as merely 'sexual intercourse without consent'. The circumstances of rape may be peculiarly grave. This feature is not present in the case of a husband and wife cohabiting with each other when an act of sexual intercourse occurs without the wife's consent. They may well have had sexual intercourse regularly before the act in question and, because a sexual relationship may involve a degree of compromise, she may sometimes have agreed only with some reluctance to such intercourse. Should he go further and force her to have sexual intercourse without her consent, this may evidence a failure of the marital relationship. But it is far from being the 'unique' and 'grave' offence described earlier. Where the husband goes so far as to cause injury, there are available a number of offences against the person with which he may be charged, but the gravamen of the husband's conduct is the injury he has caused not the sexual intercourse he has forced."
The Committee also expressed more general views on domestic violence arguing that "Violence occurs in some marriages but the wives do not always wish the marital tie to be severed" and reiterated the point that domestic incidents without physical injury would generally be outside the scope of the law: "Some of us consider that the criminal law should keep out of marital relationships between cohabiting partners - especially the marriage bed - except where injury arises, when there are other offences which can be charged."
Five years later, in Scotland, the High Court of Justiciary took a different view, abolishing the marital immunity, in S. v. H.M. Advocate, 1989. The same would happen in England and Wales in 1991, in R v R (see below). Very soon after this, in Australia, at the end of 1991, in R v L, the High Court of Australia would rule the same, ruling that if the common law exemption had ever been part of the Australian law, it no longer was (by that time most Australian states and territories had already abolished their exemptions by statutory law).
Ending the exemption
The marital rape exemption was abolished in England and Wales in 1991 by the Appellate Committee of the House of Lords, in the case of R v R been promulgated in 1736 in Matthew Hale’s History of the Pleas of the Crown (see above).
The first attempted prosecution of a husband for the rape of his wife was R v Clarke. Rather than try to argue directly against Hale’s logic, the court held that consent in this instance had been revoked by an order of the court for non-cohabitation. It was the first of a number of cases in which the courts found reasons not to apply the exemption, notably R v O’Brien (the obtaining of decree nisi), R v Steele (an undertaking by the husband to the court not to molest the wife) and R v Roberts (the existence of a formal separation agreement).
There are at least four recorded instances of a husband successfully relying on the exemption in England and Wales. The first was R v Miller, where it was held that the wife had not legally revoked her consent despite having presented a divorce petition. R v Kowalski was followed by R v Sharples, and the fourth occurred in 1991 in the case of R v J, a judgment made after the first instance decision of the Crown Court in R v R but before the decision of the House of Lords that was to abolish the exemption. In Miller, Kowalski and R v J the husbands were instead convicted of assault. The R v Kowalski case involved, among other acts, an instance of non-consensual oral sex. For this, the husband was convicted of indecent assault, as the court ruled that his wife's "implied consent" by virtue of marriage extended only to vaginal intercourse, not to other acts such as fellatio. [At that time the offense of 'rape' dealt only with vaginal intercourse]
In R v Sharples in 1990, it was alleged that the husband had raped his wife in 1989. Despite the fact that the wife had obtained a Family Protection Order before the alleged rape, the judge refused to accept that rape could legally occur, concluding that the Family Protection Order had not removed the wife's implied consent; ruling that: "it cannot be inferred that by obtaining the order in these terms the wife had withdrawn her consent to sexual intercourse".
R v R in 1991 was the first occasion where the marital rights exemption had been appealed as far as the House of Lords, and it followed the trio of cases since 1988 where the marital rights exemption was upheld. The leading judgment, unanimously approved, was given by Lord Keith of Kinkel. He stated that the contortions being performed in the lower courts in order to avoid applying the marital rights exemption were indicative of the absurdity of the rule, and held, agreeing with earlier judgments in Scotland and in the Court of Appeal in R v R, that “the fiction of implied consent has no useful purpose to serve today in the law of rape” and that the marital rights exemption was a “common law fiction” which had never been a true rule of English law. R’s appeal was accordingly dismissed, and he was convicted of the rape of his wife.
By 1991, when the exemption was removed, the Law Commission in its Working Paper of 1990 was already supporting the abolition of the exemption, a view reiterated in their Final Report that was published in 1992; and international moves in this direction were by now common. Therefore the result of the R v R case was welcomed. But, while the removal of the exemption itself was not controversial, the way through which this was done was; since the change was not made through usual statutory modification. The cases of SW v UK and CR v UK arose in response to R v R; in which the applicants (convicted of rape and attempted rape of the wives) appealed to the European Court of Human Rights arguing that their convictions were a retrospective application of the law in breach of Article 7 of the European Convention on Human Rights. They claimed that at the time of the rape there was a common law exemption in force, therefore their convictions were post facto. Their case was not successful, with their arguments being rejected by the European Court of Human Rights, which ruled that the criminalization of marital rape had become a reasonably foreseeable development of the criminal law in the light of the evolution of social norms; and that the Article 7 does not prohibit the gradual judicial evolution of the interpretation of an offense, provided the result is consistent with the essence of the offense and that it could be reasonably foreseen.
A new definition of the offense of 'rape' was created in 1994 by the section 142 of the Criminal Justice and Public Order Act 1994, providing a broader definition that included anal sex; and an even broader definition was created by the Sexual Offences Act 2003, including oral sex. The law on rape does not - and did not ever since the removal of the marital exemption in 1991 - provide for any different punishment based on the relation between parties. However, in 1993, in R v W 1993 14 Cr App R (S) 256, the court ruled: "It should not be thought a different and lower scale automatically attaches to the rape of a wife by her husband. All will depend upon the circumstances of the case. Where the parties are cohabiting and the husband insisted upon intercourse against his wife's will but without violence or threats this may reduce sentence. Where the conduct is gross and involves threats or violence the relationship will be of little significance."
The criminalization of marital rape in Australia occurred in all states and territories, by both statutory and case law, from the late 1970s to the early 1990s. In Australia, the offense of rape was based on the English common law offense of rape, being generally understood as "carnal knowledge", outside of marriage, of a female against her will. Some Australian states left rape to be defined at common law, but others had statutory definitions, with these definitions having marital exemptions. The definition of rape in Queensland, for instance, was: "Any person who has carnal knowledge of a woman or girl, not his wife, without her consent, or with her consent, if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape." Discussions of criminalization of marital rape were already taking place in the late 1970s in Queensland, but it was only in 1989 that this happened in that state.
The first Australian state to deal with marital rape was South Australia. The changes came in 1976, but these were only partly removing the exemption. The Criminal Law Consolidation Act Amendment Act 1976 read: "No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person". Nevertheless, the laws did not go as far as equating marital with non-marital rape; the law required violence, or other aggravating circumstances, in order for an act of marital intercourse to be rape; which remained law until 1992. The first Australian jurisdiction to completely remove the marital exemption was New South Wales in 1981. The same happened in Western Australia, Victoria, and ACT in 1985; and Tasmania in 1987. In 1991, in R v L, the High Court of Australia ruled that if the common law exemption had ever been part of the Australian law, it no longer was.
Marriage after rape
In a variety of cultures, marriage after the fact has been treated historically as a "resolution" to the rape of an unmarried woman. Citing Biblical injunctions (particularly Exodus 22:16–17 and Deuteronomy 22:25–30), Calvinist Geneva permitted a single woman's father to consent to her marriage to her rapist, after which the husband would have no right to divorce; the woman had no explicitly stated separate right to refuse. Among ancient cultures virginity was highly prized, and a woman who had been raped had little chance of marrying. These laws forced the rapist to provide for their victim.
Criminal prosecution for rape ends in the event of marriage in Algeria, Lebanon (both as of 2010[update]), Jordan (as of 2009[update]), Cameroon (as of 2007[update]), Bolivia (as of 1999[update]).
Such laws were ended in Mexico in 1991, Colombia in 1997, Peru in 1999, Egypt in 1999, Ethiopia in 2005, Brazil in 2005, Uruguay in 2005, Guatemala in 2006, Costa Rica in 2007, Argentina in 2012 and Morocco in 2014.
The practice of forcing victims of rape to marry their rapists continues even in many countries where the laws allowing this have been abolished. This is the case, for example, in Ethiopia, where marriage by abduction remains common, despite it being illegal under the new 2004 Criminal Code.
In 2012, after a Moroccan 16-year-old girl committed suicide after having been forced by her family to marry her rapist, at the suggestion of the prosecutor, and having endured abuse by the rapist after they married, there have been protests from activists against the law which allows the rapist to marry the victim in order to escape criminal sanctions, and against this social practice which is common in Morocco. The law was ended in 2014.
It is very difficult to assess the prevalence of marital rape, due to limitations of the research. Discussing sexual issues in many cultures is taboo. One of the problems with studies on marital rape is the fact that the very concept is not understood in many parts of the world. Because many societies operate on social norms which create a dual system for sexual morality - one for sexual intercourse that happens outside marriage and is seen as always wrong (and often illegal), and another for sexual intercourse that happens inside marriage which is seen as a duty that cannot be refused - issues of consent are poorly understood, especially by young wives (which are often young girls who do not have a proper understanding of sexuality). For instance in an interview in a study for the WHO, a woman from Bangladesh who described being hit by her husband and forced to have sex said that: "I thought this is only natural. This is the way a husband behaves." Research has, nevertheless, associated specific regions with a very high level of violence, including sexual violence, against women by husbands/partners. An example of such a place is Ethiopia.
In 1982, in the United States, Diana E. H. Russell, a writer and activist, published a study on marital rape. Her study surveyed a total of 930 women from San Francisco, California (50% non-response rate, Asian women were specifically excluded as non-reliable respondents), of whom 644 were married or divorced, or who self-identified as having a husband although not legally married. Six of these women (1%) responded that they had been raped by their husbands. The survey interviewers, however, classified 74 (12%) of the women as having been raped. Of the 286 non-married women in the sample, 228 (80%) were classified by the interviewers as having been raped. Russell found that when repeated instances of rape by husbands and ex-husbands are included, these account for 38% of all rape instances, making it one of the most prevalent types of rape.
David Finkelhor and Kersti Yllo published a study in 1985 on martial rape that drew on a scientifically-selected area probability sample from the metropolitan Boston area of 323 women who were married or previously married who had a child living with them between the ages of six and fourteen. The study found that of the women who were married the instance of sexual relations through physical force or the threat of physical force was 3%.
A 1992 survey by the National Victim Center in Arlington, Virginia states that 10% of all sexual assault cases reported by women involved a husband or ex-husband.
In 1994, Patricia Easteal, then Senior Criminologist at the Australian Institute of Criminology, published the results of survey on sexual assault in many settings. The respondents had been victims of numerous forms of sexual assault. Of these, 10.4% had been raped by husbands or de facto spouses, with a further 2.3% raped by estranged husbands/de factos.
A 1997 study led by Kathleen C. Basile found that 13% of US married women had experienced rape (defined as unwanted sex obtained through the use or threat of force) by their current husband.
In the UK, statistics disseminated by the Rape Crisis Federation yield the information that the most common rapists are husbands, ex-husbands, or partners.
The prevalence of marital rape depends on the particularly legal, national and cultural context. In 1999, the World Health Organization conducted a study on violence against women in Tajikistan, surveying 900 women above the age of 14 in three districts of the country and found that 47% of married women reported having been forced to have sex by their husband. In Turkey 35.6% of women have experienced marital rape sometimes and 16.3% often.
Young women from various settings in South Asia explained in surveys that even if they felt discomfort and didn't want to have sex, they accepted their husbands' wishes and submitted, fearing that otherwise they would be beaten. In many developing countries it is believed—by both men and women—that a husband is entitled to sex any time he demands it, and that if his wife refuses him, he has the right to use force. These women, most of them either illiterate or very poorly educated, are married at very young ages (in Bangladesh, for example, according to statistics from 2005, 45% of women then aged between 25–29 had been married by the age of 15), and depend on their husbands for their entire life. This situation leaves women with very little sexual autonomy. Often, when asked by their husbands to have sex, they are not in a position to refuse: they have to choose between unwanted sex and being subjected to violence; or between unwanted sex and being abandoned by their husbands and ending up living in abject poverty.
Problems in prosecuting spousal rape
The criminalization of marital rape does not necessary mean that these laws are enforced in practice, with lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute being common in many countries. For instance, in Ireland, where marital rape was made illegal in 1990, by 2006 there had been only one person convicted of marital rape (in a case which involved a man who raped his wife shortly after she had given birth and when she was still bleeding). In many countries, most often, in practice, there will be no prosecution except in extreme cases that involve a very high level of violence.
There have been many problems with prosecuting the perpetrators of spousal rape, chief amongst them has been the reluctance of the various legal systems to recognize it as a crime at all. However, criminalization has opened a new set of problems. To take an example in the United Kingdom, such a category of rape was only recognized by a 1991 House of Lords decision known simply as R v R (1991 All ER 481). While most parties agreed with the House of Lords' motive in making the decision, there were many who were of the opinion that the decision involved post facto criminalization, since the House of Lords were imprisoning spouses for doing what was once, according to the law, their right.
Another problem results from prevailing social norms that exist in certain cultures. In order for any law to be successfully enforced, the acts which it prohibits must be perceived by society as abusive. As such, even if a jurisdiction enacts adequate laws against marital rape, in practice, these laws are ignored if the act is not socially considered a crime. For example, in many parts of the world, where women have few rights, it is considered unthinkable for a woman to refuse her husband's sexual demands; far from being seen as an act of abuse of a wife, marital rape is seen as an incident provoked by the wife who refused to perform her duty: for instance one survey found that 74% of women in Mali said that a husband is justified to beat his wife if she refuses to have sex with him.
Other problems arise from the fact that, even in countries where marital rape is illegal, many people are not aware of the existing laws. Because in most parts of the world marital rape laws are very new, many people do not know of their existence. In many cultures, traditional ideas about marriage are deeply rooted in the conscience of the population, and few people know that forcing a spouse to have sex is illegal. For instance, a report by Amnesty International showed that although marital rape is illegal in Hungary, in a public opinion poll of nearly 1,200 people in 2006, a total of 62% did not know that marital rape was a crime: over 41% of men and nearly 56% of women thought it was not punishable as a crime in Hungarian law, and nearly 12% did not know. In Hong Kong, in 2003, 16 months after the criminalization of marital rape, a survey showed that 40% of women did not know it was illegal.
Countries where spousal rape is a criminal offence
Only criminalized when couple is separated
- Antigua and Barbuda
- Bahamas (Termed "spousal sexual assault" eligible for less jail time than charges of rape; requires permission of Attorney General to prosecute)
- India (according to Indian Penal Code section 376(A) Intercourse by a man with his wife during separation.—Whoever has sexual intercourse with his wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.)
- Jamaica: (legal separation, proceedings for the dissolution or annulment of the marriage, a protection order; or, if under ordinary circumstances, the husband "knows himself to be suffering from a sexually transmitted infection")
- Singapore (legal separation, divorce, restraining order, or attempt by the assaulted party to receive such legal status)
- Sri Lanka
Treated as a form of noncriminal domestic violence
Countries where spousal rape is not a criminal offence
- Implied consent
- Maouloud Baby v. State of Maryland, court case having to do with the withdrawing of sexual consent
- National Clearinghouse on Marital and Date Rape
- Recognition of marital rape in Pakistani Law
- Types of rape
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- Law that repeals certain articles that used to protect Marital rape
- OECD (2010-02-22). Atlas of Gender and Development: How Social Norms Affect Gender Equality in non-OECD Countries. OECD Publishing. p. 119. ISBN 978-92-64-07747-8.
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- Goonesekere, Savitri (2004). Violence, law and women's rights in South Asia. SAGE. pp. 60–61. ISBN 978-0-7619-9796-2.
- Fernando, Vijita (2008-10-14). "Sri Lanka: Island Dilemma: Is It Marital Rape or Domestic Violence?". News Blaze. Retrieved 2010-07-21.
- Justin Huggler, "India abolishes husbands' 'right' to rape wife," Independent (London), October 27, 2006.
- South Asia Research Institute for Policy and Development, India’s landmark domestic abuse law takes effect, October 26, 2006.
- "Indian Penal Code 375". Vakilno1.com. Retrieved 2012-05-14.
- Asian-Pacific Resource & Research Centre for Women (ARROW) (2011). Reclaiming & Redefining Rights: Thematic Studies Series 1: Sexuality & Rights in Asia. Kuala Lumpur, Malaysia: ARROW. pp. 22–23.
- "Our breakthrough finally came in September 2004. After years of effort, the parliament passed the law on violence against women in the home (Law No. 23/2004). The new law outlaws four forms of violence – physical, psychological, sexual (including marital rape), and economic neglect. Significantly the law makes ‘criminal’ violence against all members of the household, including husbands, wives, children and extended family members." Ratna Bataramunti "Justice for women? New anti-domestic violence law brings hope for women," Inside Indonesia, July–September 2006.
- "Rape is not a crime in the Afghan Penal Code. Under the code, rapists can only be charged with "forced" zina, or adultery, which sometimes results in women also being prosecuted for zina." Human Rights Watch (2009). "We Have the Promises of the World": Women’s Rights in Afghanistan. Human Rights Watch.
- "The 'Explanation' which forms part of Article 375 of Brunei’s Penal Code (rape) stipulates that 'Sexual intercourse by a man with his own wife, the wife not being under thirteen (13) years of age, is not rape.' This amounts to legalisation and legitimization of marital rape, including the rape of children, in flagrant violation of international human rights law." Amnesty International, "Brunei Darussalam: Amnesty International submission to the UN Universal Periodic Review," Sixth session of the UPR Working Group, November–December 2009.
- Asian-Pacific Resource and Research Centre (ARROW). "China: MDG 3: Promote Gender Equality and Empower Woman". Retrieved 8 March 2011. "China has no legal provisions for marital rape and the main reason for this is in deference to a prevailing cultural perception that wives are supposed to submit to their husband’s wishes in matters of sexual relations and hence, there is no such concept of ‘rape’ within marriage or ‘rape’ being considered a form of violence within the marriage."
- "In China, it is difficult to punish an offender for marital rape because the law does not define this behaviour as a crime. … there are no explicit articles in Chinese law that relate to marital rape." Westmarland, Nicole; Geetanjali Gangoli (April 2012). International Approaches to Rape. The Policy Press. p. 69. ISBN 978-1-84742-621-5.
- Peterman, Amber; Tia Palermo; Caryn Bredenkamp (June 2011). "Estimates and Determinants of Sexual Violence Against Women in the Democratic Republic of Congo". American Journal of Public Health 101 (6): 1060–1067. doi:10.2105/AJPH.2010.300070. ISSN 0090-0036. PMID 21566049.
- Warrick, Catherine. (2009). Law in the service of legitimacy: Gender and politics in Jordan. Farnham, Surrey, England; Burlington, Vt.: Ashgate Pub. ISBN 978-0-7546-7587-7.
- Fareda Banda, Project on a Mechanism to Address Laws that Discriminate Against Women, Office of the High Commissioner for Human Rights – Women’s Rights and Gender Unit, 6 March 2008, pp. 85-87.
- Klasing, Amanda (24 January 2012). "A chance for Congress to help Haitian women". Human Rights Watch. Retrieved 10 May 2012. "The penal code includes penalties for rape but does not address marital rape."
- Westmarland, Nicole; Geetanjali Gangoli (2011-04-06). International Approaches to Rape. The Policy Press. ISBN 978-1-84742-620-8.
- "The law does not recognize spousal rape." OECD (2010-02-22). Atlas of Gender and Development: How Social Norms Affect Gender Equality in non-OECD Countries. OECD Publishing. p. 214. ISBN 978-92-64-07747-8.
- Musawah (October 2011). Musawah Thematic Report on Article 16: Kuwait and Oman (50th CEDAW Session). Selangor, Malaysia.
- UN Committee on Elimination of Discrimination against Women (24 July 2009). "Lao People’s Democratic Republic boasts new legislation, machinery to improve women’s lot, but expert committee faults rape, domestic violence policies". WOM/1743. Retrieved 8 March 2011.
- Amnesty International, "Libya," 2011.
- MALI: Sexual and Reproductive Health and Rights (Instruments and Policies tab), in Women's Network for a Better World, Map of sexual and reproductive health and rights in Africa and Spain.
- " Additionally, spousal rape is not regarded as a criminal act in Mongolia (US 11 Mar. 2010, Sec. 6; UN 7 Nov. 2008, Para. 25). According to the NCAV because law enforcement organizations do not view marital rape as a crime, victims will consequently not ask for help from law enforcement officials (NCAV 2009). Victims also do not report marital rape out of concern for the reputation of their families (ibid.)." Immigration and Refugee Board of Canada (2010-04-15). "Domestic violence, including legislation, in particular the progress in the implementation of the 2005 law, and availability of state protection and support services (2008 - April 2010) [MNG103387.E]". Retrieved 2013-01-24.
- Committee on the Elimination of Discrimination against Women (7 November 2008). "Concluding observations of the Committee on the Elimination of Discrimination against Women: Myanmar". CEDAW/C/MMR/CO/3. p. para. 46. Retrieved 8 March 2011.
- Human Rights Watch (2007-04-10). Human Rights Watch World Report 2007. Seven Stories Press. pp. 300–301. ISBN 978-1-58322-740-4.
- "2009 Human Rights Report: Saudi Arabia". U.S. State Department. 11 March 2010. Retrieved 21 September 2010.
- "Under Senegalese law, rape is illegal, though spousal rape is not." Newman, Graeme R. (2010). Crime and Punishment Around the World: Africa and the Middle East, Volume 1. ABC-CLIO. p. 85. ISBN 978-0-313-35133-4.
- "Sexual offences". statutes.agc.gov.sg. Attorney-General's Chambers. Retrieved 12 July 2012.
- Penal Code Act, 2008 of South Sudan (Page 129)
- UK Home Office (2010-09-03). "Country of Origin Information Report - The Syrian Arab Republic". Retrieved 2011-03-08
- OECD (2010-02-22). Atlas of Gender and Development: How Social Norms Affect Gender Equality in non-OECD Countries. OECD Publishing. p. 85. ISBN 978-92-64-07747-8.
- "Section 118(2) of the Criminal Offences Act". The Secretary Generals database on violence against women. Retrieved 2011-03-07.
- Women & Children Crisis Centre. "Gaps in Tongan Rape Law need to be addressed::". Retrieved 2011-03-07.
- Akumu, Patience (May 26, 2010). "The phenomenon of marital rape". The Observer.
- "A clause outlawing marital rape has been dropped because of cultural considerations." Fidgen, Jo (2009-11-30). "Zambia's celebrity couple reveal wife-beating past". BBC. Retrieved 2010-07-22.
- "But Zambia does not have a comprehensive law on sexual violence or a provision for marital rape or psychological abuse in its penal code." Human Rights Watch (2008-12-16). "Zambia: Curbing Sexual and Gender-Based Violence". Retrieved 2010-07-22.
- For a brief overview view of partner rape, see STAR Library - Marital Rape
- Minnesota Advocates for Human Rights, Marital and Intimate Partner Sexual Assault, Stop Violence Against Women.
- Aphrodite Wounded: Partner Rape Facts, Survivor Support and Educational Resources
- Real Rape, Real Pain: Help for Women Sexually Assaulted by Male Partners Patricia L. Easteal, Louise McOrmond-Plummer
-  Raped by a Partner Research Report 2008 and  Partner Rape Educational DVD 2009 produced by Women's Health Goulburn North East.