Marital rape

Spousal rape is non-consensual sexual assault in which the perpetrator is the victim's spouse.

Spousal rape is also called marital rape and often wrongly conflated with partner rape or intimate partner sexual assault (IPSA). Because there is a widely held view that a man or woman surrenders consent upon entering a marriage, the law has been slow to criminalize this form of sexual assault. It is now a crime in most parts of the Western world, but exemptions still apply in some places; for example in some places marital rape cannot be prosecuted if the couple were living together at the time of the assault.

Due to popular stereotypes of "real" rape, it is often assumed that because spouses have been sexually intimate, forced sexual intercourse in marriage is not as traumatic as rape by a stranger. However the research of Finkelhor and Yllo (1985) and Bergen (1996) found that victims of marital/partner rape suffer longer-lasting trauma than victims of stranger rape. One reason for this is thought to be the lack of social validation that prevents a victim from getting access to support. Domestic violence services have made inroads in addressing this problem.

Legal aspect

Marital rape is criminalized Sources: Unicef 1997. UNIFEM 2003.

Historically, many cultures have had a concept of a spouses' conjugal right [1] to sexual intercourse with each other. The proposition of Christian teaching's influence in Western culture need be considered, in particular, St. Paul's teaching, "For the wife does not have authority over her own body, but the husband does; likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except perhaps by agreement for a set time, to devote yourselves to prayer" (1 Corinthians. 7:3-4a, RSV). 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 classic legal treatise, Historia Placitorum Coronae, 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."

As the concept of human rights has developed, the belief of a marital right to sexual intercourse has become less widely held. In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence against Women [2]. This establishes marital rape as a human rights violation. This is not fully recognized by all UN member states. In 1997, UNICEF reported that just 17 states criminalized marital rape. In 2003, UNIFEM reported that more than 50 states did so.

Many United States rape statutes used to preclude spousal prosecution, including estranged or even legally separated couples. In 1975, South Dakota removed this exception. By 1993, this was the case throughout the United States.[3] However, 33 of 50 U.S. states regard spousal rape as a lesser crime [Bergen, 1999]. The perpetrator may be charged with related crimes such as assault, battery, or spousal abuse. It is also known that even if a spouse has an illness causing an inability to sexually respond, the other spouse may engage him or her in conjugal relations without criminal liability. There are other criminal charges that may be inapplicable to married couples. For example, in the U.S., marriage precludes a charge of statutory rape even if one of the spouses is under the age of consent in the jurisdiction where the sexual act takes place.

In India, the Protection of Women from Domestic Violence Act 2005 (passed August 2005; entered into force October 2006) criminalizes marital rape as a form of domestic violence, and therefore attracts a lesser jail term than non marital rape. Noted Thai legal scholar Taweekiet Meenakanit voiced his opposition to legal reforms that made spousal rape in Thailand a crime. He said it was "abnormal logic" to allow a man to file a rape charge against a woman. He also disagrees with making a crime of a husband raping his wife as this would be difficult to effect since many Thai wives were dependent on their husbands and would not want to divorce them or put them in jail. Recent countries to criminalize marital rape include: Turkey (2005), Mauritius (2007), Thailand (2007).

History of the exemption in England and Wales

The marital rape exemption was abolished in England and Wales in 1991 by the House of Lords, in its judicial capacity, in the case of R v R [1992] 1 AC 599. The exemption had never been a rule of statute, having first been promulgated in 1736 in Hale’s History of the Pleas of the Crown, where he stated:

"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."

The statement was not supported by any judicial authority but was believed to be a logical consequence of the laws of marriage and rape as historically understood. 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 (1888) 22 QBD 23 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.

The first attempted prosecution of a man for the rape of his wife was R v Clarke [1949] 2 All ER 448. Rather than try to argue directly against Hale’s logic, the court held that, although the proposition may be sound, 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 court qualified the rule by delineated exemptions where the rule did not apply, notably R v O’Brien [1974] 3 All ER 663 (the obtaining of decree nisi), R v Steele (1976) 65 Cr.App.R. 22 (an undertaking by the husband to the court not to molest the wife) and R v Roberts [1986] Crim LR 188 (the existence of a formal separation agreement).

There are at least four recorded instances of a man successfully relying on the exemption as a defense to the charge of rape in England and Wales. The first was R v Miller [1954] 2 QB 282, where it was held that the wife had not revoked her consent despite having presented a divorce petition. R v Kowalski (1988) 86 Cr. App. R. 339 was followed by R v Sharples [1990] Crim LR 198, 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 overrule the exemption. In Miller, Kowalski and R v J the husbands were instead convicted of assault or indecent assault.

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 evade 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.

Statistics

Diana E.H. Russell, a researcher into rape, reports that 8% of 900 randomly selected women in the U.S. reported they had been raped by a husband. A 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 1975, the results of an American study on many rape situations were published. Russell was so appalled by her findings on rape in marriage that she decided to conduct a research project on this area alone. From the 930 interviews conducted with women from a cross section of race and class, Russell concluded that rape in marriage was the most common yet most neglected area of sexual violence (Russell, 1990)

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 were survivors of numerous forms of sexual assault. Of these, 10.4% had been raped by husbands or de facto spouses, with a further 2.3 per cent raped by estranged husbands/de factos. .

David Finkelhor and Kersti Yllo's 1985 study estimated that 10 to 14 per cent of all married American women have been or will be raped by their husbands. (Finkelhor and Yllo, 1985)

In the UK, statistics disseminated by the Rape Crisis Federation yield the information that the most common rapists are current and ex-husbands or partners (Myhill & Allen, Rape and Sexual Assault of Women: Findings from the British Crime Survey)

Problems in prosecuting spousal rape

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). Whilst most parties agreed with the Lords' motive in making the decision, there were many (for instance the writer Patricia Hirst in her Textbook on A-Level law) who were of the opinion that the decision involved post facto criminalization, since their lordships were imprisoning spouses for doing what was once, according to the law, their right.

The second problem arises on what can be called a procedural level. Whilst the law in theory may hold no distinction between a spouse or any other person, in practice when the case comes to court there will be difficulties in proving that rape in fact took place. This is due to the fact that in marriage, sexual relations are to be expected, and if the defense claims consent, then the evidential burden is a very difficult burden for the prosecution to discharge. [4]

The very definition of consent can also lead to problems and deadlock, since social norms permit a varying level of physical intimacy (and freedom) depending on the relationship between the parties.

References

• Bergen, Raquel Kennedy, "Marital Rape" on the site of the Applied Research Forum, National Electronic Network on Violence Against Women. Article dated March 1999. (Retrieved February 8, 2005.)
• Easteal, P. Voices of the Survivors, Spinifex Press, North Melbourne, 1994.
• Finkelhor, D. and Yllo, K., License to Rape, The Free Press, New York 1985.
• Gan, K., Sex a conjugal right, on the site of Malaysiakini. Article dated September 2004. (Retrieved April 20, 2005. Original link is dead, substitute link is to the Internet Archive, and is dated October 12, 2004.)
• Russell, Diana E.H., Rape in Marriage Macmillan Publishing Company, USA, 1990.
• The American Bar Association, Facts about Women and the Law. (Retrieved April 20, 2005.)
• General Assembly resolution 48/104 of 20, Declaration on the Elimination of Violence against Women, on the site of the Office of the United Nations High Commissioner for Human Rights, December 1993. (Retrieved April 20, 2005.)
• —, Marital Rape, on the site of Abuse Counseling and Treatment, Inc. (Retrieved February 8, 2005.)

See also

• Types of rape
• Rape

External links

• 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.
• Domestic Violence / Marital Rape in Jewish Families
• McElroy, Wendy, Spousal Rape Case Sparks Old Debate on the site of FoxNews. (Retrieved April 20, 2005).
• Global AIDS Programme World AIDS Day 2004. (Retrieved April 20, 2005).
• Real Rape, Real Pain: Help for Women Sexually Assaulted by Male Partners by Patricia Easteal and Louise McOrmond-Plummer
• Survivor Matters - Support forum created by survivors for survivors to gain support and understanding from each other in a safe environment