Marital rape
Laws are rarely enforced, due to factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge that sexual intercourse in marriage without consent is illegal.
It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways.
These views of marriage and sexuality started to be challenged in most Western countries from the 1960s and 70s especially by second-wave feminism, leading to an acknowledgment of the woman's right to self-determination of all matters relating to her body, and the withdrawal of the exemption or defence of marital rape.
The principle was framed as an exemption to the law of rape in an English courtroom in R v Clarence,[17] but it was not overturned until 1991 by the House of Lords in the case of R v R in 1991, where it was described as an anachronistic and offensive legal fiction.
"[19] Suffragists including Elizabeth Cady Stanton and Lucy Stone "singled out a woman's right to control marital intercourse as the core component of equality.
"[20] 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.
[21] 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.
In 1992 the Court 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 when the contrary is not proven.
[81] Before 1997, the definition of rape was: "Whoever compels a woman to have extramarital intercourse with him, or with a third person, by force or the threat of present danger to life or limb, shall be punished by not less than two years’ imprisonment".
[citation needed] Recent countries to criminalize marital rape include Zimbabwe (2001),[115][116] Turkey (2005),[117] Cambodia (2005),[118] Liberia (2006),[119] Nepal (2006),[120] Mauritius (2007),[121] Ghana (2007),[122] Malaysia (2007),[123][124] Thailand (2007),[125] Rwanda (2009),[126] Suriname (2009),[127] Nicaragua (2012),[128] Sierra Leone (2012),[115][129] South Korea (2013),[130] Bolivia (2013),[131] Samoa (2013),[132] Tonga (1999/2013).
[137] The traditional definition of rape in the United States is the forced sexual intercourse by a male with a "female not his wife", making it clear that the statutes did not apply to married couples.
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.
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.
Between 28 July 2003 and 2 February 2009 rape was defined by the Criminal Justice (Northern Ireland) Order 2003 as "any act of non-consensual intercourse by a man with a person", but the common law offense continued to exist, and oral sex remained excluded.
[5] In these types of forced marriages, the marital union begins with the man's intense sense of control over the woman, combined with the understanding that the wife is the possession of her husband.
[194] In 2002 Basile published research intended to address the lack of a nationally probability sample to-date that measured intimate sexual coercion faced by married women.
For instance, in 1824, in Calvin Bradley v. the State, the Mississippi Supreme Court uphold this right of the husband; ruling as follows:[201] 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.
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.
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".
[9] Even when marital rape is prosecuted successfully, courts often pass shorter sentences – even if the law itself does not stipulate this – based on the view that sexual violation is less serious if it occurs within marriage.
The Indian Minister of State for Home Affairs, Haribhai Parthibhai Chaudhary, stated in April 2015, "The concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including levels of education, illiteracy, poverty, myriad social customs and values, religious beliefs, [and] the mindset of the society to treat the marriage as sacrament".
25) "[208] Young women from various settings in South Asia explained in surveys that even if they felt discomfort and did not want to have sex, they accepted their husbands' wishes and submitted, fearing that otherwise they would be beaten.
Gabriella Torres writes, "The degree to which women and men view themselves as unique social beings with a full ability to make choices and suffer consequences varies by culture.
[citation needed] According to Sheila Jeffreys, in Western countries, "sexual liberation" ideologies have aggravated the problem of male sexual entitlement, leading to women submitting to unwanted sex not only due to physical force or illegal threat, but due to societal pressure: "The force which has operated on them [women] all their lives and continues to operate on them within marriages and relationships remains largely invisible.
"[211] The prohibition of rape serves other purposes, such as protection of the rights of male relatives or husband, enforcing of religious laws against sex outside of marriage, or preservation of a woman's respect and reputation in society.
"[231] This teaching, which has been reaffirmed more recently by Pope Francis,[232] and has been interpreted by Bertrand de Margerie to condemn "intra-marital rape", and the use of force in marriage more generally.
In the case of spousal rape, the law is derived in part from Proverbs 19:2, "Also, it is not good for the soul to be without knowledge [or wisdom], and he that hastens with his feet sins".
[177][page needed] This "normalization of violence [...] rests on a continuum of coercive power that makes possible the mistreatment of women not only in their homes but also in the community, neighborhood, and society at large".
[242][page needed] Instead, as Robert Connell argues, the "masculine prototype" is a strong and stoic man who appears to remain in control of the situation and his emotions.
[78] Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize spousal rape or feel confident that it will be addressed by law enforcement.
