Formalization of the marital rape exemption in law

Feminist critique in the 19th century

From the beginnings of the 19th century feminist 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."^[18] Suffragists including Elizabeth Cady Stanton and Lucy Stone "singled out a woman's right to control marital intercourse as the core component of equality."^[19]

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.^[20] 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.^{[21][failed verification]}

Advocates of the Free Love Movement, including early anarcha-feminists such as Voltairine de Cleyre and Emma Goldman, as well as Victoria Woodhull, Thomas Low Nichols, and Mary Gove Nichols, joined a critique of marital rape to advocate women's autonomy and sexual pleasure.^[22] 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."^[23]

British philosopher and writer Bertrand Russell in his book Marriage and Morals (1929) 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."^[24]

20th- and 21st-century criminalization

The marital rape exemption or defence became more widely viewed as inconsistent with the developing concepts of human rights and equality. The first country which criminalized the marital rape in 1922 was Soviet Union (i. e. the penal code made no longer the distinction between violent sex within marriage and outside the marriage),^[25] one decade later Poland in 1932.^[26] After World War II, many members of the Communist Bloc followed the Soviet example, e. g. Czechoslovakia in 1950.^{[27] [28]}

Under the influence of European countries in which marital rape was already illegal (Soviet Union, etc.),^[29] feminists in other countries worked systematically since the 1960s to overturn the marital rape exemption and criminalize marital rape.^[30] 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."^[31] 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.^{[citation needed]}

The importance of the right to self sexual determination of women is increasingly being recognized as crucial to women's rights. In 2012, High Commissioner for Human Rights Navi Pillay stated that:^[32]

"Violations of women's human rights are often linked to their sexuality and reproductive role. (...) In many countries, married women may not refuse to have sexual relations with their husbands, and often have no say in whether they use contraception. (...) Ensuring that women have full autonomy over their bodies is the first crucial step towards achieving substantive equality between women and men. Personal issues—such as when, how and with whom they choose to have sex, and when, how and with whom they choose to have children—are at the heart of living a life in dignity."

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)—in such cases, in order to determine whether marital rape is covered by the ordinary rape laws it must be analyzed whether there are judicial decisions in this respect; and former definitions of the law are also important (for instance whether there was previously a statutory exemption that was removed by legislators for the purpose of implicitly including marital rape).^{[citation needed]}

In 2006, the UN Secretary-General's in-depth study on all forms of violence against women stated that:^[33]

"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."

In 2011, the UN Women report Progress of the World's Women:In Pursuit of Justice stated that:^[34]

"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").^[35]

An example of a country where the rape law explicitly excludes a husband as a possible perpetrator is Ethiopia; its rape law states:^[36] "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).^[37] Conversely, 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".^[38] An example of a jurisdiction where marital rape is a distinct criminal offense is Bhutan where 'Marital rape' is defined by Article 199 which reads: "A defendant shall be guilty of marital rape, if the defendant engages in sexual intercourse with one's own spouse without consent or against the will of the other spouse".^[39]

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.^[40] This was reiterated by the Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence.^[41] (see para 35) This recommendation provided detailed guidelines on how legislation regarding domestic violence, rape, and other forms of violence against women should operate. It also provided a definition of violence against women, and gave a list of non-exhaustive examples, including marital rape (see section "Definition" para 1). Although the approach on the issue of violence against women has varied significantly among European countries, the traditional view that acts of violence against a woman are crimes against honor and morality, and not against the self-determination of the woman, was still prevalent in the 1990s in many countries.^[42] The above recommendation stated that member states must "ensure that criminal law provides that any act of violence against a person, in particular physical or sexual violence, constitutes a violation of that person's physical, psychological and/or sexual freedom and integrity, and not solely a violation of morality, honour or decency" (para 34).^[43] The approach regarding sexual and other forms of violence against women in specific European countries did not necessarily mirror women's rights in other areas of life (such as public or political life) in those countries: in fact some countries otherwise known for advanced women's rights, such as Finland and Denmark, have received strong criticism for their policies in this area. A 2008 report produced by Amnesty International,^[44] described Danish laws on sexual violence as "inconsistent with international human rights standards",^[45] which has led to Denmark eventually reforming its sexual offenses legislation in 2013.^[46][47][48] (Until 2013, in Denmark "the Penal Code reduce[d] the level of penalty or provide[d] for exclusion of punishment altogether for rape and sexual violence within marriage in certain instances [...] and if the perpetrator enter[ed] into or continu[ed] a marriage with his victim the punishment for rape c[ould] be reduced or remitted").^[45] Cultural and religious values which support female subordination and inequality are considered important in dealing with the issue of sexual violence against women; but there have been calls for analyses of cultural gender norms which tolerate violence against women to not be based on stereotypes; Mala Htun and S. Laurel Weldon write "gender policy is not one issue but many" and "When [...] Latin American countries are quicker to adopt policies addressing violence against women than the Nordic countries, one at least ought to consider the possibility that fresh ways of grouping states would further the study of gender politics."^[49] The causes of the toleration – in law or in practice – of sexual violence inside marriage are complex; lack of understanding of the concept of consent and coercion due to lack of sexual education and public discussion about sexuality are often cited as causes of sexual abuse in general; but there has been criticism towards the idea that sex education about consent, in and of itself, is sufficient.^[50]

The countries which choose to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence, the first legally binding instrument in Europe in the field of violence against women,^[51] are bound by its provisions to ensure that non-consensual sexual acts committed against a spouse or partner are illegal.^[52] The convention came into force in August 2014.^[53] In its explanatory report (para 219) it acknowledges the long tradition of toleration, de jure or de facto, of marital rape and domestic violence:

"A large number of the offences established in accordance with this Convention are offences typically committed by family members, intimate partners or others in the immediate social environment of the victim. There are many examples from past practice in Council of Europe member states that show that exceptions to the prosecution of such cases were made, either in law or in practice, if victim and perpetrator were, for example, married to each other or had been in a relationship. The most prominent example is rape within marriage, which for a long time had not been recognised as rape because of the relationship between victim and perpetrator."

In the context of forced and child marriage

Forced marriage and child marriage are prevalent in many parts of the world, especially in parts of Asia and Africa. A forced marriage is a marriage where one or both participants are married without their freely given consent;^[177] while a child marriage is a marriage where one or both parties are younger than 18.^[178] These types of marriages are associated with a higher rate of domestic violence, including marital rape.^{[178][179][180][181]} 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.^[182][183] The World Health Organization states, under the rubric "Customary forms of sexual violence", (pp. 156):^[184]

"Marriage is often used to legitimize a range of forms of sexual violence against women. The custom of marrying off young children, particularly girls, is found in many parts of the world. This practice – legal in many countries – is a form of sexual violence, since the children involved are unable to give or withhold their consent. The majority of them know little or nothing about sex before they are married."

One type of forced marriages occurs in Guatemala (called robadas) and Mexico (called rapto). Robadas refers to "...abductions, in which women are 'taken' during the period of courtship, sometimes semivoluntarily but other times by force, by a suitor who wants to start a marital relationship with them".^[176] Rapto refers to "...an abduction for sexual or erotic purposes or marriage".^[4] Following the abduction, marriage is often encouraged to maintain the family honor.^[4]

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.^[176] This foundation of marriage had direct implications for sexual violence within the marriage. In reference to the practice of robadas, Cecilia Menjívar writes, "...unions that start out from the violent act of a robada can continue to breed violence, abuse, and mistreatment in the union."^[176] In addition, women victims of robadas often face embarrassment and blame, despite the act usually being initiated by male perpetrators.^[176] Women are blamed for disobeying their parents or not resisting their abductor strong enough.^[176] This notion of blaming the woman also occurs in reference to rapto in rural Mexico. Silvie Bovarnick writes, "In many cases, men and women alike look for the fault of responsibility in women's behavior due to traditional conceptualisations of women as 'pillars of honour.'"^[4] Abduction and rape compromises a woman's moral integrity, and therefore her honor.^[4] Many of these women, who were given little choice in their marriage, are left to live with their abusers.^[4]

Legal

Legally, governments have direct impact on the occurrence of marital rape. The state "…engages in the definition, monitoring, and sanctioning of appropriate behavior".^[175] This can play out in criminalizing or not criminalizing marital rape and therefore deeming what is appropriate. Catharine MacKinnon argues that rape laws in male dominated societies exist to regulate access to women from a male perspective, not to protect women's right to freely decide whether to engage in sexual intercourse or not.^{[citation needed]} Whatever the reason behind such laws, even when state laws have criminalized marital rape, state institutions perpetuate it. For example, although marital rape has been criminalized throughout the United States, the original laws of the 1980s and 1990s treated marital rape differently from non-marital rape, and in some states this continues to be the case even today (see Marital rape (United States law)). As these laws exemplify, marital rape is seen as somehow less reprehensible than rape outside of marriage.^[8] 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. Following this same understanding, British courts often pass lower sentences to marital rape than to other cases of rape because it is believed that it causes less harm to the victim ^[204]

Police departments are another state institution that treats domestic violence differently than other forms of violence. Police often label domestic abuse calls as low priority, respond slower, and focus on what provoked the abuse rather than the violent actions of the perpetrator.^[9] Also, they often act as mediators in the situation because they may feel that domestic violence is a family matter and therefore not their business.^[9]

While government institutional influences are vast, marital rape is often sustained by cultural ideologies. According to Catharine MacKinnon and Andrea Dworkin, the issue of sexual violence, including within marriage, has not been a political spectrum issue – that is a left wing vs. right wing issue – but a general ubiquitous part of the culture, "The Left and the Right have consistently had different positions on rape; but neither has acknowledged rape from the point of view of the women who experienced it."^[205]

Culturally unrecognizable

For many cultures, ideas of marital rape seem often foreign imposed and contradict the belief that such matters should be dealt with privately rather than by the government.^[206] In other instances, notably in the country of India, members of the government have spoken publicly that marital rape cannot be recognized in their culture. 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".^[175] For many other countries, the concept of marital rape is itself an oxymoron.^[206] Women in these cultures largely "share the cultural logic that marital rape is a contradiction in terms" while men simultaneously "see women's sexual consent in marriage as taken for granted" and therefore "reject the very concept of marital rape".^[206]

The act of imposing sexual intercourse against the will of the wife is often not identified as morally wrong, and so it is difficult to attempt to stop the practice, "Often, men who coerce a spouse into a sexual act believe their actions are legitimate because they are married to the woman." (WHO, pp. 149).^[184] This idea that sexual intercourse in marriage is 'legitimate' and so it cannot be illegal even when forced, is in some parts of the world fueled by the custom of bride price: its paying is seen as earning the man the right to sexual and reproductive control of his wife. UN Women recommended the abolition of giving bride price, and stated that: "Legislation should [...] State that a perpetrator of domestic violence, including marital rape, cannot use the fact that he paid bride price as a defense to a domestic violence charge. (pp. 25) "^[207]

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.^[208] 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.^[208] 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 and 29 had been married by the age of 15^[209]), and depend on their husbands for their entire life. This situation leaves women with very little sexual autonomy. The notion that women are sexually autonomous and therefore have the ability to give or retract consent is not universally understood. 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."^[175]: 14 As a result, in cultures where women are not considered autonomous, they are not in a position to refuse sex: 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.^{[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. [...] Such forces include the massive industry of sexology, sex therapy, sex advice literature, all of which make women feel guilty and inadequate for any unwillingness to fulfill a man's sexual desires."^[210]

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. Under such ideologies it is difficult to accept the concept of marital rape. Richard A. Posner writes that, "Traditionally, rape was the offense of depriving a father or husband of a valuable asset – his wife's chastity or his daughter's virginity".^[211] In many countries of the world, including Morocco, Algeria, Tunisia, Jordan, the severity of the legal punishment for rape depends on whether the victim was a virgin.^[212][213] Rhonda Copleon writes that, "Where rape is treated as a crime against honor, the honor of women is called into question and virginity or chastity is often a precondition."^[214]

The way marriages are arranged

In many cultures, marriages are still arranged for the purpose of procreation, property, and consolidation of extended family relations, often including a bride price or a dowry. In such situations, marriages are pre-arranged as an affair between families and clans. In some cultures, refusal of an arranged marriage is often a cause of an honor killing, because the family which has prearranged the marriage risks disgrace if the marriage does not proceed.^{[215][216][217]} Although laws that prohibiting dowries exist in many countries, men continue to demand a dowry in exchange for marriage, especially in rural areas where law enforcement is weak. In Bangladesh, dowry demand at marriage is linked to increased sexual violence.^[218] A woman attempting to obtain a divorce or separation without the consent of the husband/extended family can also be a trigger for honor killings. In cultures where marriages are arranged and goods are often exchanged between families, a woman's desire to seek a divorce is often viewed as an insult to the men who negotiated the deal.^[219][220]

However, the fact that people in developing countries are increasingly selecting marriage partners by whether they are in love – a much more Western world view – does not necessarily improve the situation. These types of marriages, especially in southeastern Nigeria, are putting women in more difficult positions: if one chooses to marry based on love against their family's wishes, admitting violence in the relationship is a disgrace because it means admitting that one made the wrong judgement.^[206]

Religion

Gender expectations

Another sustaining factor is the obligatory roles placed on wives and what they come to understand as their "duty". For example, "Vietnamese women are expected to sacrifice for their families, especially for their children, which includes, for some, acceding to husbands’ sexual demands".^{[174][page needed]} Their "duty" is to maintain family harmony and happiness.^{[174][page needed]} In Guatemala, violence within marriage is so normalized that wives come to believe that this is 'the way things are' and it is simply their role as a wife to endure the violence.^{[176][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".^{[176][page needed]} Further, because many of these women believe giving sex is their duty, they do not characterize their experience as marital rape.^{[8][page needed]} However, "women who have experienced forced sex in marriage understand this experience as an abuse or violation", they just may not characterize it as marital rape.^[175] Violence is so entrenched in many cultures it simply becomes a way of life, and wives are left to believe they must learn to endure it.^{[176][page needed]}

On the other hand, husbands are influenced by the expectations of their masculinity. In Africa, these expectations include being a husband, father, and head of the household which requires men to provide food, shelter and protection.^{[206][page needed]} Along with this "obligation of being the provider comes the privilege and authority of patriarchy".^{[206][page needed]} As a result, it is often the man's perception that his wife has challenged his authority that leads to the violence.^{[206][page needed]}

In the United States, masculinity is understood as a fixed entity that exists despite the changes of everyday life.^[239] It is understood as being in comparison to femininity, and more specifically, in opposition to femininity: Masculinity is to superiority as femininity is to subservience.^{[240][page needed]} Therefore, masculinity is correlated with aggression in such a way that scholars argue violence is a way for men to show their masculine identity.^{[241][page needed]} Another expectation of masculinity is that men are not to show their emotion.^{[241][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.^{[241][page needed]} This sense of control in Western masculinity has direct implications for domestic violence. Scholars argue that some men use violence to regain this sense of control when it is lost.^{[241][page needed]}

However, not all men who subscribe to masculinity expectations are violent. In fact, most men, in general, are not violent.^{[241][page needed]} For those who are violent, ideals of masculinity seem to play some causal role in their violence. Research shows that "violence is more likely among men who experience a disconnection between their personal circumstances and their emotions".^{[241][page needed]} Evidently, there seems to be some connection between the masculine expectation of suppressing or disconnecting from one's emotions, and one's tendency to be violent.^{[241][page needed]}

Marital rape that occurs in same-sex relationships or is perpetrated by women in heterosexual relationships is even less well studied.^[242][243]