Legal Recognition of Marital Rape: A Call for Reform

Abstract:

This article examines legal systems that exist worldwide and the persistent, and also controversial, issue of marital rape’s legal recognition. Even though people increasingly know about gender-based violence, several jurisdictions still do not recognise marital rape, often because of historical legal doctrines as well as cultural norms. This article examines the development of the marital rape exemption while criticising its continued allowance in some legal systems. It also analyses how jurisdictions approach marital rape upon criminalisation, using comparative approaches. It concludes by supporting thorough reform to laws by lawmakers and great protection to survivors, grounding reform in human rights and gender equality.

Introduction:

Marital rape, intercourse between spouses if non-consensual, remains a crime unrecognised legally within many countries. Its active, lawful status mirrors ingrained social standards that favour male power within marriage, encroach upon physical independence, and aggressively harm women.

This article explores both the historical basis and the contemporary status of marital rape laws. The article focuses on countries upon which they do either criminalise marital rape or they do exempt it. The aim involves examining legal rationales, human rights implications, and the urgent need for legislative reform.

Ought marital rape to be legally recognised as being a crime in all jurisdictions? What are the legal as well as social implications of recognition legally?

The article starts by presenting a historical context of the marital rape exemption, with analysis of developments within legal jurisdictions following on. Reform recommendations conclude it upon its discussion of human rights frameworks.

Background:

Historically, the concept that a husband could not rape his wife originated with “the husband cannot be guilty of a rape committed by himself upon his lawful wife,” a 17th-century claim by Sir Matthew Hale. This “marital rape exemption” then excluded wives from the protection of rape laws, considering consent to marriage as permanent consent to sex.

Throughout many common law jurisdictions, people presumed this until the late 20th century. The presumption ran into some difficulties at that time. In R v R [1991] UKHL 12, the House of Lords eliminated the exemption in the UK for it decided marriage implies no irrevocable consent to sexual relations[1]. Reforms like these then occurred in Canada (Criminal Code, s 276), Australia (Crimes (Amendment) Act 1981), as well as South Africa (Criminal Law (Sexual Offences and Related Matters) Amendment Act 2007).

Marital rape occurs when one person engages in unwanted intercourse or penetration through the use of force, threats, or when a spouse is unable to consent due to incapacitation, coercion, or fear. This underscores the fundamental principle that consent is necessary in all sexual relations. The law acknowledges this principle, even within the context of marriage.

Section 1: The Legacy of the Marital Rape Exemption

Despite its abolition in many jurisdictions, the marital rape exemption endures in countries such as India, wherein Section 375 of the Indian Penal Code specifically excludes rape within marriage unless the wife is aged under 18 years[2]. Cultural norms, marital privacy, and also the family institution justify this legal position. It safeguards those social frameworks.

However, such justifications fail to acknowledge the damage done to victims. Furthermore, such justifications do violate constitutional as well as international human rights. In Independent Thought v Union of India (2017) 10 SCC 800, the Indian Supreme Court read down the exemption for wives of under 18, but the broader exemption still exists.

The persistence of this exemption perpetuates the myth of implied consent and denies to women bodily autonomy. It is not aligned with international obligations by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) since that convention requires states to criminalise gender-based violence, including marital violence.

Section 2: Comparative Legal Approaches

In contrast, several of the countries have explicitly criminalised marital rape by way of reformed laws. R v R in the UK marked a turning point by affirming that blanket consent is not entailed within marriage. Evolving social standards, the principle of bodily integrity was emphasised by the court.

In 1983, Canada did bring to an end that exemption. In all sexual encounters, consent must be active, voluntary, as well as continuing, stressed the Canadian Supreme Court in R v Ewanchuk [1999] 1 SCR 330.[3]

Although some states maintain lesser penalties or evidentiary burdens in marital rape cases, all 50 states in the United States have removed the marital exemption in some form. South Africa’s legal reform after apartheid featured a wider sexual offences redefinition. This alteration recognised rape in marriage.

Accompanying the move to criminalise marital rape in each of these jurisdictions were shifts in social attitudes and legal activism. Increasing recognition of women’s rights as human rights also came with this move.

Section 3: Human Rights and the Criminalisation of Marital Rape

International human rights law advocates recognition and criminalisation of marital rape. Article 2 of the CEDAW requires states to engage in the elimination of discrimination against women.[4] This requirement does extend to discrimination that can occur within marriage. General Recommendation No. 35 clarifies that violence according to gender discrimination under the Convention.

States must ensure effective protection against rape, the European Court of Human Rights (ECtHR) held in MC v Bulgaria (2003) 40 EHRR 20, by including legal recognition for non-consensual acts within intimate relationships.[5]

The UN Declaration on the Elimination of Violence against Women (1993) does further affirm that states must exercise due diligence since they prevent and punish acts of violence targeted at women, regardless of any relationship as existing between victim and perpetrator.[6]

When authorities fail in their criminalisation of marital rape, they violate rights to equality, dignity, and personal liberty. Such a failure also contravenes freedom against inhuman treatment under instruments like the ICCPR[7], UDHR, and regional human rights conventions.[8]

Discussion:

Opponents argue that criminalising marital rape weakens marriage’s sanctity as well as might lead to false accusations. Others claim that laws impinging on the marital sphere violate that privacy.

These arguments do ignore the fundamental principle there. Marriage, however, does not do away with individual rights. Consent is a foundation of all sexual relations. That marriage provides consent automatically is an old assumption. It is also dangerous for one to presume that this consent is permanent.

Empirical study evidence indicates legally recognising marital rape does not raise false reports. Rather, it empowers survivors during their search for justice. It also ensures that the state is accountable when it addresses domestic violence issues.

Furthermore, international jurisprudence confirms that privacy cannot be a shield against human rights violations. States do have positive obligations so as to prevent abuse, even within private relationships, as indeed the ECtHR has stated.

Conclusion:

Marital rape is still a gender-based violence type, important though under-recognised. Legal exemptions do continue to weaken human rights, gender equality, and also the rule of law.

From a human rights lens, this article examined the issue plus it reviewed legal reforms in progressive jurisdictions, tracing the historical basis of the marital rape exemption. Marital rape was outlawed by jurisdictions because dignity standards were seen to be evolving. Those jurisdictions also recognised that autonomy and equality standards were evolving.

It is important to criminalise marital rape simply to protect victims. This move also signals that society condemns sexual violence irrespective of the relationship between perpetrator as well as victim.

The law has to evolve in order to reflect upon the reality that marriages cannot provide cover for violence. To realise gender justice and uphold the dignity and autonomy of all people, it requires universal recognition of marital rape as a crime, critically.

Reference(S):

R v R [1992] 1 AC 599 (HL).

Independent Thought v Union of India (2017) 10 SCC 800.

R v Ewanchuk [1999] 1 SCR 330

Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13, art 2.

MC v Bulgaria (2003) 40 EHRR 20

UN Declaration on the Elimination of Violence against Women, 1993

International Covenant on Civil and Political Rights (ICCPR), 1966

Universal Declaration of Human Rights (UDHR), 1948

[1] R v R [1992] 1 AC 599 (HL).

[2] Independent Thought v Union of India (2017) 10 SCC 800.

[3]R v Ewanchuk [1999] 1 SCR 330

[4] Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13, art 2.

[5]  MC v Bulgaria (2003) 40 EHRR 20

[6] UN Declaration on the Elimination of Violence against Women, 1993

[7] International Covenant on Civil and Political Rights (ICCPR), 1966

[8] Universal Declaration of Human Rights (UDHR), 1948