What is Marital Rape? What steps does government take regarding the issue?

Marital rape is considered a form of domestic violence and sexual abuse. Laws are rarely being enforced, due to factors ranging from the reluctance of authorities.
Image Credit: Feminism India
Image Credit: Feminism India

Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses. Engaging in the act without the spouse's consent is now widely classified as rape by many societies around the world. Repudiated by international conventions, and increasingly criminalized.

Marital rape – Domestic violence

The issues of sexual and domestic violence within marriage and the family unit, and more specifically. The issue of violence against women has come to growing international attention from the second half of the 20th century. Still, in many countries, marital rape either remains outside the criminal law or is illegal but widely tolerated. Laws are rarely being enforced, due to factors ranging from the reluctance of authorities to pursue the crime to lack of public knowledge that sexual intercourse in marriage without consent is illegal.

Image Credit: Rediff Mail
Image Credit: Rediff Mail

Cultural expectations of subordination

Marital rape is more widely experienced by women, though not exclusively. Marital rape is often a chronic form of violence for the victim which takes place within abusive relations. It exists in a complex web of state governments, cultural practices. And societal ideologies combine to influence each distinct instance and situation in varying ways. The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and to cultural expectations of subordination of a wife to her husband—views which continue to be common in many parts of the world. 

Countries criminalized marital rape

Most countries criminalized marital rape from the late 20th century onward—very few legal systems allowed for the prosecution of rape within marriage before the 1970s. Criminalization has occurred in various ways. Including removal of statutory exemptions from the definitions of rape, judicial decisions. Explicit legislative reference in statutory law preventing the use of marriage as a defense. Or the creation of a specific offense of marital rape. In many countries, it is still unclear whether marital rape is covered by ordinary rape laws. But in some, countries non-consensual sexual relations involving coercion may be prosecuted under general statutes prohibiting violence, such as assault and battery laws.

History is the witness 

Historically, in much of the world, rape was seen as a crime or tort of theft of a man's property (usually either a husband or father). In this case, property damage meant that the crime was not legally recognized as damage against the victim, but instead to her father or husband's property. Therefore, by definition, a husband could not rape his wife. The view that a husband cannot be charged with the rape of his wife was described by Sir Matthew Hale (1609–1676) in History of the Pleas of the Crown, published posthumously in 1736. Where he wrote that "The husband cannot be guilty of a rape committed by himself upon his lawful wife. For by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract".

Image Credit: The Daily Beast
Image Credit: The Daily Beast

Also, American and English law subscribed until the 20th century to the system of an overture. A legal doctrine under which, upon marriage, a woman's legal rights were subsumed by those of her husband. The implication was that once unified by marriage. A spouse could no longer be charged with raping one's spouse, any more than being charged with raping oneself.

Problems in prosecuting marital rape

The criminalization of marital rape does not necessarily mean that these laws are enforced. A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute, is common globally. For instance, in Ireland, where marital rape was made illegal in 1990. By 2016 there had been only two persons convicted of marital rape. Additionally, gender norms 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.

Image Credit: Law Times Journal
Image Credit: Law Times Journal

There will be no prosecution for a victim of rape unless the victim experienced 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. For example, in the United Kingdom, rape by one's spouse was 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, many believed that the decision involved post factor criminalization.

Since the House of Lords were imprisoning spouses for doing what was once, according to the law, their right.

The way marriages are arranged

In many cultures, marriages are still arranged for procreation, property, and consolidation of extended family relations, often including a bride price or a dowry. 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. 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.

Image Credit: Adv. Vivek Tanwar
Image Credit: Adv. Vivek Tanwar

In Bangladesh, dowry demand at marriage is linked to increased sexual violence. 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.

Sustaining factors

Legally, governments have a direct impact on the occurrence of marital rape. 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. Whatever the reason behind such laws, even when state laws have criminalized marital rape, state institutions perpetuate it.

Image Credit: The Daily Beast
Image Credit: The Daily Beast

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 (Bergen, 2016). Even when marital rape is prosecuted successfully, 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 (Mandal, 2014)

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