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Marital Rape - Power Relations And Legality! - A Case For Lex Feranda

The study of inequality should be concerned with power at its extremities, in its ultimate destinations, with those points where it becomes capillary.[1]

The existence of spousal exemption in today's laws indicates an acceptance of the archaic power relations and the marriage contract as an entitlement to sex. This paper traces the legal history of exemption of marital rape, its reasons & marital immunity in sexual offences in different countries. The endeavor has been the juxtaposition of the same with prevailing provisions to evaluate the legality of marital rape.

The broad arguments presented are – its gender discriminatory nature; with a special emphasis on formal neutrality of marital status and; ongoing consent as a hindrance in bringing changes to today's statutes. This study indicates the improved legislations are the need of the hour to address asymmetrical power relations. The ineptness of the legal system leads to non-fulfillment of Hartian positive obligation. The analysis, through verification, comes up with grey areas, dealing with which can help augment the justice administration.

Marital rape can be defined as an act of sexual intercourse by a married person with his/her spouse without obtaining consent. The necessary element is the absence of consent and it is not necessary that it involves any kind of physical violence. However, legal definition varies within the United States where the marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent[2].

Domestic violence has gained increasing recognition due to the efforts of the feminist and battered women's movements. Rape, too, has been reconceptualized to some degree, with more widespread acknowledgment of date and acquaintance rapes that do not fit the traditional 'stranger rape' profile[3]. But spousal sexual abuse, which combines the elements of domestic violence and rape, has failed to attract the same attention or support.

Diana Russell, author of the seminal work Rape in Marriage, contends that feminist discourse on both domestic violence and stranger rape has excluded wife rape as a pressing concern.[4] Neglect by mainstream feminists and domestic violence activists is a tragic omission, considering that wife rape may well be the most prevalent form of rape[5].

Thus, the intent of this research paper is to first briefly summarize what the authors know about the marital rape through different sub-headings. This research paper will first provide an overview of the research on marital rape with:
  1. A Brief Legal History of Marital Rape and The Birth of Exemptions
  2. Reasons Behind Marital Rape
  3. Provisions of India to Argue that how the Exemptions Are Unconstitutional.

Then, the authors would present three arguments to counter the theories which justify the legality of marital rape in today's modern world.

Our first argument is that it is clearly a discrimination against the married women who get sexually assaulted by their husbands and therefore, the authors appeal to the state to not to provide the favorable conditions to men who sexually assault their wives. Authors pray for formal neutrality in the world so that no preference is given to men who rape their wives in comparison to men who rape other women.

Secondly, authors would emphasize to attain the formal neutrality in marital status.

Thirdly, authors would show that how the inference of ongoing consent in sexual relationships regardless of marital status of parties is a hindrance in bringing the necessary changes in today's world.

Does Marital Rape Even Exist?
The most pertinent question at the outset is - can we or should we investigate a phenomenon which, by legal definition, does not even exist? Let us try to understand how 'rape' has been understood in different milieu.

Rape has been defined conceptually as:
any sexual intimacy forced on one person by another[6].

A less objective and more culturally relative definition of rape is provided by Levine in his study of rape in the Gussi tribe. Levine defines rape as 'culturally disvalued use of coercion by a male to achieve the submission of a female to sexual intercourse'[7]. The Webster dictionary's definition of rape is 'sexual inter course with a woman by a man without her consent and chiefly by force or deception.

Thus, most quarters of the orb, in case of rape - woman is the sufferer and man is the perpetrator. However, Media and Thompson's definition (1974) implies that even a man can also be the victim of rape by a woman, and research on homosexual assault in prison documents show that men are raped by men[8].

The problem becomes contentious when a criminal justice system views forced sexual intercourse between husbands and wives as not rape. The rationale flows from the anti-diluvian approach espoused in the understanding of malaise. It identifies marriage contract as requiring wives (and husbands) to have sexual relations with their spouses as the foremost determinant. While the 'duty' of sex, in a legal sense, is equally distributed in marriage, the compulsory nature of sexual relations in marriage works chiefly to the advantage of the male[9].

This is an outcome of asymmetry created as a result of a typical man's superior position enabling him to muster more physical, social, and material resources in their relations with their wives.
Given that marital rape does not exist legally, should we examine it as a part of family behavior and as an aspect of marital violence?

Authors believe that we should. The legal prescriptions which imply that a wife is the property of her husband and which give the husband the permanent right to sexual relations once the wife says I do are a reflection of an ideology, not a portrait of reality[10]. The law is a reflection of what behavior ought to be, not what behavior actually is.

The fact that a criminal justice system is largely populated by males - partially explains the fact that legal statutes reflect a 'male dominant' view of family behavior. A case in point is the California Penal Code which requires that a woman be more injured than is commonly allowed for battery in order to press an assault charge against her husband[11].

The fact that the courts do not accept the concept of marital rape does not, in our opinion, mean that wives are not being raped by their husbands. Since forced sexual relations between a husband and wife are not legally considered cases of rape, all the more importance is attributed to - whether or not a wife herself views the incident as a 'rape.'

The majority of women who are physically forced into having sexual intercourse by their husbands do not consider this to be an incident of rape, a violent act, or a deviant act. Thus, if the victim herself is unlikely to view the behavior as 'rape,' how can we discuss the phenomenon 'marital rape'? In order to answer the question, it would be wise to briefly analyze why a woman would not view physically coerced sex as rape. Our research on marital violence suggests that many victims of family violence (including abused children) do not view these acts as violence or even problematic.

In analyzing forced sexual relations between spouses, the pervasive ideology of women as men's 'chattel' has served to deny women the opportunity to perceive their own sexual victimization[12]. Authos have chosen to discuss the issue of marital rape, irrespective of the wife's subjective perceptions of the behavior, because this is a phenomenon which needs to be questioned and studied.

The discussion of a wife's perception of forced sexual intercourse and our rationale for choosing to investigate this phenomenon despite the fact that many women do not perceive themselves as rape victims raises the issue of the value implications involved in labeling the phenomenon rape. Rape is a pejorative term which connotes repulsive and violent deviance. Auhtors have chosen to use the term rape in this paper and for the same reasons authors have decided to title our investigation 'studies of violence between family members' and for the same reasons authors have chosen to study abused wives.

Reasons Behind Marital Rape

One of the basic causes of marital rape is that in a male dominant relationship many husbands use sexual violence as a way to maintain power[13]. Another important factor for raping an unwilling pair-bonded mate may be a male tactic of sperm competition which is a result of sexual jealousy of a man as a woman's sexual unreceptivity may suggest to him that she is having consensual intercourse with another[14].

Also, abusive men with the history of alcohol or drug problems are apt to abuse their spouses sexually when drunk or sober. Further, Russell argues that economic factors are extremely important in understanding why women keep living with men who rape them. Most of the women are unemployed and dependent upon their husbands for their living and thus are unable to resist such a dreadful act.

Women are at particularly high risk for being raped by their partners under the following circumstances: women married to domineering men who view them as 'property'; women who are in physically violent relationships, pregnant women, ill women or women recovering from illness, separated or divorced women[15].

The theme in much of the literature is that the rape is less a sexual act and more an act of power in the relations between men and women. Bart concludes, based on her analysis of questionnaires filled out by rape victims, that rape is a power trip, not a passion trip[16]. Brownmiller also perceives rape as a power confrontation. She views rape as an act of hostility towards women by men - rape is an attempt of a man to exercise power over a woman[17].

Seites agrees that rape is a sexual power confrontation[18]. She postulates that marital rape is an act where a husband can assert his power and control over his wife. If rape is viewed more as an act of power than a sexual act, then we can examine marital rape by focusing on the power dynamics of the family.

Further, Goode has stated that all social systems depend on force or its threat, and that the family is no exception[19]. Goode goes on to propose that the more resources an individual has, the more force s/he can command, but the less s/he will use that force. On the other hand, the fewer resources an individual has, the less force s/he can command, but the more s/he will use the force. Goode theorizes that men who lack sufficient resources to hold the socially prescribed dominant role in the family will use physical force to compensate for the lack of resources.

If Goode's resource theory of family violence is correct, then we can predict that men who command limited social/psycho logical, and verbal resources are likely to use more force on their wives than men who are well educated, hold prestigious jobs, and earn a respectable income [20]. So, if rape is viewed as an act of violence and an act of power, we could deduce that men who have few social and psychological resources are likely to use an act such as marital rape to intimidate, coerce, and dominate their wives.

Rape of wives might grow out of a husband's lack of verbal skills and an inability to argue equally with his wife, or it might be a means of the husband demonstrating how he can dominate his wife despite the fact that he is poorly educated or unemployed. In addition, since rape can be a degrading experience, some husbands may use this act to humiliate their wives and thus gain a degree of power and control over their spouses.

Historical View: Origin
Rape is an outcome of power relations. At the heart of the power relations is, always, the recognition of some as superior and others - inferior. The inferiority of women or at least the perception around it, is an inseparable part of all traditions. Thus, the subjugation preempted by the laws of the present day has a long ancestry - cutting across spatial boundaries and temporal limitations. It is manifested in the smriti (memoirs) of Manu (Manav Dharmashastra) from Ancient India.

For instance, it prescribes that:
women have no divine right to perform any religious ritual, nor make vows or observe fast[21]. Her only duty is to obey and please her husband and she will for that reason alone be exalted in heaven., (unlike men)[22]. In another display of such retrogression, it suggests that:
any woman violating duty and code of conduct towards her husband, is disgraced and becomes a patient of leprosy[23].

This dearth of recognition is starkly apparent in other traditions as well. According to the early Judeo-Christian tenets, rape is a legitimate means of acquiring wives. Florence Rush wrote that:
Judaism ordained that a bride could be legally acquired by contract, money, or sexual intercourse, but since the church eschewed materialism, sexual inter course emerged as the validating factor.

As early as the sixth century, Pope Gregory decreed that 'any female taken by a man in copulation belonged to him and his kindred.' And since copulation with or without consent established male possession of the female, vaginal penetration superseded all impediments[24]

The Birth Of Marital Exemption

The origin of the concept of a marital exemption lies in the assumption that by marriage a woman gives irrevocable consent for her husband to have sex with her any time he asks for it [25].
 This view was described by Sir Matthew Hale (1609-1676) when 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[26].

This implicated that once they have married each other, a spouse could no longer be charged with raping one's spouse, any more than be charged with raping oneself[27]. The concept of implied consent has formed the basis for common law marital rape exemption, which has protected the sexually abusive husbands from criminal prosecution[28]. This contract based 'irrevocable consent' theory has been accepted as a defining principle in states' marital rape laws[29].

Another principle which justifies the marital rape has its roots in property rights. In the past, a father could trade his daughter's virginity for economic or social gain from a prospective suitor. Husbands, too, had a property interest in their wives' fidelity[30]. Consequently, no legal basis existed to prosecute husbands for raping their own wives, since the husband infringed no man's property rights[31].

According to Blackstone's common law 'unities' doctrine, husband and wife gets merged into a single legal entity upon marriage, with the husband assuming complete control of their joint existence[32]. The unities doctrine thus legitimated the propertization of women through marriage.'[33]. Under this marital construct, 'a man could no more be charged with raping his wife than be charged with raping himself.'[34].

Perhaps Lawrence Friedman puts it best:
Essentially, husband and wife were one flesh; but the man was the owner of that flesh.'[35].

In some cultures, women's virginity has been considered as the property or the commodity[36]. This implicates that a woman is considered as the property of the father first and then upon marriage, she is the property of her husband[37]. Therefore, a man could not be prosecuted for raping his own wife because she was his possession[38].

Thus, when someone rapes someone's wife, this is essentially stealing a property and that is a women's sexuality. Moreover, in English customs, when a man used to claim a woman through rape, it was considered as stealing a father's property by raping his daughter. Therefore, rape laws were created to '…protect the property interests men had in their women, not to protect women themselves[39].

Thus, the concept of women as property has been the basis of current marital rape ideology and a reason of not criminalizing marital rape in their countries. This ideology can be traced back to the year of 1707 when English Lord Chief Justice John Holt described the act of a man having sexual relations with another man's wife as 'the highest invasion of property [40].

William Blackstone's Commentaries on the Laws of England (1765-1769) also provides that American and English laws used to follow the doctrine under which once a woman was married, her legal rights were subsumed by those of her husband. However, the U.S Supreme Court had ended this doctrine in the case of Kirchberg v Feenstra (450 U.S. 455 (1981) in which the court held that a Louisiana Head and Master law, which gave sole control of marital property to the husband, unconstitutional.

Arugement - How Historical Principles Of Marital Rape Exemption Are Not Valid Today

The formulation of marital rape exemption by Hale was relevant at times when marriage was the only case in which people were legally allowed to be sexually active. For most of the history of English common law, legitimate sexual activity was confined to marriage[41].

Extra-marital sexual acts-whether consensual or nonconsensual-were proscribed by laws on adultery and fornication. It is important to incorporate the criminalization of these other sexual acts into the analysis.

As Anne Coughlin recently argued:
'we cannot understand rape law unless we study the doctrine, not in isolation, but in conjunction with the fornication and adultery prohibitions with which it formerly resided and, perhaps, continues to reside[42].

Coughlin also warned that if our critique of modern rape jurisprudence is inattentive to the sexual proscriptions with which rape formerly coexisted, we may fail to articulate the precise forms that sexism previously assumed and thus, be unable to respond directly to the illiberal and/or antifeminist ways of thinking about sexuality presumably still indulged by those opposed to rape reform[43].

This doctrine's shape shifts if we view the spousal rape exemption in the light of broader proscription against fornication and adultery. Where the non-marital sexual activity was illegal, the rape immunity used to protect the husbands against charges by women with whom only they could have been sexually active.

So, it can be inferred that the rape immunity was not centrally about the formal status of marriage between husband and wife per se (except to the extent that marriage conferred legal authority for sexual activity), rather it was about the sexual activities between the parties. It would not be wrong to say that Hale's ongoing consent theory also lends support to this view.

Hale's analysis reveals the centrality of sexual relations to the immunity. Hale described that 'the wife hath given herself up in this kind unto her husband,' he was referring to giving 'her body to her husband,' as he stated two sentences later. According to Hale, the marriage provided the never-ending consent to sexual. So, according to Hale, upon marriage, she has necessarily given the never-ending consent to sexual activity.

Hence men who had gained legal sexual (through marriage) access to women could not be charged with raping them and men who had not previously gained legal sexual access to women, by contrast, could be charged with raping them. The law, therefore, protected men from being charged with sexually assaulting the only women with whom they could be legally sexually active.

It will be wrong to make that principle as a basis for giving marital rape exemption in today's statutes because at that time only marriage could make legal intercourse. Therefore, when the marital rape exemption developed, there were no legal intimate relationships besides those in marriage. Marital sexual relations comprised the whole category of legal intimate relations.

What CEDAW Suggests

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) saw the light of the day on 18th December 1979 – after it was adopted by the United Nations General Assembly. At the backend of the Convention, was the work done across three decades by the United Nations Commission on the Status of Women (UNCSW). The mandate of UNCSW was to monitor the situation of women and to promote women's rights.

Its work has been instrumental in bringing to light all the areas in which women are denied equality with men. The provisions which expressly or impliedly refer to the problem addressed in this paper are Article 5 and Article 16 of CEDAW.

Article 5 - Sex Role Stereotyping and Prejudice (Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979)[44]:

States Parties shall take all appropriate measures:
  1. To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;
  2. To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.

Article 16 - Marriage and Family Life (Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979)[45]:
  1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
    1. The same right to enter into marriage;
    2. The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
    3. The same rights and responsibilities during marriage and at its dissolution;
    4. The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
    5. The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
    6. The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
    7. The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
    8. The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

An appreciation of mentioned provisions of CEDAW indicates the position categorically taken against the violation of a woman's right to consent and her right to refuse sexual intercourse – which is integral to an individual's bodily integrity and sexual autonomy.

Demystifying Myths Of Marital Rape

Myths, both about sex in marriage and about the crime of rape, hinder mainstream acceptance of the pervasive reality of marital rape:
  1. First, many women feel duty-bound to submit to sex in marriage.
  2.  Second, many husbands believe they have an absolute right to sex on demand.
  3. Third, many individuals view marriage as constituting perpetual, even contractual consent.

Myths about marital rape pervade both our culture and our courts. Popular attitudes regarding consent, marital duty, and family privacy-as well as widespread ignorance of the complex dynamics of domestic violence and marital rape-present constant hurdles for prosecutors[46]

However, substantial reform must take place before prosecutors, judges, and the public fully accept marital rape as a serious crime. Marital rape prosecutions involve the intersection of three distinct aspects: the terms of the statute defining the crime; the methods utilized by prosecutors to debunk myths in the courtroom; and the tenacity of cultural misperceptions about marriage, rape, and domestic violence-particularly as reinforced by the media. Hence, reform efforts must address each of these interrelated elements.

Although rape is unquestionably traumatizing no matter who perpetrates it, prosecutors must counter the prevailing myth that wife rape is less traumatic than stranger rape and as a result deducing lesser punishment.

Russell's study bolsters this proposition:
Fifty-two percent of women raped by a husband or other relative reported experiencing long-term trauma as a result, as opposed to 39 percent of women raped by strangers[47].

In one unusual California opinion, the court in People v. Salazar (144 Cal. App. 3d 79) departed from traditional stereotypes about stranger and acquaintance rapes, observing that 'a person in a private residence, especially that of her attacker, is more vulnerable than a woman fending off a rapist in a car on a dark street or in a public restroom.' When the rapist is the father of your children, pays your rent, and provides your sole means of economic support, the vulnerability to attack increases, as does the trauma of rape. As Finkelhor and Yllo conclude: 'When you are raped by a stranger you have to live with a frightening memory. When you are raped by your husband you have to live with your rapist.'[48]

The Development Of The Unity And Separate Spheres

Although this 'implied consent' (Hale's theory) theory has been the most commonly invoked justification, two other theories - the 'unities' theory and the theory of 'separate spheres' have also served to justify the marital rape exemption [49].

This Section traces the history of the unities and separate spheres theories as they have developed in the context of marital rape.

The unities theory is derived from the feudal doctrine of coverture, or unity of husband and wife[50]. Sir William Blackstone [ Commentaries on the Laws of England, Volume 1 on p.343] articulated this unities doctrine in his Commentaries:
'By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated [into her husband]. The unities doctrine thus served to legitimate the propertization of women through marriage. Wives were viewed as their husbands' chattel, deprived of all civil identity[51].

Rape of an unmarried woman rendered her unmarriageable because her value to future husbands was destroyed while rape of a married woman brought disgrace upon her husband and family[52]. Men's acquisition of women as property was thus regulated by laws on rape. Against this background of laws prohibiting rape outside of marriage worked a social practice encouraging rape both within and prior to marriage.

The English customs of 'bride capture,' whereby a man staked his claim to a woman through rape, and 'stealing an heiress,' whereby a man kidnapped a woman into marriage, were ways for men to acquire valuable property and social status[53]. The law on marital rape served to complete the conceptual framework by establishing a man's sexual entitlement to a woman within the marriage contract. The marital rape exemption thus reinforced social practice, sanctioning female sexual subordination as a weapon in the struggle for power among men.

Women's legal status began to change. Yet these reforms, although altering the status of women in the legal and economic spheres, were not conceived in the spirit of equal rights. Rather, the Acts reflected the development of a separate spheres ideology, which gradually displaced the unities theory as the legal justification for sexual inequality[54]. Under this vision of social relations, men inhabit the public realm of politics and the marketplace and women inhabit the private realm of the family.

Women were no longer naturally inferior, but naturally different[55]. In a case of Bradwell v. Illinois [83 U.S. (i6 Wall.) I30, I4I (I872)] it was held that they were free to fulfill 'the noble and benign offices of wife and mother.' As Justice Bradley stated in the same case that 'the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.

The separate spheres ideology helped shape the notion that any legal intrusion upon the woman's sphere constituted an illegitimate public invasion of the private sphere. The private subordination of women was therefore accomplished by the absence of laws restraining male power[56]. In this unregulated private sphere, men were free to oppress women. Specifically, they were free to rape their wives.

The vitality of the marital rape exemption, however, testifies to the continuing influence of this ideology on the formation of legal doctrine[57]. The contemporary rationales for the marital rape exemption exhibit an underlying adherence to the notions of female inferiority and female difference. Although legislators and judges do not explicitly refer to women as chattel or to women's natural role in the home, the rationales for the marital rape exemption, betray deep, perhaps unconscious, discriminatory views[58].

Why It Should Be An Offence

Bertrand Russell 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.'[59].

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[60].

Rape degrades the bodily integrity of the victim and leaves a long-lasting stigmatizing effect. Marital rape, the most private of all, shares some of the particular characteristics of genocidal rape in Bosnia: it is repetitive, brutal, and exacerbated by betrayal; it assaults a woman's reproductive autonomy, may force her into hiding, to flee her home and community, and is widely treated as legitimate by law and custom[61].

The lasting terror and shame of rape may change the psychological as well as physical landscape of a woman's life. Violation by a state official or enemy soldier is not necessarily more devastating than violation by an intimate. Whether it is rape by a stranger or by a spouse, it is a grave violation of women's rights. Until it is stopped, it will continue to be an expression of male domination and misogyny, a tool to terrorize and subordinate women.

One must not forget that like torture, a rape has many forms, it occurs in many contexts and has different repercussions on different victims. Also, under the Geneva Conventions, the concept of honor is somewhat more enlightened: rape is a crime against the honor and dignity of women[62].

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. Men use threats of abandonment, seeking sexual gratification elsewhere, remarriage and quarrel to force sex upon wives early in marriage[63]. The norm of the states to imply consent in marital rapes is irrational.

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[64]. 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.

The limited or no liability of perpetrator in case of marital rape is starkly apparent even in a cursory view of the mentioned legal provisions. 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.

The Gender Discrimination Approach[65]

The marital rape exemption can be either gender-based or gender neutral, depending upon the language used to define rape.
  • A rape statute that defines rape to exclude unconsented-to intercourse with 'the wife' of the actor (a nonreform statute) is gender-based.
  • A rape statute that defines rape to exclude unconsented-to intercourse with 'the spouse' of the actor (a reform statute) is gender-neutral.
Both gender-based and gender-neutral marital rape exemptions discriminate against women in violation of the equal protection clause. In case of former, the exemption fails to withstand intermediate scrutiny under the equal protection clause. In case of latter, the exemption masks intentional discrimination against women.

The defense given are postulated through following:
  1. Fostering Marital Harmony and Intimacy:
    The most compelling modern rationale behind the marital rape exemption is fostering marital harmony and intimacy by protecting the privacy of the marital relationship. This rationale, however, falsely assumes all marriages are true to the ideal conception of the harmonious and intimate nature of marital relations. Statistics such as those on marital violence undermine the legitimacy of this ideal. The state has no interest in preserving a deteriorated marriage, and marital rape is one of the strongest signs of such deterioration. Rape itself disintegrates the marriage; a wife's criminal complaint testifies to the absence of marital harmony and intimacy.
  2. Encouraging Reconciliation of Spouses:
    A second rationale advanced for the marital rape exemption is that of encouraging the reconciliation of the spouses. This rationale, however, also falls short under intermediate scrutiny. It is the violent act of rape and not the subsequent attempt of the wife to seek protection through the criminal justice system which 'disrupts' a marriage[66]. In reality, reconciliation in the context of marital- rape is often a stage in the cycle of psychological dependence upon a violent abusive husband. This rationale accepts the view that the harmful effects of marital rape are somehow mitigated by prior sexual acts, that intimacy serves to soften the blow. By adhering to the notion that prior consent nullifies the brutality of rape, this view distorts the reality of such an experience for its victims.
  3. Overcoming Evidentiary Difficulties:
    A third rationale addresses the evidentiary difficulties in proving lack of consent in the prosecution of marital rape claims. This view, rooted in a fear that wives will threaten their husbands with fabricated rape claims to avenge personal wrongs or to extort large property settlements upon divorce, reflects a profoundly discriminatory attitude towards women. The element of consent in rape is always difficult to prove. Yet it has never been suggested that the criminal offense of 'stranger rape' be eliminated due to the difficulties of proof posed by a consent standard. In addition, the evidentiary rationale ignores reality. There is no reason to believe that false charges of rape are brought more often than false charges of any other crime.

In fact, women in general and wives in particular are deterred from bringing legitimate complaints of rape by the social stigma associated with such a charge.
Every law can be misused and therefore, if we accept the above argument, it would simply mean not having any law at all. Moreover, this cannot be taken as an excuse by state to let the criminal scot-free. The stigma associated with rape trials might be immeasurable but not inexplicable, which in turn implies that it can only be extremely ignominious circumstances – compelling a married woman to seek judicial intervention.

The frivolity of last argument is revealed in multiple researches and studies establishing that acquaintance rape is as devastating as stranger rape, if not more. Therefore, it is evident that all arguments against criminalization are basically to protect the hegemony of men. Acceptance of such arguments would only convey the archaic and patriarchal notions of subjugation of women.

Formal Neutrality On Marital Status In Sexual Offenses

States must observe that the women are paying an intolerable cost due the doctrine of ongoing consent. To achieve the formal neutrality on the marital status of parties, states must abolish this current marital immunity and must abolish the criteria of providing preference to married men who sexually abuse their wives.

It is important to note that drugging a wife to have sex with her is not an uncommon weapon in today's world. In the case of Trigg v State (759 So. 2d 448), for example, a man laced his wife's food with half a bottle of anti-depressants, rendering her unconscious and he orally and digitally penetrated her as he videotaped the episode. The use of drugs, beating or choking is commonly used as physical force to deprive women of their strength.

As a matter of principle, the argument in favor of the marital exemption for mental incapacitation or unconscious rape ignores or greatly undervalues a married woman's sexual autonomy-her freedom to decide whether and when to engage in intercourse. Every woman must have the right to reserve her body for her own ends and not to be used as an object for someone else's gratification.

Hilf argues, however, 'A married person has, to some extent, a lesser expectation of personal autonomy; therefore, the affront to one's autonomy is less in the case if spousal rape than in the case of ordinary rape[67]. We accept that married individuals may have lesser expectations of autonomy, but it is difficult to swallow in today's world that a woman's autonomy should be sacrificed to the sexual desire of husband.

A man's wish for an orgasm cannot be above the wife's interest in avoiding the unwanted intercourse. The irrational view that unconscious rapes are not harmful clearly indicates the denial of the consequences of unwanted penetration for a woman. For instance, it takes out the power of woman to convey the need of use of contraceptives to prevent pregnancy and disease. Rape without consent indeed degrades the bodily integrity of woman even if the man uses contraceptives. Women's dry orifices are not permeable. To penetrate them takes force that may bruise, tear, and otherwise damage tissue[68].

Many scholars argue that these kinds of sexual offences are not harmful enough for the justice system to bring them into criminal offences. The doctrine of ongoing consent in marriage makes it less harmful. However, the research has indicated that marital rape is as harmful to victims as stranger rape. Marital sexual attacks are more likely than stranger sexual attacks to end in completed rapes rather than attempted rapes[69]. Wife rape victims are more likely than victims of acquaintances or strangers to be raped orally and anally. Contrary to popular opinion, wife rapes tend to be more violent than stranger rapes[70].

Two main proposals for reform of the marital rape exemption have emerged over the past thirty years: the argument that states should simply abolish the marital immunities in their sexual offense statutes and the argument that states should add an explicit provision on marital status in their sexual offense statutes declaring that men may be prosecuted for raping their wives.

Many scholars who are against the removal of marital exemptions argue that it would destroy the sacrosanct institution of marriage and may disturb the balance of obligations and conjugal rights in a marriage. It would have a severe impact on the right to privacy as state would be considered as an interventionist. It may encourage the offence of adultery as the husband would find woman to satisfy his sexual needs.

These arguments are suffering from many flaws. A marriage in which wife has no say to protect her body is not worth being preserved removing the exemptions would only balance the powers of both the parties. The argument of state cannot be an interventionist cannot be an excuse to let a crime happen and not to protect the woman's sexual autonomy.

Ongoing Consent As A Hindrace In Bringing Changes To Today's Statutes

According to some scholars the doctrine of ongoing consent comes into effect when a woman gives consent to sexual intercourse with a man and remains there to future sexual acts also. Since, in some countries' statutes because the marriage implies a generalized consent by wife, there is requirement of divorce or separation before such act comes into criminal offence. Without such divorce or separation, there is an implied consent to every sexual act.

In the real world, however, many women who experience rape in marriage are battered and remain with their abusers for complicated reasons other than 'generalized consent' to sexual relations in the future.'[71]. Battered women are especially vulnerable to wife rape[72]. Studies indicate that between one-third and one-half of battered women have been raped one or more times by their batterers[73].

A woman who is raped by her husband may stay with him because she has nowhere to go, she may want to provide stability for her young children, or she may feel love for her husband, despite his sexual abuse[74]. Many victims of wife rape are financially unable to leave[75].

A number of victims are told by family, friends, religious leaders, or health professionals that they should stay. ' In fact, sexual abuse as well as other physical abuse frequently increases when women do declare their intention to leave or actually leave their spouses.'[76].

Having been raped is associated with 'significantly more serious physical violence in terms of the severity and frequency of the aggression as well as the severity of the resulting injuries[77]. Without divorce or separation, these battered wives who are raped face psychological and physical torture. Due to these reasons, we appeal that there should be no requirement of separation or divorce to make it a criminal offence.

A number of scholars have argued that states should do more than remaining silent; they should insert new provisions into their sexual offense's statutes that explicitly authorize the prosecution of spouses[78]. A statutory framework might criminalize marital rape by defining rape as 'an act of sexual intercourse accomplished with a person including the spouse of a perpetrator (Hastings Law[79]. This provision will remove the marital exemptions by providing that marriage will not be a hindrance to prosecution.

Jurisdictions have enacted two kinds of analogous statutes: prosecutorial 'allowance' codes and 'no defense' codes. The 'allowance' codes explicitly authorize the prosecution of men who rape their wives. The codes of the District of Columbia, Michigan, New Hampshire, New Jersey, North Carolina, and Wisconsin in United States of America contain such specific provisions (D.C. CODE ANN. § 22-419 (2002), Mich. Comp.Laws ANN. § 750.5201 (West 2002), N.J. STAT. ANN. § 2C:14-5(b) (West 2002), N.C. GEN. STAT. § 14-27.8 (2002)).

North Carolina's code, for example, states that prosecution for sexual crimes is not dependent upon the relationship between the offender and the victim:
A person may be prosecuted under this Article whether or not the victim is the person's legal spouse at the time of the commission of the alleged rape or sexual offense[80]. Further the Codes in New Jersey, Wisconsin, and the District of Columbia state that a husband 'shall not be presumed to be incapable of violating' a sexual offense provision[81].

While we enlist some of the path breaking provisions in certain jurisdictions, no analysis can be shorn of the reality. The reality of ill-founded recognition which subverts the opportunities that are at the avail to the women. It degrades their existence to ersatz, even within that limited space.

At this point, it is imperative to understand that Lex Feranda has, as its components - Lex Lata & social reality. A law can be held commensurate against pervading anomalies only if it incorporates the social reality. Such incorporation, only, can make a legal framework 'empirical' – non-appreciation of which is the problem fissuring modern day justice administration.

[1] M. FOUCAULT, Two Lectures. Power/Knowledge, 78 (1980)
[2] Andrew J. Schmutzer. The Long Journey Home: Understanding and Ministering to the Sexually Abused 76 (Wipf and Stock Publishers, 2011).
[3] Linda Fairstein, Sexual Violence: Our War Against Rape 129-136 (Penguin Group (USA), 1995).
[4] Lisa R. Eskow, The Ultimate Weapon? Demythologizing Spousal Rape and Reconceptualizing Its Prosecution, 48(3) Stanford Law Review 677-709 (1996)
[5] Ibid at 684
[6] Andra Media & Kathleen Thompson, Against rape 12 (New York: Farrar, Straus, and Giroux, 1974)
[7] R. A. Gussi Levine, Sex Offenses: A Study in Social Control, 61 American Anthropologist 965-990 (1959)
[8] Richard J. Gelles, Power, Sex, and Violence: The Case of Marital Rape, 26(4) The Family Coordinator 339–347 (1977)
[9] D. L. Gillespie, Who has the power? The marital struggle', 33 Journal of Marriage and the Family 445-458 (1971)
[10] David Cheal, Family: Critical Concepts in Sociology 401 (Psychology Press, 2003)
[11] Supra note 8 at 340.
[12] Richard J. Gelles, Family Violence, 84 SAGE Library of Social Research 137 (SAGE Publications,1987)
[13] V. Vigneswar and M. Kannappan, A Study on Constitutional Validity of Marital Rape in India with Special Reference to Sec 375, 119(17) International Journal of Pure and Applied Mathematics 1435-1449 (2018)
[14] Ibid at 1438.
[15] Stephen T. Holmes and Ronald M. Holmes, Sex Crimes: Patterns and Behavior 232 (SAGE Publications 2008)
[16] Supra note 12 at 139
[17] Ibid at 126
[18] Ibid at 139
[19] The Family and the Law, 26(4) Special issue (Family Coordinator), National Council on Family Relations 342 (1977)
[20] Supra note 8 at 342.
[21] Ian S. Markham and Christy Lohr Sapp, A World Religions Reader 94 (John Wiley & Sons, 2020)
[22] Ibid at 94
[23] Ramaswamy,
[24] Florence Rush, The Best Kept Secret: Sexual Abuse of Children 32 (Human Services Institute, 1980)
[25] Jonathan Herring, Family Law: A Very Short Introduction 35 (OUP Oxford, 2014)
[26] Mathew Hale, The History of the Pleas of the Crown: In Two Volumes, Vol. 1, 49 (1800)
[27] Kersti Yllö, M.G. Torres (eds.), Marital Rape: Consent, Marriage and Social Change in Global Context) 177-186 (Oxford University Press, London, 2016)
[28] Nancy K.D. Lemon, Domestic Violence Law 444 (American casebook series domestic violence law, 2001)
[29] Augustine, Marriage: The Safe Haven for Rapists, 29 Journal of Family Law 559, 562 (1990-1991)
[30] Jaye. Sitton, Comment, Old Wine in New Bottles: The 'Marital' Rape Allowance, 72 N.C. L. REV. 261, 265 (1993)
[31] Ibid at 265
[32] Nancy K. D. Lemon, Domestic Violence Law 444 (American casebook series. Domestic Violence Law, West Group, 2001)
[33] Note, To Have and To Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv. Law Review 1256 (1986)
[34] Kresti Yllo and Torres (eds.), Marital Rape: Consent, Marriage, and Social Change in Global Context 178 (Oxford University Press 2016)
[35] Lawrence M. Friedman, A History of American Law: Third Edition 146 (Touchstone, 2005)
[36] Kersti Yllö, M.G. Torres (eds.), Marital Rape: Consent, Marriage and Social Change in Global Context. 2 (Oxford University Press, London, 2016)
[37]Ibid at 3
[38] Kersti Yllo and M. Gabriela Torres, Marital Rape: Consent, Marriage, and Social Change in Global Context 20 (Oxford University Press, 2016)
[39] Robin West Caring for Justice 140 (NYU Press 1999)
[40] Samuel H. Pillsbury Judging Evil: Rethinking the Law of Murder and Manslaughter 149 (NYU Press 1861)
[41] Matthew Hale, The History of The Pleas of The Crown 629 1736, 629 (Robert H. Small ed., 1st Am. ed. 1847)
[42] Anne M. Coughlin, Sex and Guilt', 84 Virginia Law Review 7-8 (1998)
[44] Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979, See at
[45] Ibid.
[46] Lisa R. Eskow, The Ultimate Weapon? Demythologizing Spousal Rape and Reconceptualizing Its Prosecution 48(3) Stanford Law Review 677-709 (1996).
[47] Ann Wobert. Burgess, 1985. Rape and sexual assault: a research handbook (Garland reference library of social science) Volume 1 of Rape and sexual assault: a research handbook / Ann Wolbert Burgess, ed Volume 1 of Rape and Sexual Assault, Ann Wolbert Burgess), Garland Pub at 155 (1985).
[48] David Finkelhor & Kersti Yllo, License to Rape: Sexual Abuse of Wives 138 (Simon and Schuster, 1987)
[49]Supra note 33 at 1255-73
[50] Jannifer Temkin, Rape and the Criminal Justice System, The International Library of Criminology 250 (Criminal Justice and Penology Series, 1995)
[51] Ibid at 250.
[52] Schiappa, Edward Defining Reality: Definitions and the Politics of Meaning 55 (SIU Press, 2003)
[53] Jannifer Temkin, Rape and the Criminal Justice System 251 (Dartmouth, 1995)
[54] Ibid at 251
[55] Ibid at 251
[56] Supra note 53 at 252
[57] Ibid at 252
[58] Ibid at 252
[59] Marion Carson, Human Trafficking, The Bible and the Church 69 (SCM Press, 2017)
[60] Hughes, Conrad, Understanding Prejudice and Education: The challenge for future generations (Routledge, 2016)
[61] Nicole A. Dombrowski, Women and War in the Twentieth Century: Enlisted with or without Consent 257 (Routledge, 2004)
[62] Catherine Besteman, Violence: A Reade 196 (NYU Press, 2002)
[63] Shireen J. Jeejeebhoy, Iqbal Shah, and Shyam Thapa, Sex Without Consent: Young People in Developing Countries (Zed Books Ltd, 2013)
[64] Catharine A. MacKinnon, Toward a Feminist Theory of the State 174 (Harvard University Press, 1989)
[65] Supra note 33 at 1267
[66] Sara P. Schechter, New York Family Law 58 (Cengage Learning, 2012)
[67] 54 The Hastings Law Journal, Hastings College of Law 5-6 (2003)
[68] Ibid at 1508
[69] Supra note 38 at 182
[70] Supra note 67 at 1509
[71] Ibid at 1502
[72] Supra note 38 at 182
[73] Ibid at 182
[74]Ibid at 182
[75] Ibid at 182
[76]Ibid at 26
[77] Supra note 67 at 1505
[78] Ibid at 1533
[79] Ibid at 1533
[80] Wilbur R. Miller, The Social History of Crime and Punishment in America: A-De 1505 (2012)
[81] Supra note 67 at 1534

Written By:
  1. Ravi Singh Chhikara - LL.B, Campus Law Centre, University of Delhi.
  2. P Vivek Ilawat - LL.B, Campus Law Centre, University of Delhi.

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