Marital Rape

Marital rape, also known within law as Spousal rape, is the rape of a wife or husband by their own partner.

Whether marital rape is considered a crime depends on where you live in the world. Almost all developed countries, and many developing countries, recognise marital rape as being a crime, including, but not limited too: Argentina, Australia, Austria, Barbados, Belize, Bulgaria, Canada, Croatia, Cyprus, Denmark, Ecuador, the Fiji Islands, Finland, France, Georgia, Germany, Honduras, Hong Kong, Ireland, Israel, Macedonia, Mexico, Namibia, Nepal, The Netherlands, New Zealand, Norway, The Philippines, Poland, South Africa, Spain, Sri Lanka, Sweden, Taiwan, Trinidad and Tobago, the United Kingdom as a whole, the United States, Uzbekistan, and Zimbabwe.^[1] However, the degree that these countries consider the seriousness of the crime of marital rape compared to 'stranger' rape varies from country to country, and indeed state to state. While some countries and states consider that marital rape is not as serious a crime as other forms of rape, other countries and states hold it to be as serious a crime, or a worse crime, as incidence of marital rape is a strong indicator that other forms of domestic abuse are also taking place.^[2]

Marital rape and the law[edit]

Within history can be seen the concept that marriage includes within it conjugal rights. In Western culture this was often ascribed to the teaching of St. Paul:"Let the husband render to his wife the affection due her, and likewise also the wife to her husband. The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control.".^[3] As a result of this passage the concept of marital rape was considered to be an impossibility, and this was codified by Sir Matthew Hale in the 1736 publication of his work Historia Placitorum Coronae, History of the Pleas of the Crown. Within this work Hale wrote that marital rape could not exist: "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."^[4] However, it is important to note that Hale wrote this as a matter of legal opinion, not a finding of legal fact, and so technically this concept did not pass into common law, although judges treated this piece of opinion as if it had.

As a result of this, judges within the UK treated marital rape as an exception to the rape law until 1991. In 1991 the House of Lords, the highest national court in the UK, sat in judgement on an appeal lodged in the case of R v R [1992] 1 AC 599. At the heart of the case rested the question of whether one of the parties involved could have committed rape on the other party (the spouse) given that the two parties were married to each other. The judges found that what had been perceived as case law regarding marital rape had been made on the basis of Hale's opinion, and that the opinion in question wasn't precedence (as it wasn't the finding of legal fact within a case), then common law granted no exemption for marital rape within the provisions of the statute governing the crime of rape.

In the US marital rape was exempted from prosecution until 1976. In 1975 South Dakota removed the exception, and now all 50 states consider marital rape to be a crime, although not all states regard it as being as serious as other forms of rape. States that have no legal distinction between rape and marital rape include, but are not necessarily limited to Colorado, Delaware, Florida, Georgia, Indiana, Massachusetts, Montana, Nebraska, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Texas, Utah, Vermont, Wisconsin and the District of Columbia.^[1]

Opinions on Marital rape[edit]

Where people believe that marital rape is a crime, but not as serious a crime as rape by a stranger, there is often a belief that because the spouses are well known to each other forced intimacy within a marriage is not as traumatic an event as other forms of rape. Marital rape is difficult to define. Many wives see it as just a communication problem. Rape by a stranger, a highly traumatizing event itself, is usually a one-time occurrence. Marital rape occurs between partners that could have known each other for years and could be repeated. The wife may feel a sense of betrayal, and see the relationship coming to an end.^[2]

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