A marriage contract shouldn’t be a license to rape ones wife, yet in many parts of the world today it remains effectively that.
Far from being new, these developments form part of a long history of laws used to legitimize rape within marriage by exempting husbands from prosecution for raping their wives.
Historically, under British common law, husbands were exempted from prosecution for raping their wives based on the understanding that marriage meant implied consent to sex.The following 17th century statement of Sir Mathew Hale was considered authoritative and was subsequently also adopted into the common law of many other commonwealth countries:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
In addition to Hale’s rationale that marriage implied perpetual, un-retractable consent to sex, other rationales for the common law marital rape exemption were based on notions that at marriage a woman becomes the property/chattel of her husband, and that when two people marry, they become one, rendering marital rape impossible because a husband is incapable of raping himself.
Further historic rationales included the supposed evidentiary difficulties of proving lack of consent in an ongoing marriage relationship, the alleged propensity of women to lie about rape, and the argument that marital rape is less serious than rape outside of marriage.
In Britain, the marital rape exemption was abolished in the early 90’s following a Law Commission report strongly condemning the marital rape exemption, and a landmark 1991 House of Lords decision declaring that husbands’ immunity for rape within marriage no longer formed part of English common law.
According to the report, as of April 2011, only 52 countries had amended their legislation to explicitly make marital rape a criminal offence (including, for example Canada, Australia, Denmark, Turkey, Brazil, South Africa, and Rwanda); 127 countries have not yet taken this step.
In Kenya, the Sexual Offences Act, 2006 includes an explicit marital rape exemption, whereby the definition of rape is said not to apply in respect of persons who are “lawfully married” to each other.
In Ghana, until 2007 the Criminal Code, 1960 explicitly exempted husbands from prosecution for marital rape by providing that married women could not revoke their consent to sex, which was implied upon marriage. This spousal exemption was declared unconstitutional and removed from the Code during a statute review process in 2007. However, the current wording of the criminal law still leaves women vulnerable to the presumption that they have consented to all sex within marriage. This situation places a heavy burden on women to somehow prove that they revoked this consent prior to the sexual assault in question. Furthermore, although the Ghanaian Domestic Violence Act, 2007 criminalizes domestic violence, it does not specifically criminalize marital rape.
In Malawi, the Penal Code is silent on the issue of marital rape, however “unlawful carnal knowledge” (the term for rape in Malawi’s law) has been judicially interpreted to mean sex occurring outside of a marital relationship.
The equality effect’s “3 to be Free” project is working to address the legal impunity for marital rape in these 3 countries (Kenya, Ghana and Malawi) using 3 strategies: public legal education, policy reform, and litigation.
The failure to criminalize marital rape fosters a culture of impunity in which violence against women is state endorsed and socially accepted, and serves to maintain women’s inequality both within marriage and in the broader society. It means that marriage can provide a de facto license to rape with impunity— denying women equal protection of the law, and sustaining a culture of impunity which only serves to make women vulnerable to further violence.
The failure to treat marital rape as a prosecutable offense encourages an archaic understanding of women as chattels, having no separate legal existence and rights from their husbands. It suggests that rape by a woman’s husband is less reprehensible than by someone with whom she has not signed a marriage contract; and is an affront to women’s rights to freedom from violence, bodily integrity, self-determination, and autonomy.
The marital rape exemption has historically been based on discriminatory notions about women’s subordinate role in marriage; and legal impunity for marital rape both symbolizes and perpetuates these notions.
Research highlighted in the 2011-2102 UN report on the “Progress of the World’s Women” points to a positive correlation between the existence of domestic violence legislation, and rates of domestic violence, as well as social attitudes towards the same.
In addition to increasing women’s vulnerability to further violence, legal impunity for marital rape may also have the effect of increasing women’s vulnerability to the many health risks associated with sexual violence, including HIV/AIDS, a link that has been recognized and documented.
Extending the full protection of rape laws only to women who are raped by someone other than their husbands denies marital rape victims the full and equal protection of the law, a fundamental protection guaranteed under international human rights law.
The fact that many states have not explicitly criminalized marital rape, or worse, have statutory marital rape exemptions, is particularly troubling given that global statistics reveal that intimate relationships constitute the main site of women’s experiences of physical and sexual violence.
According to a WHO study, 35% of women worldwide have experienced either physical and/or sexual violence; and most of this violence is intimate partner violence. The study found that nearly a third of all women who have been in a relationship have experienced physical and/or sexual violence by their intimate partner.
Failing to unequivocally criminalize rape within marriage, therefore, amounts to a failure to address this violence in a context (i.e. marriage/intimate relationships) which should really be at the centre of efforts to address violence against women.
Some would argue that criminalizing marital rape will not guarantee lower rates of violence against women. While it is true that there can be no such guarantee, the state nonetheless has a duty to ensure that women are granted legal protection from this violence, which is a necessary first step towards addressing it.
The explicit criminalization of marital rape is a critical step towards promoting women’s rights and safety within marital/spousal relationships. It is recommended as a best practice by the UN Handbook for Legislation on Violence against Women and the Council of Europe.
The African Commission on Human & Peoples’ Rights and the UN Committee on the Elimination of Discrimination Against Women have also called on specific states to criminalize marital rape and all forms of violence against women.
While the proliferation of domestic violence legislation worldwide is certainly a positive and much-needed development, the explicit criminalization of marital rape needs to be central to these legal reform initiatives—ensuring that women’s rights are fully protected. Even within marriage.