History of rape One of the origins of the concept of a marital exemption from rape laws a rule that a husband cannot be charged with the rape of his wife is the idea that by marriage a woman gives irrevocable consent for her husband to have sex with her any time he demands it. Also, American and English law subscribed until the 20th century to the system of coverture , that is, a legal doctrine under which, upon marriage, a woman's legal rights were subsumed by those of her husband.
Feenstra , U. Marriage was traditionally understood as an institution where a husband had control over his wife's life; control over her sexuality was only a part of the greater control that he had in all other areas concerning her. A husband's control over his wife's body could also be seen in the way adultery between a wife and another man was constructed; for example in , 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".
Rape as a crime was constructed as a property crime against a father or husband not as a crime against the woman's right to self-determination. The property to be withheld in a female was her virginity; this was the commodity Bergen, Following this line of logic, a woman was and still is in many cultures across the globe first the property of her father, then, upon marriage, the property of her husband Bergen, Therefore, a man could not be prosecuted for raping his own wife because she was his possession Schelong, However, if another man raped someone's wife, this was essentially stealing property a women's sexuality Bergen, In English customs, "bride capture" a man claiming a woman through rape was thought to be 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" Schelong, This concept of women as property permeates current marital rape ideology and laws throughout the globe. Following this logic, if consent is not part of marriage, then it is not necessary for intercourse.
The autonomy of the wife is also often compromised in cultures where bride price is paid. Under customary law in certain parts of Africa, forced sex in marriage was not prohibited, although some specific circumstances, such as during advanced pregnancy, immediately after childbirth, during menstruation, or during mourning for a deceased close relative, were recognized as giving the wife the right to refuse sex.
This can be seen in English common law , in force in North America and the British Commonwealth , where the very concept of marital rape was treated as an impossibility. Rape in English law Sir Matthew Hale's statement in History of the Pleas of the Crown did not cite any legal precedent though it likely relied on earlier standards. In a case of Lord Audley's — , for instance, his citation of the jurist Bracton c.
Marriage created conjugal rights between spouses, and marriage could not be annulled except by a private Act of Parliament—it therefore follows that a spouse could not revoke conjugal rights from the marriage, and therefore there could be no rape between spouses.
The principle was framed as an exemption to the law of rape in an English courtroom in R v Clarence,  but it was not overturned until by the House of Lords in the case of R. R in ,  where it was described as an anachronistic and offensive legal fiction. Feminist critique in the 19th century[ edit ] From the beginnings of the 19th century feminist movement , activists challenged the presumed right of men to engage in forced or coerced sex with their wives.
In the United States , "the nineteenth-century woman's rights movement fought against a husband's right to control marital intercourse in a campaign that was remarkably developed, prolific, and insistent, given nineteenth-century taboos against the public mention of sex or sexuality. Gove Nichols, joined a critique of marital rape to advocate women's autonomy and sexual pleasure.
De Cleyre defended Harman in a well-known article, "Sexual Slavery. He 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.
Feminists worked systematically since the s to overturn the marital rape exemption and criminalize marital rape. This establishes marital rape as a human rights violation. The importance of the right to self sexual determination of women is increasingly being recognized as crucial to women's rights. In many countries, married women may not refuse to have sexual relations with their husbands, and often have no say in whether they use contraception.
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. In , the UN Secretary-General's in-depth study on all forms of violence against women stated that page Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 do not exempt marital rape from general rape provisions. Marital rape is not a prosecutable offence in at least 53 States.
Four States criminalize marital rape only when the spouses are judicially separated. Four States are considering legislation that would allow marital rape to be prosecuted. In Pursuit of Justice stated that page Traditionally, rape was a criminal offense that could only be committed outside marriage, and courts did not apply the rape statutes to acts of forced sex between spouses.
With changing social views, and international condemnation of sexual violence in marriage, courts have started to apply the rape laws in marriage. The current applicability in many countries of rape laws to spouses is currently unclear, since in many countries the laws have not been recently tested in court.
In some countries, notably jurisdictions which have inherited the Indian Penal Code such as Singapore , India , Bangladesh , Sri Lanka , Burma and some countries in the Commonwealth Caribbean region, the laws explicitly exempt spouses from prosecution for instance, under the Indian Penal Code, which has also been inherited by other countries in the region, the law on rape states that "Sexual intercourse by a man with his own wife is not rape".
Whoever compels a woman to submit to sexual intercourse outside wedlock, whether by the use of violence or grave intimidation, or after having rendered her unconscious or incapable of resistance, is punishable with rigorous imprisonment from five years to fifteen years".
Another example is South Sudan , where the law states: It also provided a definition of violence against women, and gave a list of non-exhaustive examples, including marital rape see section "Definition" para 1. Although the approach on the issue of violence against women has varied significantly among European countries, the traditional view that acts of violence against a woman are crimes against honor and morality, and not against the self-determination of the woman, was still prevalent in the s in many countries.
A report produced by Amnesty International ,  described Danish laws on sexual violence as "inconsistent with international human rights standards",  which has led to Denmark eventually reforming its sexual offenses legislation in There are many examples from past practice in Council of Europe member states that show that exceptions to the prosecution of such cases were made, either in law or in practice, if victim and perpetrator were, for example, married to each other or had been in a relationship.
The most prominent example is rape within marriage, which for a long time had not been recognised as rape because of the relationship between victim and perpetrator. Canada ,   New Zealand , and Ireland In Switzerland marital rape became a crime in  and became a state offense in . In Spain , the Supreme Court ruled in that sex within marriage must be consensual and that sexuality in marriage must be understood in light of the principle of the freedom to make one's own decisions with respect to sexual activity; in doing so it upheld the conviction of a man who had been found guilty of raping his wife by a lower court.
The country has been made the object of international criticism in regard to its approach towards violence against women. In , the Brussels Court of Appeal recognized marital rape and found that a husband who used serious violence to coerce his wife into having sex against her wishes was guilty of the criminal offense of rape.
The logic of the court was that, although the husband did have a 'right' to sex with his wife, he could not use violence to claim it, as Belgian laws did not allow people to obtain their rights by violence. It would appear, however, that to the extent that the marital rape exemption exists, it is confined to circumstances where the spouses are cohabiting and there are no separation proceedings in being, or even, perhaps, in contemplation.
In the Court convicted a man of the rape of his wife, stating that the presumption that spouses have consented to sexual acts that occur within marriage is only valid when the contrary is not proven. Female ministers and women's rights activists lobbied for this law for over 25 years. Before a new Criminal Code came into force in ,  the law on rape in Bosnia and Herzegovina also contained a statutory exemption, and read: Although Italy has a reputation of a male dominated traditional society, it was quite early to accept that the rape law covers forced sex in marriage too: It entered into force on 24 October This legislation also prohibits numerous other forms of violence within marriage and cohabiting relations, and various other forms of abuse of women.
One opponent of the law was legal scholar Taweekiet Meenakanit who voiced his opposition to the legal reforms. He also opposed the making of rape a gender neutral offense. Meenakanit claimed that allowing a husband to file a rape charge against his wife is "abnormal logic" and that wives would refuse to divorce or put their husband in jail since many Thai wives are dependent on their husbands. Thus, marital rape is not a criminal offense under the IPC.