Marital Rape
Marital Rape or Spousal Rape pertains to a form of rape that happens in a marriage between the married couple (Russell, 1990). For the reason that it is traditionally believed that when the couples entered a marriage, they both surrender themselves to each other, the law has been unhurried in criminalizing this form of sexual abuse committed during the marriage.
In the Western region, marital rape is a crime and thus punishable by law. Yet, in some parts of the region, marital rape is qualified into different forms such that marital rape is not considered a crime when the assault happened at the time wherein the couples were still living together.
The place or status of marital rape or spousal rape is not really being held as equivalent to the case of real rape – that which the victim is not married to the perpetrator of the crime. Thus, many believe that marital rape is not that traumatic if it would be compared to that of real rape (Brownmiller, 1993).
Nevertheless, sociological studies and researches such as the study conducted by Finkelhor and Yllo on 1985 and Bergen on 1996 showed that the marital rape’ victims experience more and long-term trauma as contrasted with the real rape (wherein the victim and the perpetrator are in a way stranger to each other) (Bergen, 1996). And due to the fact that marital or spousal rape was not yet being recognized by the law as a crime, the victim who suffered it tended to endure it for the rest of victim’s life.
The consideration on the issues of domestic violence paved the way for the deliberation on the case of marital rape. They finally realized that marital rape really occurred in a marriage and removed the traditional belief that whatever happens in a marriage is a product of consent between the husband and the wife.
Historical Background
Traditionally, it was believed that there was such a thing as couples’ conjugal right to sexual intercourse with each other thus making the belief that a man or a woman has the right to have sexual intercourse with his or her partner as he or she wishes (Finkelhor, 1987).
The Christian teachings suggests the same line of argument which says that the woman’s body upon entering a marriage is not anymore owned by her alone but is owned by her husband; and the same thing goes for the husband in which he has no sole authority over his body for his wife has a shared rights for it (Finkelhor, 1987). Such interpretation is reflected in the common law that is implemented in North America as well as the British Commonwealth. The two regions held that it is not possible that there would be a marital rape in a marriage. The most common interpretation was that, as stated earlier, both the husband and the wife have surrendered their bodies to each other and have given consent to the supposed conjugal rights to sexual intercourse.
The Declaration on the Elimination of Violence against Women which was published by the United Nations High Commissioner for Human Rights in December 1993. This unswervingly made marital rape as a direct violation against human rights. However, not all UN members agreed to the provision declared by the UN Human Rights Council. In fact, in 1997, there were only seventeen member-states that give consent to the criminalization of marital rape (Finkelhor, 1987).
Though many US rape laws that were employed to prevent the spousal trial in either the cases of alienated or even lawfully estranged couples, the criminalization for marital rape was finally enforced in the entire United States by the year 1993. Nonetheless, not all states took marital rape as a formal crime but mostly as a lesser crime.
Though there was also the same motivation that drove the Indian Legal System to include marital rape as a crime, many scholars attempted to prevent it for being implemented in India for the reason that such idea of marital rape was impractical. Among the notable opponents of the criminalization of marital rape was the scholar Tweekiet Meenakanit. He said that in Thailand, such provision would not be effective and feasible for the reason that the Thai wives were so dependent with their husbands and they feared that their husbands, upon their release from jail would seek vengeance against them (Bergen, 1996). Another concern was that, filing a marital rape by the husband against his wife is a form of abnormal logic for the reason that no man would really do such action. Among the countries that criminalize marital are Turkey, Thailand and Mauritius.
Yet, in England and Wales, the case of marital rape was abolished. The abolition of the marital rape as a criminal offense was disregarded by the House of Lords in 1991 its legal power to amend and ratify laws and provisions (Finkelhor, 1987). The same arguments and interpretations drawn from the Christian teachings were used to back up the exemption of the marital rape. The abolition of the marital rape as a form of criminal offense was said to be inappropriate for the reason that sexual intercourse is part of the marriage agreement and that by criminalizing the perpetrator of the marital rape, such agreement undermines one of the very essences of matrimonial law.
Causes of Marital Rape
The most obvious cause of marital rape is the insistence of one partner to have a sexual intercourse against the unwilling partner (Russell, 1990). It is termed unwilling in a sense that it could be the case that a partner would not really say that he or she does not or does give consent to his or her partner but would merely express his or her disagreement through unwilling actions and behavior.
When one of the married couple does not give consent to have sexual intercourse with his or her partner, yet the other partner forces him or her to do so, this describes the commission of marital rape. The most fundamental issue in the topic of marital rape is the question of why a partner would say no to his or her partner and how would the other partner reacts against the refusal of his or her partner. Thus, consent plays a very important role as the most important factor that determines marital rape.
Why would a partner refuse to have sexual intercourse with his or her partner? According to sociological studies, a partner would be inclined to refuse to have sexual intercourse with his or her partner due to the following reasons: 1) the unwilling partner is not in capable to undergo a sexual intercourse primarily because of illness, 2) the unwilling partner has been regularly maltreated by his or her partner which causes his or her refusal to have sexual intercourse with him or her, and 3) other marriage problems (i.e. infidelity) (Brownmiller, 1993).
The Status Quo of Marital Rape
Throughout the paper, marital rape is not considered as a crime that can only be committed against the wife. It is consistently held in this paper that the husband could also be a subject of marital rape. However, such instances are very rare that some scholars suggest that marital rape should instead be contained in the accounts of violence against women.
Though many countries all over the globe recognizes marital rape as a criminal offense against human rights, the criminalization of it varies according to the cultural and regional influences and beliefs held by countries that consider marital rape. And such differences, such as cultural, regional, religious and other kinds of differences really matter in treating the case of marital rape. For this reason, the status of marital rape differs from region to region, from culture to culture, and from state to state.
References:
Russell, D. E. H. (1990). Rape in Marriage. (Rev Exp ed.). Indiana University Press.
Brownmiller, S. (1993). Against Our Will: Men, Women, and Rape. Ballantine Books.
Finkelhor, D. (1987). License to Rape. (Rep ed.). Free Press.
Bergen, R. K. (1996).Wife Rape: Understanding the Response of Survivors and Service Providers. (First ed.). Sage Publications, Inc.
