Spousal rape

Spousal rape, also known as marital rape, is non-consensual sex in which the perpetrator is the victim's spouse.

Research literature, particularly in the areas of incidence and effects, may extend the use of the term spousal/marital rape beyond married couples to include divorced/legally separated ex-spouses or unmarried cohabiting partners. Current state laws, however, tend to treat rape by ex-spouses or intimate partners as different than marital rape, and therefore, pragmatically equivalent to stranger rape.

In 2006, it was estimated that spousal rape could be prosecuted in at least 104 states (in four of these countries, marital rape could be prosecuted only when the spouses were judicially separated). In many countries it is not clear if spousal rape may or may not be prosecuted under ordinary rape laws. Several countries in Eastern Europe and Scandinavia made spousal rape illegal before 1970, but other countries from the Western World outlawed it much later, mostly in the 1980s and 1990s. In the US spousal rape is illegal in all 50 states; the first state to outlaw it was South Dakota in 1975, and the last North Carolina in 1993. Other developing countries have outlawed it in the 2000s.

In many countries, spousal rape is either legal, or illegal but widely tolerated and accepted as a husband's prerogative. In 1999, the World Health Organization conducted a study on violence against women in Tajikistan, surveying 900 women above the age of 14 in three districts of the country and found that 47% of married women reported having been forced to have sex by their husband. In Turkey 35.6% of women have experienced marital rape sometimes and 16.3% often.

Psychological damage
While rape by a stranger is highly traumatic, it is typically a one-time event and is clearly understood as rape. In the case of rape by a spouse or long term sexual partner, the history of the relationship affects the victim’s reactions. Marital rape is likely to be part of an abusive relationship. Trauma from the rape adds to the effect of other abusive acts or abusive and demeaning talk. Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.

Legal aspect
Historically, many cultures have had a concept of spouses' conjugal rights to sexual intercourse with each other. This can be seen in Common law, in force in North America and the British Commonwealth, where the very concept of marital rape was treated as an impossibility. This was illustrated most vividly by Sir Matthew Hale, in his 1736 classic legal treatise, Historia Placitorum Coronae, History of the Pleas of the Crown, where he wrote that such a rape could not be recognized since the wife "hath given up herself in this kind unto her husband, which she cannot retract."

20th and 21st century criminalization
As the concept of human rights has developed, the belief of a marital right to sexual intercourse has become less widely held. In 1965, Sweden altered its statutes so that husbands could be charged for raping their wives. In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women. This establishes marital rape as a human rights violation. This is not fully recognized by all UN member States. In 1997, UNICEF reported that just 17 States criminalized marital rape. In 2003, UNIFEM reported that more than 50 States did so. In 2006, the UN Secretary General found "Marital rape may be prosecuted in at least 104 States. Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 [sic] do not exempt marital rape from general rape provisions. Four States criminalize marital rape only when the spouses are judicially separated."

Countries which were early to criminalize marital rape include Poland (1932), Czechoslovakia (1950), the Soviet Union (1960), Denmark (1960), Sweden (1965), Norway (1971), and some other members of the Communist Bloc. The Israeli Supreme Court affirmed that marital rape is a crime in a 1980 decision, citing law based on the Talmud. Criminalization in Australia began with the state of New South Wales in 1981, followed by all other states from 1985 to 1992. Several formerly British-ruled countries followed suit: Canada (1982), New Zealand (1985), and Ireland (1990).

Many United States rape statutes formerly precluded the prosecution of spouses, including estranged or even legally separated couples. In 1975, South Dakota removed this exception. In 1993, North Carolina became the last state to remove the spousal exemption. However, as of 1999, 33 of 50 U.S. states regard spousal rape as a lesser crime [Bergen, 1999]. The perpetrator may be charged with related crimes such as assault, battery, or spousal abuse. There are other criminal charges that may be inapplicable to married couples. For example, in the U.S., there is a marriage exemption to the charge of statutory rape even if one of the spouses is under the age of consent in the jurisdiction where the sexual act takes place.

Germany outlawed spousal rape only in 1997, which is later than other developed countries. Female ministers and women's rights activists lobbied for this law for over 25 years.

In India, the Protection of Women from Domestic Violence Act 2005 (passed August 2005; entered into force October 2006) created a civil remedy for victims, but it did not criminalize marital rape, and jail time is only considered if a court order has been violated.

Thai legal scholar Taweekiet Meenakanit voiced his opposition to legal reforms that made spousal rape in Thailand a crime. He said it was "abnormal logic" to allow a man to file a rape charge against a woman. He also disagrees with making a crime of a husband raping his wife, on the grounds that this would be difficult to effect since many Thai wives were dependent on their husbands and would not want to divorce them or put them in jail.

Recent countries to criminalize marital rape include Turkey (2005), Mauritius (2007),, Ghana(1998/2007), Malaysia (2007), Thailand (2007), Tunisia (2008), Rwanda (2009), South Korea (2009), and Jamaica (2009). Human rights observers have criticized a variety of countries &mdash; including Japan, Poland, and Kazakhstan &mdash; for failing to effectively prosecute marital rape once it has been criminalized.

History of the exemption in England and Wales
The marital rape exemption was abolished in England and Wales in 1991 by the House of Lords, in its judicial capacity, in the case of R v R [1992]. The exemption had never been a rule of statute, having first been promulgated in 1736 in Matthew Hale’s History of the Pleas of the Crown, where Hale stated:

"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."

Hale's statement was not supported by any judicial authority but was believed to be a logical consequence of the laws of marriage and rape as understood at the time. Marriage gave conjugal rights to a spouse, and marriage could not be revoked except by private Act of Parliament &mdash; it therefore seemed to follow that a spouse could not legally revoke consent to sexual intercourse, and if there was consent there was no rape.

The principle was repeated in East's Treatise of the Pleas of the Crown in 1803 and in Archbold’s Pleading and Evidence in Criminal Cases in 1822, but it was not until R v Clarence (1888) 22 QBD 23 that the question of the exemption first arose in an English courtroom. Clarence was determined on a different point, and there was no clear agreement between the nine judges regarding the status of the rule.

The first attempted prosecution of a husband for the rape of his wife was R v Clarke [1949] 2 All ER 448. Rather than try to argue directly against Hale’s logic, the court held that consent in this instance had been revoked by an order of the court for non-cohabitation. It was the first of a number of cases in which the courts found reasons not to apply the exemption, notably R v O’Brien [1974] 3 All ER 663 (the obtaining of decree nisi), R v Steele (1976) 65 Cr.App.R. 22 (an undertaking by the husband to the court not to molest the wife) and R v Roberts [1986] Crim LR 188 (the existence of a formal separation agreement).

There are at least four recorded instances of a husband successfully relying on the exemption in England and Wales. The first was R v Miller [1954] 2 QB 282, where it was held that the wife had not legally revoked her consent despite having presented a divorce petition. R v Kowalski (1988) 86 Cr. App. R. 339 was followed by R v Sharples [1990] Crim LR 198, and the fourth occurred in 1991 in the case of R v J, a judgment made after the first instance decision of the Crown Court in R v R but before the decision of the House of Lords that was to abolish the exemption. In Miller, Kowalski and R v J the husbands were instead convicted of assault or indecent assault.

R v R in 1991 was the first occasion where the marital rights exemption had been appealed as far as the House of Lords, and it followed the trio of cases since 1988 where the marital rights exemption was upheld. The leading judgment, unanimously approved, was given by Lord Keith of Kinkel. He stated that the contortions being performed in the lower courts in order to avoid applying the marital rights exemption were indicative of the absurdity of the rule, and held, agreeing with earlier judgments in Scotland and in the Court of Appeal in R v R, that “the fiction of implied consent has no useful purpose to serve today in the law of rape” and that the marital rights exemption was a “common law fiction” which had never been a true rule of English law. R’s appeal was accordingly dismissed, and he was convicted of the rape of his wife.

Extent
In 1975, Diana E.H. Russell, a researcher into rape, conducted a study that found 74 of 644 married women (11.5%) of 930 women in a random sample (50% non-response rate) from San Francisco, California reported situations that were identified by the interviewers as constituting rape by husbands or ex-husbands. Russell concluded that when repeated instances within a marriage are included, rape in marriage was the most common yet most neglected area of sexual violence. A survey by the National Victim Center in Arlington, Virginia states that 10% of all sexual assault cases reported by women involved a husband or ex-husband.

David Finkelhor and Kersti Yllo's 1985 study estimated that 10 to 14 per cent of all married American women have been or will be raped by their husbands. (Finkelhor and Yllo, 1985)

In 1994, Patricia Easteal, then Senior Criminologist at the Australian Institute of Criminology, published the results of survey on sexual assault in many settings. The respondents had been victims of numerous forms of sexual assault. Of these, 10.4% had been raped by husbands or de facto spouses, with a further 2.3% raped by estranged husbands/de factos.

In the UK, statistics disseminated by the Rape Crisis Federation yield the information that the most common rapists are husbands, ex-husbands, or partners.

Young women from various settings in South Asia explained in surveys that even if they felt discomfort and didn't want to have sex, they accepted their husbands' wishes and submitted, fearing that otherwise they would be beaten. In many developing countries it is believed &mdash; by both men and women &mdash; 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. These women, most of them either illiterate or very poorly educated, are married at very young ages (in Bangladesh, for example, according to statistics from 2005, 45% of women then aged between 25-29 had been married by the age of 15 ), and depend on their husbands for their entire life. This situation leaves women with very little sexual autonomy. Often, when asked by their husbands to have sex, they are not in a position to refuse: they have to choose between unwanted sex and being subjected to violence; or between unwanted sex and being abandoned by their husbands and ending up living in abject poverty.

Problems in prosecuting spousal rape
There have been many problems with prosecuting the perpetrators of spousal rape, chief amongst them has been the reluctance of the various legal systems to recognize it as a crime at all. However, criminalization has opened a new set of problems. To take an example in the United Kingdom, such a category of rape was only recognized by a 1991 House of Lords decision known simply as R v R (1991 All ER 481). While most parties agreed with the House of Lords' motive in making the decision, there were many (for instance the writer Patricia Hirst in her Textbook on A-Level law) who were of the opinion that the decision involved post facto criminalization, since the House of Lords were imprisoning spouses for doing what was once, according to the law, their right.

The second problem arises on what can be called a procedural level. While the law in theory may hold no distinction between a spouse or any other person, in practice when the case comes to court there will be difficulties in proving that rape in fact took place. This is because in marriage, sexual relations are to be expected, and if the defense claims consent, then the evidential burden is a very difficult burden for the prosecution to discharge.

The very definition of consent can also lead to problems and deadlock, since social norms permit a varying level of physical intimacy (and freedom) depending on the relationship between the parties.

Countries that have made spousal rape a criminal offence
Albania, Andorra, Angola, Antigua and Barbuda, Argentina, Australia, Austria, Barbados, Belgium, Belize, Bhutan, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Cape Verde, Chile, China, Colombia, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Dominica, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Germany, Greece, Grenada, Guatemala, Guinea-Bissau, Hong Kong, Hungary, Iceland, India, Ireland, Israel, Macedonia, Japan (illegal but has never been prosecuted due to "technical implausibilities"), Lithuania, Malaysia, Malta, Mexico, Monaco, Montenegro, Namibia, Nepal, Netherlands, New Zealand, Norway, Philippines, Poland, Peru, Republic of the Congo, Romania, Russia, Serbia, South Africa, Spain, Sri Lanka (only when the couple has separated), Sweden, Taiwan, Trinidad and Tobago, Turkey, United Kingdom, United States, Uzbekistan, Zimbabwe

Countries that have not made spousal rape a criminal offense
Afghanistan, Bahamas, Brunei Darussalam, Ethiopia, Honduras, Kenya, Mongolia, Nigeria, Pakistan, Sri Lanka (except in cases of separation), Sudan, Yemen, Zambia