The Issue of Marital Rape - Research Paper Example

Marital Rape Introduction: Marriage is perhaps the first ever relationship created between a man and woman at the time of their creation and is based on love and respect of each other. It is the relationship present invariably in each society with a slight difference and is being followed by the human beings through every civilization of every age. However, the way modern society views the relationship of a man and a woman in a bond of marriage is very different from the one which was inherited for generations. Man who was considered an active partner in this bond is no more master of this relationship and woman is no more a passive partner who allows his husband to use her body for his sexual satisfaction as he pleases. Norms of the current age are based on equality and respect of each other while maintaining the status of equal partners. In legal and social parlance, it was believed that marriage was an institution in which sex between the partners is always legal irrespective of the fact that the woman is ready for it or nor. Man was allowed to use her lady and she was bound by his commands. There was no concept of sexual assault and rape in a marital relationship even a century ago. It is pertinent to note here that a law is an off shot of aspirations of the society in which its citizens decide that how they would view a balanced society and on which ground they would like to judge the other and to be judged. Historically, law –just like other segments of the society- was reluctant to admit any interpretation of forced sex in a marital relationship as a rape. Marriage was considered as a license for man to have sexual relationship with his wife even against her wish. But gradually, now society and the law have evolved otherwise. What is Marriage? Marriage is a knot between a man and woman, where both agree to live together for love and continuation of their family through their children. Marriage may be defined as “An agreement made in due course of law where a man and woman reciprocally decide to live with each other during their joint lives, in the union which ought to exist between husband and wife”1. Marriage is the relationship where cohabitation is not only for the purpose of sexual pleasure only but also for sharing love and grief, hot and cold, and to work for the comfort of life together. Institution of marriage: Institution of marriage is the oldest and the only permanent institution of any society. It was there when no other institution was there and till today, all the society posses it in one way or the other. Marriage as an institution many features; It regulates the function of sexual relationship in any society and minimizes the chances of irregular and illegal relationships between men and women. The other function is the continuation of family. Besides, it is a symbol of coexistence of life partners and their wish to move as a collective whole in the society. 2 Their economic activities are for the good of both husband and wife along with their children to create a family. It also ensures that care of the children is the collective responsibility of the parents. Marriage is, therefore, not all about sexual desires though sex is one of its major activities which cannot be denied. So, if it is one of the major functions of this institution then why only man was given the right to control sexual activity and why woman was considered a mere subject in the whole affair? Why, even today, man is reluctant to accept his wife as equal partner in this contract of marriage? The answer might be in the society, but in coming lines we will look into it through the evolutionary process of law and will come to the present dictum prevailing in law about legal sex in marital life viz a viz rape. Marriage- a relationship of love and respect: Society celebrates when two people decide to live together as husband and wife. All the societies and culture have their own ways to celebrate the same, but the common part of functions remains the jubilations and happiness. People pray according to their faith for love and respect in their relationship and wish them a happy married life. Similarly, society praises those couples who are in love and harmony in their relationship. It means that there is a substantial requirement of love and respect in the institution of marriage. When the partners are required to respect each other’s respective feelings in common way of life and love their partner then why not to respect their desire for sex as well. Both the partners are equal and respectable; therefore, they must be respected in equality. What would happen if it is missing? Parting of the ways, of course! Any attempt to disrespect the wife will cause hate and repulsion and any forced sexual activity will amount to rape. 3 However, its legal aspects are yet to be discussed in coming lines. But before doing such discussion it would be necessary to define marital rape. What is marital rape? A rape in most of legal definitions is described as an act of forced sexual attempt by a man against a woman (not his wife) against her will. Here we must have a look on definition of marital rape too. Marital rape, which is also known as spouse rape and wife rape, is an unwanted sexual act by a husband upon his legally wedded wife against her will. It means that to establish a fact of rape a lady has to prove that she in a legally wedded wife to the accused. This concept has gained much of strength from our societal tolerance toward an act of forced sex with a wife. Furthermore, religious concepts like a woman is not suppose to enjoy sex as deduced from Judo-Christian believes had also given impetus to such an inhuman treatment towards women in the society4. Impacts of marital rape: Impacts of marital rape are too far reaching than that of a rape itself. It is a condition where the victim is living in front of the very eyes of her criminal. Her self respect is damaged and mental torture is immeasurable. Who can think of that torture one has to bear on constant basis in form of humiliation, disrespect and disregard, but the victim of this heinous act herself. In case of a rape, victim might never know about her culprit and her soul may be healed but in case of marital rape she can not, and in effect it’s the whole family who suffers. One might argue that this is not he case in modern civilized societies and it might be the case in third world backward countries but a number of cases are reported in media on this issue in England and America, too. These reported incidents clearly indicate that marital rape is a curse for even the modern societies and requires a universal remedy. Common law and marital rape: Common law is the body of legal decisions and precedent which has been evolved over centuries and is a crux of human wisdom over the generations. It’s an evolutionary body with little or no help from the legislation and is based on local wisdom. These precedents as reported are adopted by other courts on basis of their affectivity and prudence. Since the subject of marital rape was present in discussion for a considerable time in the legal circles of England and a number of cases were presented before these courts for adjudication, therefore, its legal history provides a vista to look into its evolution and understand the societal attitude toward marital rape and legal opinion upon the same. The development of the common law on this issue: Law on status of marital rape is still in its development stages. Still there is a lot of work to be done to define and codify into an enforceable law through legislation. There was a time when common law did not recognize any crime as to rape within marriage. It was believed that a man could not commit the crime of rape on his wife, as rape is not possible within the legal definition of marriage during its currency. 5 As discussed earlier, evolutionary process in common law is traceable in form of its legal precedents and these speak a lot about the fact that whatever legal opinion about this topic has been framed today, is a result of a long legal and societal battle. Marital exemption: This discussion about marital rape started with the judgment of the Lord Chief Justice, Lord Justice Hale, in the middle of the 18th century who described a general rule in this regard and was used to quote invariably in all the cases of this nature. According to Justice Hale, “… 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.”6 the same point of view was later on repeated in number of cases. In a court case in late 19th century a wife made an allegation against her wife that he had commited an assualt on her. However, this time there was no mention of any rape or sexual assualt against her husband and the case was based on provision of Offences against the Person Act 1861 which provides for the person’s security against crime commited against his or her body. It was observed by the court that definition of assult alleged by the plaintiff was nothing but rape as an assult by sexual intercourse is nothing but rape. However, in case of a legally weded wife, this is not a crime because marriage itself constitute an implied consent of wife to her husband to do this act, hence man was declared innocent of charges levelled against him7. The dictum so esteblished was specifically based on he situation where there was a legal marrige betweem the parties and no body was challenging the same. The court soon encountered the situations where the parties were challenging their relationship. In such a case where on request of the wife on the plea of cruelity of her husband, a seperation order was in place and cohabitation was abondanded. Later, husabnd broke into her wife’s residence and commited sexual intercourse with her. Now the situation as a little bit different as the seperation order was in place. Court found that in a legally married life it is not possible for a husband to commit rape with her spouse. However, there was a seperation order which was in place which could be considered in this regard8. Change in mind set -evolution in process : There was an instance where there was a petition of divorce pending for decision in the court of law while the husband commited an act of sexual assualt on her wife. This time court again recoursed to Hale’s interpertation of marriage and rape and held that as the marriage was intact at the time of sex, therefore it was an act by a husband with his wife and a husband could not be held guilty for this act. The notion was again based upon the arguments that there was an implied consent of woman in the form of marriage9. What the courts of those times did not realise was that when the whole marriege is in geopardy then there can not be any assumed implied consents on the part of any partner. By the year 1974, the court has recognized the fact that sexual relationship between spouses while their marriage was at the verge of collapse could not be compared to a day to day relationship of routine couples. Therefore, when there was a case where the woman had a decree of nisi in her favor and she was raped by her husband, it was declared that decree of nisi in her favor was a step toward a legal divorce. The implied consent in the form of marrige was no more available.10 Similarly, the court had to give its opinion in express terms when a case was filed by a woman who was intrcoursed by a person who happened to be her husband but in divorce proceeding he was restrained to assult or approach her wife against which he gave a written statement to that effect and a restraining order was passed. This led to an other debate in the legal circles where the courts started uphelding Hale’s judegment -declaring that a man can not be declard guilty of his wife’s rape- but questioned whether the husband was guilty to breach an injunction on the basis of his written promise to the court or not. In such cases he was not charged with rape but bas held guilty to breach an injunction not to approach her wife.11 It was the start of change in approach in the evolution of law toward marital rape. Marital Rape is recognized: The major shift was seen when Mr. Justice Owen accepted that there are possibilities of unilateral withdrawal of consent given by a woman in marriage and that may be proved from the circumstantial evidences. He found that an agreement contrary to the exemption created vide Hale’s opinion can be made and a wife may disallow her husband to have sexual relationship. According to him, it would be sad to conclude from Hale’s version of commentary that a husband could be allowed to beat his wife in order to make her a subject of sex.12 It established that in the presence of a legal marriage there are chances and situations that separation may exist whether formal or informal which can be established from the circumstances and it created an exception to the exemption prevailing for long. Soon, Mr. Justice Simon Brown, while adopting another approach toward marital rape, declared that there is no exemption such as marital exemption and a husband can be convicted for rape against her wife if she does not give her consent to have sex. He noticed that till that date a lot of literature had been produced on that topic and a number of decisions on the issue were available which could no more be ignored. Keeping in view the societal demand, he took an altogether new approach in common law system without commenting on Hale’s commentary on the topic13. Perhaps he believed that at the time of Hale, his commentary was in accordance with the aspiration of that era’s society. House of Lords held: As a major victory on this issue, the House of Lords started to share the belief as well and in late 80’s and early 90’s -when courts in England and Scotland found Hale’s interpretation and exemption so derived inapplicable in this modern time- there were words of support for such decisions coming from the law Lords as well. The Lord justice-general, Lord Esmile to this issue in the following words, “A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule. Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances. It cannot be affirmed nowadays, whatever the position may have been in earlier centuries that it is an incident of modern marriage that a wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. There is no doubt that a wife does not consent to assault upon her person and there is no plausible justification for saying today that she nevertheless is to be taken to consent to intercourse by assault.” 14 This was the success of woman right in England and it emphasized on legislation in this regard. Marital rape in USA: This discussion about the marital rape has also been there in USA. In 1976 Daniel Morrison was the first American found guilty of raping his estranged wife15 while in the same year discussion about rape with a living wife had also been started. Soon in the state of Massachusetts a person was charged and convicted in a marital rape case. Up till now, in almost all the states a marital rape has been recognized as crime against person and is punishable at law. Conclusion: As against the wisdom of centuries and wishes of past generations to treat women as a commodity and to equate her consent to marry with her surrender to a man for life, present day world has deliberated upon equality of woman in all aspects of life. She has been recognized as an equal partner in sex and her consent ot this activity must be there. If a marriage can’t be solemonized without the consent of both then why the legal activity under it? It is quiet clear that as against a legal sex in marriage, a woman has much more fear to pass throught the fear of sexual relationship against her will. Untill recently, it was not a crime but now in most of the countries of the world, it has been accepted as a crime in the eyes of law. Most of the countries have also provided it in codified form and there is a need to make women aware of their legal rights. Bibliography Barb Kiffe, Marital Rape, Dakota County Sexual Assault Services, retrieved from http://www.wcsap.org/advocacy/PDF/MaritalRapeDekota.pdf Diana E. H. Russel, Rape in Marriage, 1983, Page 43 Legal definition of Law, retrieved on 15th January 2010, from http://www.lectlaw.com/def2/m087.htm Lord Justice Hale, 1736, “History of Common Pleas” And “The History of the Pleas of the Crown” S v HM Advocate, 1989 SLT, 469 Stephen Satris, Taking sides: clashing views on controversial moral issues, 1988, Page 139 R. v C (Rape: Marital Exemption) [1991] 1 All ER 755 R v O’Brien (1974) 3 All ER 66 R v Steele (1977) 65 Cr. App R. 22 R v R [1991] 1 All ER 747 R v Clarence (1888) 22 QBD 23 R v Clarke (1949) 2 All ER 448, [1949] 33 Crime App R 216 R v Miller (1954) 2 QB 282 13 v. Daniel Morrison, b. Abt. 1832, Georgetown Read More