The term marital rape has been defined differently throughout the literature, sometimes including unmarried cohabiting partners and/or divorced or separated partners. Varying definitions across studies are highlighted as well as implications for the interpretation and generalization of research findings.
Table of Contents
- 1 Etymology and definitions
- 2 Psychological approach
- 3 Legal perspectives
- 4 Difficulties in prosecuting marital rape
- 5 References
Etymology and definitions
Latin rapere, to seize, Forcible sexual intercourse by a man with his wifeMosby’s Medical Dictionary, 8th edition. © 2009, Elsevier
Rape in marriage is a serious and prevalent form of violence against women. While the legal definition varies within the United States, marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent Bergen, 1996; Pagelow, 1992; Russell, 1990), [VAWnet]
Marital Rape: any unwanted sexual acts by a spouse or ex-spouse, committed without consent and/or against a person’s will, obtained by force, or threat of force, intimidation, or when a person is unable to consent. These sexual acts include vaginal, anal or oral sex. [Seximus]
It is often assumed that real traumatic rape has to be committed by a stranger as a one-time event. On the contrary, since spouses have been sexually intimate, marital rape should not be considered as a real rape, or should be considered as far less traumatic.
Then, marital rape is likely to be part of an overall abusive relationship. Thus, the history of the relationship affects the victim’s reactions. The rape’s trauma adds to the effects of other abusive acts from the raper. Furthermore, marital rape is rarely a one-time event, but more likely a repeated if not frequent one.
The Hale Doctrine and the Unities Theory
The first documented legal statement regarding marital rape occurred in 1736. At this time, Sir Matthew Hale, who was a chief justice in England, published the following in the History of the Pleas of the Crown (Hale, 1736):“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”Russell, 1990, p. 17
This statement became known as the Lord Hale Doctrine and represented a common-law marital rape exemption, under which husbands could not be accused of committing the crime of rape against their wives. Instead of basing his doctrine on legal argument, however, Lord Hale relied solely on the theory of irrevocable consent to justify the marital rape exemption. Despite this fact, the Hale doctrine seemed to gain automatic acceptance by the U.S. legal system, which formally recognized the exemption in the 1857 Commonwealth v. Fogarty decision Barshis, 1983
The marital rape exemption gained further support by the middle of the 18th century when Blackstone put forth the unities theory, which viewed the husband and wife as becoming one on marriage . According to this theory, women lost their own civil identities in marriage, and they were subsequently viewed as their husbands’ property. In Blackstone’s Commentary on the Laws of England (1765), he wrote, “Husband and wife are legally one person. The legal existence of the wife is suspended during marriage, incorporated into that of the husband. . . . If a wife is injured, she cannot take action without her husband’s concurrence.” Green, 1988; Small; Tetreault, 1990
During the same period, rape was considered a crime against another man’s property rather than a violation against a woman’s body and personal integrity Green, 1988; Small; Tetreault, 1990. As a result, common law dictated that it was impossible for husbands to steal (i.e., rape) their own property (i.e., wives); thus, marital rape was considered a legal impossibility Green, 1988
The criminalization of Marital Rape in the US
Until 1976, marital rape was legal in every state in the United States. Although marital rape is now a crime in all 50 states in the U.S., and the first marital rape case to reach the U.S. court system took place in 1978 in New Jersey, where Daniel Morrison was found guilty of raping his estranged wife. Six months later in Oregon, John Rideout became the first husband charged with rape while living with his wife. Rideout was acquitted, but the case was widely publicized and brought attention to the concept that rape can exist within the context of marriage. Many states at that time defined rape as forced sexual intercourse committed by a man “against a woman [not his wife].” In 1979, the state of Massachusetts charged and convicted a marital rape case. In 1981, Minnesota statutes were changed to acknowledge the existence of rape in marriage; Ramsey County was the first to charge a case under this statute, but later dismissed it. There have since been subsequent successful prosecutions of marital rape, but in general the cases are hard to win, primarily because the question of consent is clouded by societal beliefs about marriage.
It was in the same year that advocate Laura X founded the National Clearinghouse on Marital and Date Rape as part of the Women’s History Library in Berkeley, California. It was through the untiring efforts of Laura X and others like her that as on July 5, 1993, marital rape became a crime in at least one section of the sexual offense codes in all 50 states of the U.S.
Rape in marriage was criminalized as recently as 1982 in Scotland and 1991 in England. Before these dates a woman had no legal protection for the crime of rape perpetrated against her by her husband.
Marital rape and the UN
Thus, as the human rights developped, the belief of a marital right to sexual relations had become less widely spread. In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence Against Women which consider marital rape as a human rights violation. In 1995, all countries represented at the U.N.’s Women’s Conference voted for a resolution, which held that wives have the right to refuse the sexual demands of their husbands.
In 2006, it was estimated that marital rape could be prosecuted in at least 104 countries. Western countries outlawed it mostly in the 1980s and 1990s. Some developping countries outlawed marital rape in the 2000s. However, in many countries it is not clear whether or not marital rape can be prosecuted under ordinary rape laws. In many countries marital rape is either legal, or illegal but widely tolerated as the husband’s prerogative.
Difficulties in prosecuting marital rape
Firstly, the prosecution of marital rape is confronted to the reluctance of various legal systems to recognize it as a crime.
Secondly, the prosecution of marital rape meets with problems on the procedural level. When the case comes the Court, there are difficulties in proving that the rape took place. The reason is that sexual relations are to be expected in a marriage. Thus, if the defense claims consent from the victim, the evidences are very difficult to provide.
- Rape Crisis, UK
- “Marital Rape”, Hidden Hurt, Domestic Abuse Information
- Wendy McEnroy, “Spousal Rape Case sparks old debate” (21/02/2005)
- UN, Declaration on the elimination of violence against women, General Assembly resolution 48/104 of 20 December 1993