The Legality of Marital Rape
- eden kilgour
- Sep 19, 2021
- 3 min read
NB – Please be warned that topics of sexual assault, rape, consent are discussed in this article. We recommend you do not read this if these are likely to distress or upset you.
It is a shocking and rather disturbing fact to discover to discover that within the UK, there is a shared view of acceptance of marital rape, something that, within such a progressive and modern society, such an outdated concept appears as unexpected. In fact, in a study done by YouGov in 2018 revealed that one in four Brits believe that non-consensual sex within marriage does not constitute rape, despite its extremely harmful and inherently violating qualities. Due to the widely-believed notion that sexual violence and rape must incorporate physical violence, it can be easy to confuse definitions and vague lines without further research and knowledge.
Currently, within the UK, since 1992 marital rape has been illegal, although was not defined specifically until the Sexual Offences Act of 2003, in which rape is more broadly defined as penetration of any kind, without a condition or exemption concerning marital status. Therefore, a partner can be accused of rape just the same as any other circumstance or relationship. However, this changed with a case of 1991, which goes by the name of R v R. After the accusation of an attempted rape upon his wife, the defendant claimed rights under marital rape exemption, stating that the wife had previously given matrimonial consent upon their marriage. After appealing his sentence, The House of Lords found R guilty of attempted rape, stating that marital exemption does not exist in English law, and that it ‘cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances’. This case was a defining point in the historical legality of marital rape within the UK.
Historically however, in English law, marital rape has been somewhat accepted, visible by its first appearance in writing in the 1736 treatise by the name of ‘History of the Pleas of the Crown’ by Sir Matthew Hale, who stated that ‘The husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract.’. Here suggests the ultimate acceptance of marital rape, and the idea that retraction of consent within marriage is somewhat forbidden for women. Even in 1822, it was widely believed that the husband could assert conjugal rights without condemnation (rights to sexual relations by means of marriage), as John Frederick Archbold stated that a man ‘cannot be guilty of a rape upon his wife’.
In other legal systems however, marital rape and conjugal rights still exist in 10 countries, being Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania. Even more grotesquely, 4 of these countries permit the offence ‘even when the victim is a child’.
On the other hand, these are only the countries where it is specifically defined as legal, for there are many more which leave a vague, grey area in which the defence is undefined.
Often, there are difficulties with its legal prohibition, seeing as there is an inherent lack of desire in many societies to pursue the crime, due to potential religious or traditionalist values of sex and marriage. Not only is there a lack of desire within communities, but also within the partners themselves, due to the reluctance to prosecute one’s own family, somewhat understandably. Often, sex is viewed as a religious right in marriage, and these traditional views can somewhat be dangerous in the understanding of marital rape, and further can promote social toleration despite potential illegality. Even more so, there is a lack of understanding within society as to what constitutes rape, and many are simply misinformed that this form of offence even exists.
Sentencing of marital rape in the UK today is widely variable, dependent on the individual circumstances of the case, ranging from approximately 4-19 years in prison. Of course, from a feminist viewpoint and within the empowerment of female bodies and movements of consent, the introduction of this law is a huge progressive step forwards, and it is hoped by many that other nations follow suit.
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