THE HISTORY OF MARITA THE HISTORY OF MARITA

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 320 J U R N A L M E D I A H U K U M V. V. V. V. V. THE RESEARCH FINDING THE RESEARCH FINDING THE RESEARCH FINDING THE RESEARCH FINDING THE RESEARCH FINDING A. A. A. A. A. DEFINITION OF MARITA DEFINITION OF MARITA DEFINITION OF MARITA DEFINITION OF MARITA DEFINITION OF MARITAL RA L RA L RA L RA L RAPE PE PE PE PE Marital rape is just like any other “kind” of rape - that is, forcible unwanted sexual contact - except that it occurs between two people who are married. 1 Marital rape, also known within law as spousal rape, is the rape of a wife or husband by their own partner. 2 Marital rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be done by the use of force only, a battering rape or a sadisticobsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused. 3 The term ‘marital rape’ is contentious and creates confusion for rape is widely regarded as a sexual transgression, and marriage is perceived as socially sanctioned sex. Generally women them- selves do not recognize sexual assaults by a husband as rape compared with sexual assaults by strangers or acquaintances and so are less likely to report it. 4 Finkelhor Yllo, as quoted by Kriti Madan, have tried to categorize the sexual assault into three major following forms: 5 a. Battering rape : In “battering rapes”, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual vio- lence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category. b. Force-only rape : In what is called “force-only” rape, husbands use only the amount of force neces- sary to coerce their wives; battering may not be characteristic of these relationships. The as- saults are typically after the woman has refused sexual intercourse. c. Obsessive rape : Other women experience what has been labelled “sadistic” or “obsessive” rape; these assaults involve torture andor “perverse” sexual acts and are often physically violent. In the United States, some states require marital rape to be prosecuted in the same way as any other rape, while others make it a separate crime. In states where it is treated as a separate crime, procedures may differ substantially from those of a general rape case. For example, in California, non-spousal rapists are not eligible for probation, but spousal rapists are. In West Virginia, spousal rapists can be sentenced to terms of only 2-10 years, while non-spousal rapists are sentenced to 10-35. 6 B. B. B. B.

B. THE HISTORY OF MARITA THE HISTORY OF MARITA

THE HISTORY OF MARITA THE HISTORY OF MARITA THE HISTORY OF MARITAL RA L RA L RA L RA L RAPE PE PE PE PE Rape is often regarded as the most serious sexual offences. 7 Western jurisprudence has a long tradition of absolving husbands from the possibility of rape. The first significant discussion in America of forced sex within marriage being categorized as rape, and of the need for a legal remedy, may well have been “The Markland Letter,” which was published in 1887 in a Kansas ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 321 VOL. 20 NO.2 DESEMBER 2013 newspaper. The letter read, “About a year ago F gave birth to a baby, and was severely torn by the instruments in incompetent hands. She has gone through three operations and all failed…last night when her husband came down, forced himself into her bed, and the stitches were torn from her healing flesh, leaving her in worse condition than ever...” 8 The Markland letter became nationally notorious largely because its graphic description of violence left little doubt that the husband was a rapist despite the law. American law did not catch up with the Markland letter until 1976. Until then, rape laws throughout the states included a Marital Rape Exemption. In 1976, however, Nebraska became the first state to abolish that ex- emption. 9 Marital rape is a relatively new term. Since sexual intercourse is considered as a private matter, the victim of marital rape typically the wife for a long time prefers to keep silent. One reason for the silence about marital rape is because throughout much of history, in many countries and cultures around the world marital rape was seen as an impossibility. 10 Within history can be seen the concept that marriage includes within it conjugal rights. In Western culture this was often ascribed to the teaching of St. Paul: “Let the husband render to his wife the affection due her, and likewise also the wife to her husband. The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control.” 11 The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “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 herself in kind unto the husband, whom she cannot retract.” This established the notion that once married, a women does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a “licence to rape” their wives. 12 Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital rela- tion. As the concept of human rights has developed, the belief of a marital right to sexual inter- course has become less widely held. 13 From the beginnings of the 19 th century, women’s movement activists challenged the pre- sumed right of men to engage in forced sex with their wives. In the United States, “the nine- teenth-century woman’s rights movement fought against a husband’s right to control marital intercourse in a campaign that was remarkably developed, prolific, and insistent, given nine- teenth-century taboos against the public mention of sex or sexuality.” Suffragists including Eliza- beth Cady Stanton and Lucy Stone “singled out a woman’s right to control marital intercourse as ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 322 J U R N A L M E D I A H U K U M the core component of equality.” Nineteenth century feminist demands centered on the right of women to control their bodies and fertility, positioned consent in marital sexual relations as an alternative to contraception and abortion which many opposed, and also embraced eugenic concerns about excessive procreation. British liberal feminists John Stuart Mill and Harriet Tay- lor attacked marital rape as a gross double-standard in law and as central to the subordination of women. 14 Feminists worked systematically since the 1960s to overturn the marital rape exemption and criminalize marital rape. Increasing criminalization of spousal rape is part of a worldwide reclassi- fication of sexual crimes “from offenses against morality, the family, good customs, honor, or chastity... to offenses against liberty, self-determination, or physical integrity.” 15 Marital rape is non-consensual sex in which the perpetrator is the victim’s spouse. As such, it as a form of partner rape, of domestic violence, and of sexual abuse. Once widely condoned or ignored by law, spousal rape is now repudiated by international conventions and increasingly criminalized. 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. 16 The first attempted prosecution of a husband for the rape of his wife was R v Clarke [1949] 2 All ER 448. 17 The marital rape exemption was abolished in England and Wales in 1991 by the Appellate Committee of the House of Lords, in the case of R v R. been promulgated in 1736 in Matthew Hale’s History of the Pleas of the Crown. 18 In many North American and Western European countries, marital rape was not recognized as a crime until the 1980’s or 90’s. In fact, as of 1997, only 17 countries named marital rape a crime. Fortunately, publication of the United Nation’s Declaration on the Elimination of Vio- lence against Women has raised awareness of the problem and increased the number of coun- tries that outlaw marital rape to more than 100. 19 In 2006, it was estimated that marital rape could be prosecuted in at least 104 countries in four of these countries, marital rape could be prosecuted only when the spouses were judicially separated, and since 2006 several other countries have outlawed spousal rape. In many countries it is not clear if marital 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 in Western Europe and the English-speaking Western world outlawed it much later, mostly in the 1980s and 1990s. Most developing countries outlawed it in the 1990s and 2000s. 20 C. C. C. C.

C. MARITA MARITA