MARITA MARITA ISLAMIC PERSPECTIVE ON MARITAL RAPE | Susila | Jurnal Media Hukum 271 724 1 PB

○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 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

MARITA MARITA MARITAL RA L RA L RA L RA L RAPE IN SEVERA PE IN SEVERA PE IN SEVERA PE IN SEVERA PE IN SEVERAL JURISDICTIONS L JURISDICTIONS L JURISDICTIONS L JURISDICTIONS L JURISDICTIONS Countries which were early to criminalize marital rape include the Soviet Union 19221960, Poland 1932, Czechoslovakia 1950, 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 ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 323 VOL. 20 NO.2 DESEMBER 2013 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 1983, New Zealand 1985, and Ireland 1990. 21 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. 22 France’s Cour de Cassation authorized prosecution of spouses for rape or sexual assualt in 1990, but ruled in 1992 that a presumption of consent exists from the time of marriage until it is revoked by either party. In 1994, Law 94-89 criminalized marital rape; a second law, passed 4 April 2006, makes rape by a partner including in unmarried couples, married couples, and in civil unions an aggravating circumstance in prosecuting rape. 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. 23 Recent countries to criminalize marital rape include Turkey 2005, Cambodia 2005, Mauritius 2007, Ghana19982007, Malaysia 2007, Thailand 2007, Tunisia 2008, Rwanda 2009, South Korea 2009, and Jamaica 2009. Human rights observers have criticized a variety of countries—including Japan, Poland, and Kazakhstan—for failing to effectively prosecute marital rape once it has been criminalized. 24 Whether marital rape is considered a crime depends on where you live in the world. Almost all developed countries, and many developing countries, recognize marital rape as being a crime. However, the degree that these countries consider the seriousness of the crime of marital rape compared to ‘stranger’ rape varies from country to country, and indeed state to state. While some countries and states consider that marital rape is not as serious a crime as other forms of rape, other countries and states hold it to be as serious a crime, or a worse crime, as incidence of marital rape is a strong indicator that other forms of domestic abuse are also taking place. 25 Further, the list of countries categorized based on their involvement in the issue of marital rape can be seen below: ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 324 J U R N A L M E D I A H U K U M D DD DD..... ISLAMIC CONCEPT ON SEXUA ISLAMIC CONCEPT ON SEXUA ISLAMIC CONCEPT ON SEXUA ISLAMIC CONCEPT ON SEXUA ISLAMIC CONCEPT ON SEXUAL INT L INT L INT L INT L INTERCOURSE ERCOURSE ERCOURSE ERCOURSE ERCOURSE According to Islamic perspective, sexual intercourse has two functions namely recreation and reproduction. Sexual intercourse constitutes part of satisfaction al-nikmat that human beings can enjoy during their life in this world. Beside to satisfy human desire, sexual intercourse is the very natural way to maintain human race through regenerational process. Only criminalized when couple is legally separated: 27 · Singapore legal separation, divorce, restraining order, or attempt by the assaulted party to receive such legal status · Sri Lanka · Tanzania ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 325 VOL. 20 NO.2 DESEMBER 2013 Considering its fundamental functions, sexual intercourse is sacred in Islam and it will be counted as part of worship ibadah to Allah as long as being carried out in line with the rule of Allah sharia. Syakir Jamaludin highlights this point by stating that even the fulfillment of sexual desire will be counted as worship if the realization in accordance with the rule of sharia. Based on the rule of sharia, only sexual intercourse conducted by husband with his wife is lawful halal hence, any sexual activity carried out outside the marriage is unlawful haram. The unlawfulness of sexual intercourse is not merely relied on the marital status of the parties, but also referred to particular situations or conditions. Even though sexual intercourse is done between husband and wife it remains unlawful if the following situations or conditions are present: 1. It is conducted during fasting Ramadhan, 2. It is conducted when the wife is at the moment of haid menstruation, 3. It is conducted when the wife is at the moment of nifas parturition 4. Penile penetration upon wifes anus anal sex. Unlawful sexual intercourse out side the marriage is called zina and it is one of serious sins in Islam. Zina can be classified into two categoris namely zina muhsan and zina ghair muhsan. A zina is considered muhsan if the offender has got married, and it will fall under category of ghair muhsan if the offender has not got married yet. Zina is not only a sin in the sense that there will be punishment for the offender in the hereafter, but also considered as a crime jarimah where criminal liability can be held for the offender by the authority. Zina is part of hudud offences jarimah hudud, that is any offence which subjects to hadd punishment. Beside zina adultery, other hudud offences are al-sariqah theft, al-hirabah robbery, qazf defamation, al-riddah apostasy, al-baghyu rebellion and surb al-Khamr drinking liquor. Hadd is a technical term for calling punishment which is determined by the Lawgiver Allah and categorized as fixed punishmeht as opposed to discretionary punishment. As it is fixed, it cannot be mitigated. In the case of adultery, the punishment for the offender differs depending on the marital status of the offender. Married offender zina muhsan case will subject to stoning to death, while unmarried offender zina ghair muhsan case will subject to flogging of one hun- dreds lashes and exile for one year. If it is connected to the theory of maqhasid sharia, the criminalization of adultery is to support the idea of the protection of offspring hifdzu al-nasl. Maqhasid sharia is a theory which explains the objectives of the sharia. All legal rules in Islam can be traced back to the theory of maqhasid sharia. This well known theory is always associated with al-Shatibi, an Islamic scholar. E. E. E. E.

E. ISLAMIC CONCEPT ON MARRIAGE ISLAMIC CONCEPT ON MARRIAGE