Can a husband rape his wife

20th and 21st century criminalizationEdit
The marital rape exemption or defence became more widely viewed as inconsistent with the developing concepts of human rights and equality. Feminists worked systematically since the 1960s to overturn the marital rape exemption and criminalize marital rape.[10] Increasing criminalization of spousal rape is part of a worldwide reclassification of sexual crimes "from offenses against morality, the family, good customs, honor, or chastity ... to offenses against liberty, self-determination, or physical integrity."[11] 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.
The importance of the right to self sexual determination of women is increasingly being recognized as crucial to women's rights. In 2012, High Commissioner for Human Rights Navi Pillay stated that:[12]
"Violations of women's human rights are often linked to their sexuality and reproductive role. (...) In many countries, married women may not refuse to have sexual relations with their husbands, and often have no say in whether they use contraception. (...) Ensuring that women have full autonomy over their bodies is the first crucial step towards achieving substantive equality between women and men. Personal issues—such as when, how and with whom they choose to have sex, and when, how and with whom they choose to have children—are at the heart of living a life in dignity."
Despite these trends and international moves, criminalization has not occurred in all UN member States. Determining the criminal status of marital rape may be challenging, because, while some countries explicitly criminalize the act (by stipulating in their rape laws that marriage is not a defense to a charge of rape; or by creating a specific crime of 'marital rape'; or, otherwise, by having statutory provisions that expressly state that a spouse can be charged with the rape of their other spouse) and other countries explicitly exempt spouses (by defining rape as forced sexual intercourse outside of marriage; or forced sexual intercourse with a woman not the perpetrator's wife; or by providing in their rape provisions that marriage is a defense to a charge of rape), in many countries the ordinary rape laws are silent on the issue (that is, they do not address the issue one way or another)—in such cases, in order to determine whether marital rape is covered by the ordinary rape laws it must be analyzed whether there are judicial decisions in this respect; and former definitions of the law are also important (for instance whether there was previously a statutory exemption that was removed by legislators for the purpose of implicitly including marital rape).
In 2006, the UN Secretary-General's In-depth study on all forms of violence against women stated that (page 113):[13]
"Marital rape may be prosecuted in at least 104 States. Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 do not exempt marital rape from general rape provisions. Marital rape is not a prosecutable offence in at least 53 States. Four States criminalize marital rape only when the spouses are judicially separated. Four States are considering legislation that would allow marital rape to be prosecuted."
In 2011, the UN Women report Progress of the World’s Women:In Pursuit of Justice stated that (page 17):[14]
"By April 2011, at least 52 States had explicitly outlawed marital rape in their criminal code".
Traditionally, rape was a criminal offense that could only be committed outside marriage, and courts did not apply the rape statutes to acts of forced sex between spouses. With changing social views, and international condemnation of sexual violence in marriage, courts have started to apply the rape laws in marriage. The current applicability in many countries of rape laws to spouses is currently unclear, since in many countries the laws have not been recently tested in court. In some countries, notably jurisdictions which have inherited the 1860 Indian Penal Code (such as Singapore, India, Bangladesh, Sri Lanka, Burma) and some countries in the Commonwealth Caribbean region, the laws explicitly exempt spouses from prosecution (for instance, under the 1860 Indian Penal Code, which has also been inherited by other countries in the region, the law on rape states that "Sexual intercourse by a man with his own wife is not rape").[15]
An example of country where the rape law explicitly excludes a husband as a possible perpetrator is Ethiopia; its rape law states:[16] "Article 620 - Rape: Whoever compels a woman to submit to sexual intercourse outside wedlock, whether by the use of violence or grave intimidation, or after having rendered her unconscious or incapable of resistance, is punishable with rigorous imprisonment from five years to fifteen years". Another example is South Sudan, where the law states: "Sexual intercourse by a married couple is not rape, within the meaning of this section". (Art 247).[17] Conversely, an example of country where the rape law explicitly criminalizes marital rape is Namibia - The Combating of Rape Act (No. 8 of 2000) states that: "No marriage or other relationship shall constitute a defence to a charge of rape under this Act".[18] An example of a jurisdiction where marital rape is a distinct criminal offense is Bhutan where 'Marital rape' is defined by Article 199 which reads: "A defendant shall be guilty of marital rape, if the defendant engages in sexual intercourse with one's own spouse without consent or against the will of the other spouse".[19]
By 1986, in Europe, there was international pressure to criminalize marital rape: the European Parliament's Resolution on Violence Against Women of 1986 called for its criminalization.[20] This was reiterated by the Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence. (see para 35) This recommendation provided detailed guidelines on how legislation regarding domestic violence, rape, and other forms of violence against women should operate. It also provided a definition of violence against women, and gave a list of non-exhaustive examples, including marital rape (see section "Definition" para 1). Although the approach on the issue of violence against women has varied significantly among European countries, the traditional view that acts of violence against a woman are crimes against honor and morality, and not against the self-determination of the woman, was still prevalent in the 1990s in many countries.[21] The above recommendation stated that member states must "ensure that criminal law provides that any act of violence against a person, in particular physical or sexual violence, constitutes a violation of that person’s physical, psychological and/or sexual freedom and integrity, and not solely a violation of morality, honour or decency" (para 34).[22] The approach regarding sexual and other forms of violence against women in specific European countries did not necessarily mirror women's rights in other areas of life (such as public or political life) in those countries: in fact some countries otherwise known for advanced women's rights, such as Finland and Denmark, have received strong criticism for their policies in this area. A 2008 report produced by Amnesty International,[23] described Danish laws on sexual violence as "inconsistent with international human rights standards",[24] which has led to Denmark eventually reforming its sexual offenses legislation in 2013.[25][26][27] (Until 2013, in Denmark "the Penal Code reduce[d] the level of penalty or provide[d] for exclusion of punishment altogether for rape and sexual violence within marriage in certain instances [...] and if the perpetrator enter[ed] into or continu[ed] a marriage with his victim the punishment for rape c[ould] be reduced or remitted").[24] Cultural and religious values which support female subordination and inequality are considered important in dealing with the issue of sexual violence against women; but there have been calls for analyses of cultural gender norms which tolerate violence against women to not be based on stereotypes; Mala Htun and Laurel Weldon write "gender policy is not one issue but many" and "When [...] Latin American countries are quicker to adopt policies addressing violence against women than the Nordic countries, one at least ought to consider the possibility that fresh ways of grouping states would further the study of gender politics." [28] The causes of the toleration - in law or in practice - of sexual violence inside marriage are complex; lack of understanding of the concept of consent and coercion due to lack of sexual education and public discussion about sexuality are often cited as causes of sexual abuse in general; but there has been criticism towards the idea that sex education about consent, in and of itself, is sufficient.[29]
The countries which choose to ratify the Council of Europe Convention on preventing and combating violence against women and domestic violence, the first legally binding instrument in Europe in the field of violence against women,[30] are bound by its provisions to ensure that non-consensual sexual acts committed against a spouse or partner are illegal.[31] The convention came into force in August 2014.[32] In its explanatory report (para 219) it acknowledges the long tradition of toleration, de jure or de facto, of marital rape and domestic violence:
"A large number of the offences established in accordance with this Convention are offences typically committed by family members, intimate partners or others in the immediate social environment of the victim. There are many examples from past practice in Council of Europe member states that show that exceptions to the prosecution of such cases were made, either in law or in practice, if victim and perpetrator were, for example, married to each other or had been in a relationship. The most prominent example is rape within marriage, which for a long time had not been recognised as rape because of the relationship between victim and perpetrator."
Legal changesEdit
Countries which were early to criminalize marital rape include the Soviet Union (1922/1960),[33] Poland (1932), Czechoslovakia (1950), some other members of the Communist Bloc, Sweden (1965),[34] and Norway (1971).[34] Slovenia, then a republic within federal Yugoslavia, criminalized marital rape in 1977.[35] The Israeli Supreme Court affirmed that marital rape is a crime in a 1980 decision, citing law based on the Talmud (at least 6th century).[36][37] Criminalization in Australia began with the state of New South Wales in 1981, followed by all other states from 1985 to 1992.[38] Several formerly British-ruled countries followed suit: Canada (1983),[39][40] New Zealand (1985), and Ireland (1990).[38]
Marital rape was criminalized in Austria in 1989[41] (and in 2004 it became a state offense meaning it can be prosecuted by the state even in the absence of a complaint from the spouse, with procedures being similar to stranger rape[42]). In Switzerland marital rape became a crime in 1992[43] (and became a state offense in 2004[44]). In Spain, the Supreme Court ruled in 1992 that sex within marriage must be consensual and that sexuality in marriage must be understood in light of the principle of the freedom to make one's own decisions with respect to sexual activity; in doing so it upheld the conviction of a man who had been found guilty of raping his wife by a lower court.[45]
An interesting case in Europe is that of Finland: the country outlawed marital rape only in 1994, after years of debates.[46] The case of domestic violence in Finland has been the subject of much international interest and discussion, because Finland is otherwise considered a country where women have very advanced rights in regard to public life and participation in the public sphere (jobs, opportunities, etc.). The country has been made the object of international criticism in regard to its approach towards violence against women.[47] A 2010 Eurobarometer survey on European attitudes on violence against women showed that victim blaming attitudes are much more common in Finland than in other countries: 74% of Finns blamed "the provocative behaviour of women" for violence against women, much higher than in other countries (for instance many countries that are popularly believed to be among the most patriarchal of Europe were significantly less likely to agree with that assertion: only 33% in Spain, 46% in Ireland, 47% in Italy).[48]
Belgium has been early to criminalize marital rape. In 1979, the Brussels Court of Appeal recognized marital rape and found that a husband who used serious violence to coerce his wife into having sex against her wishes was guilty of the criminal offense of rape. The logic of the court was that, although the husband did have a 'right' to sex with his wife, he could not use violence to claim it, as Belgian laws did not allow people to obtain their rights by violence.[49][50] In 1989 laws were amended, the definition of rape was broadened, and marital rape is treated the same as other forms of rape.[51]
In France, in 1990, following a case where a man had tortured and raped his wife, the Court of Cassation authorized prosecution of spouses for rape or sexual assault. In 1992 the Court convicted a man of the rape of his wife, stating that the presumption that spouses have consented to sexual acts that occur within marriage is only valid unless the contrary is proven.[52] In 1994, Law 94-89 criminalized marital rape;[52] a second law, passed 4 April 2006, makes rape by a partner (including in unmarried relationships, marriages, and civil unions) an aggravating circumstance in prosecuting rape.[53]
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.[54] Before 1997, the definition of rape was: "Whoever compels a woman to have extramarital intercourse with him, or with a third person, by force or the threat of present danger to life or limb, shall be punished by not less than two years’ imprisonment".[55] In 1997 there were changes to the rape law, broadening the definition, making it gender-neutral, and removing the marital exemption.[56] Before, marital rape could only be prosecuted as "Causing bodily harm" (Section 223 of the German Criminal Code), "Insult" (Section 185 of the German Criminal Code) and "Using threats or force to cause a person to do, suffer or omit an act" (Nötigung, Section 240 of the German Criminal Code) which carried lower sentences [57] and were rarely prosecuted.
Before a new Criminal Code came into force in 2003,[58] the law on rape in Bosnia and Herzegovina also contained a statutory exemption, and read: "Whoever coerces a female not his wife into sexual intercourse by force or threat of imminent attack upon her life or body or the life or body of a person close to her, shall be sentenced to a prison term of one to ten years".[55] In Portugal also, before 1982, there was a statutory exemption.[59][60]
Marital rape was criminalized in Serbia in 2002; before that date rape was legally defined as forced sexual intercourse outside of marriage.[61] The same was true in Hungary until 1997.[62] [63]
In 1994, in Judgment no. 223/94 V, 1994, the Court of Appeal of Luxembourg confirmed the applicability of the provisions of the Criminal Code regarding rape to marital rape.[51][64]
Marital rape was made illegal in the Netherlands in 1991.[65] The legislative changes provided a new definition for rape in 1991, which removed the marital exemption, and also made the crime gender-neutral; before 1991 the legal definition of rape was a man forcing, by violence or threat of thereof, a woman to engage in sexual intercourse outside of marriage. [66]
In Italy the law on rape, violenza carnale ('carnal violence', as it was termed) did not contain a statutory exemption, but was, as elsewhere, understood as inapplicable in the context of marriage. Although Italy has a reputation of a male dominated traditional society, it was quite early to accept that the rape law covers forced sex in marriage too: in 1976 in Sentenza n. 12857 del 1976, the Supreme Cort ruled that "the spouse who compels the other spouse to carnal knowledge by violence or threats commits the crime of carnal violence" ("commette il delitto di violenza carnale il coniuge che costringa con violenza o minaccia l’altro coniuge a congiunzione carnale").[67][68] [69]
Cyprus criminalized marital rape in 1994.[70] Marital rape was made illegal in Macedonia in 1996.[71][72] In Croatia marital rape was criminalized in 1998.[73][74]
Greece enacted in 2006 Law 3500/2006, entitled "For combating domestic violence", which punishes marital rape. It entered into force on 24 October 2006. This legislation also prohibits numerous other forms of violence within marriage and cohabiting relations, and various other forms of abuse of women.[75]
Liechtenstein made marital rape illegal in 2001.[76]
In Colombia, marital rape was criminalized in 1996,[77] in Chile in 1999.[78]
Thailand outlawed marital rape in 2007.[79][80] The new reforms were enacted amid strong controversy and were opposed by many. One opponent of the law was legal scholar Taweekiet Meenakanit who voiced his opposition to the legal reforms. He also opposed the making of rape a gender neutral offense. Meenakanit claimed that allowing a husband to file a rape charge against his wife is "abnormal logic" and that wives would refuse to divorce or put their husband in jail since many Thai wives are dependent on their husbands.[81]
Papua New Guinea criminalized marital rape in 2003.[82] Namibia outlawed marital rape in 2000.[83]
Section 375 of the Indian Penal Code (IPC) considers the forced sex in marriages as a crime only when the wife is below 15. Thus, marital rape is not a criminal offense under the IPC.[84] Marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA).[85] The PWDVA, which came into force in 2006, outlaws marital rape.[86] However, it offers only a civil remedy for the offence.[87]
Recent countries to criminalize marital rape include Zimbabwe (2001),[88] Turkey (2005),[89] Cambodia (2005),[90] Liberia (2006),[91] Nepal (2006),[92] Mauritius (2007),[93] Ghana (2007),[94] Malaysia (2007),[95][96] Thailand (2007),[97] Rwanda (2009),[98] Suriname (2009),[99] Nicaragua (2012),[100] Sierra Leone (2012),[101][102] South Korea (2013),[103] Bolivia (2013),[104] Samoa (2013).[105] Human rights observers have criticized a variety of countries for failing to effectively prosecute marital rape once it has been criminalized.[106] South Africa, which criminalized in 1993,[107] saw its first conviction for marital rape in 2012.[108]
United StatesEdit
Main article: Marital rape (United States law)
The legal history of marital rape laws in the United States is a long and complex one, that spans over several decades. Traditional rape laws in the US defined rape as forced sexual intercourse by a male with a "female not his wife", making it clear that the statutes did not apply to married couples. The 1962 Model Penal Code stated that "A male who has sexual intercourse with a female not his wife is guilty of rape if: (...)".[109]
The criminalization of marital rape in the United States started in the mid-1970s and by 1993 marital rape was a crime in all 50 states, under at least one section of the sexual offense codes.[110] During the 1990s, most states differentiated between the way marital rape and non-marital rape were treated, through differences such as shorter penalties, or excluding situations where no violence is used, or shorter reporting periods. (Bergen, 1996; Russell, 1990).[111] The laws have continued to change and evolve, with most states reforming their legislation in the 21st century, in order to bring marital rape laws in line with non-marital rape, but even today there remain differences in some states. With the removal, in 2005,[112][113] of the requirement of a higher level of violence from the law of Tennessee, which now allows for marital rape in Tennessee to be treated like any other type of rape, South Carolina remains the only US state with a law requiring excessive force/violence (the force or violence used or threatened must be of a "high and aggravated nature").[114]
In most states the criminalization has occurred by the removal of the exemptions from the general rape law by the legislature; or by the courts striking down the exemptions as unconstitutional. [115] In some states, however, the legislature has created a distinct crime of spousal rape. This is, for example, the case in California, where there are two different criminal offenses: Rape (Article 261) and Spousal Rape (Article 262).[116] For more details, see Marital rape (United States law).
England and WalesEdit
BackgroundEdit
Although the issue of marital rape was highlighted by feminists in the 19th century; and deplored by thinkers such as John Stuart Mill and Bertrand Russell (see above section 'Feminist critique in the 19th century') it was not until the 1970s that this issue was raised at a political level. The late 1970s also saw the enactment of Sexual Offences (Amendment) Act 1976, which provided the first statutory definition of rape (prior to this rape was an offense at common law). The Criminal Law Revision Committee in their 1984 Report on Sexual Offences rejected the idea that the offense of rape should be extended to marital relations; writing the following:[117]
"The majority of us ... believe that rape cannot be considered in the abstract as merely 'sexual intercourse without consent'. The circumstances of rape may be peculiarly grave. This feature is not present in the case of a husband and wife cohabiting with each other when an act of sexual intercourse occurs without the wife's consent. They may well have had sexual intercourse regularly before the act in question and, because a sexual relationship may involve a degree of compromise, she may sometimes have agreed only with some reluctance to such intercourse. Should he go further and force her to have sexual intercourse without her consent, this may evidence a failure of the marital relationship. But it is far from being the 'unique' and 'grave' offence described earlier. Where the husband goes so far as to cause injury, there are available a number of offences against the person with which he may be charged, but the gravamen of the husband's conduct is the injury he has caused not the sexual intercourse he has forced."
The Committee also expressed more general views on domestic violence arguing that "Violence occurs in some marriages but the wives do not always wish the marital tie to be severed" and reiterated the point that domestic incidents without physical injury would generally be outside the scope of the law: "Some of us consider that the criminal law should keep out of marital relationships between cohabiting partners—especially the marriage bed—except where injury arises, when there are other offences which can be charged."[117]
Five years later, in Scotland, the High Court of Justiciary took a different view, abolishing the marital immunity, in S. v. H.M. Advocate, 1989. The same would happen in England and Wales in 1991, in R v R (see below). Very soon after this, in Australia, at the end of 1991, in R v L, the High Court of Australia would rule the same, ruling that if the common law exemption had ever been part of the Australian law, it no longer was (by that time most Australian states and territories had already abolished their exemptions by statutory law).[118]
Ending the exemptionEdit
Main article: Rape in English law
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.[119][120] It had been promulgated in 1736 in Matthew Hale’s History of the Pleas of the Crown (see above).
The first attempted prosecution of a husband for the rape of his wife was R v Clarke.[121] Rather than try to argue directly against Hale’s logic, the court held that consent in this instance had been revoked by an order of the court for non-cohabitation. It was the first of a number of cases in which the courts found reasons not to apply the exemption, notably R v O’Brien[122] (the obtaining of decree nisi), R v Steele[123] (an undertaking by the husband to the court not to molest the wife) and R v Roberts[124] (the existence of a formal separation agreement).
There are at least four recorded instances of a husband successfully relying on the exemption in England and Wales. The first was R v Miller,[125] where it was held that the wife had not legally revoked her consent despite having presented a divorce petition. R v Kowalski[126] was followed by R v Sharples,[127] and the fourth occurred in 1991 in the case of R v J, a judgment made after the first instance decision of the Crown Court in R v R but before the decision of the House of Lords that was to abolish the exemption. In Miller, Kowalski and R v J the husbands were instead convicted of assault. The R v Kowalski case involved, among other acts, an instance of non-consensual oral sex. For this, the husband was convicted of indecent assault, as the court ruled that his wife's "implied consent" by virtue of marriage extended only to vaginal intercourse, not to other acts such as fellatio.[128] [At that time the offense of 'rape' dealt only with vaginal intercourse]
In R v Sharples in 1990, it was alleged that the husband had raped his wife in 1989. Despite the fact that the wife had obtained a Family Protection Order before the alleged rape, the judge refused to accept that rape could legally occur, concluding that the Family Protection Order had not removed the wife's implied consent, ruling that: "it cannot be inferred that by obtaining the order in these terms the wife had withdrawn her consent to sexual intercourse".[129]
R v R in 1991 was the first occasion where the marital rights exemption had been appealed as far as the House of Lords, and it followed the trio of cases since 1988 where the marital rights exemption was upheld. The leading judgment, unanimously approved, was given by Lord Keith of Kinkel. He stated that the contortions being performed in the lower courts in order to avoid applying the marital rights exemption were indicative of the absurdity of the rule, and held, agreeing with earlier judgments in Scotland and in the Court of Appeal in R v R, that “the fiction of implied consent has no useful purpose to serve today in the law of rape” and that the marital rights exemption was a “common law fiction” which had never been a true rule of English law. R’s appeal was accordingly dismissed, and he was convicted of the rape of his wife.
AftermathEdit
By 1991, when the exemption was removed, the Law Commission in its Working Paper of 1990 was already supporting the abolition of the exemption, a view reiterated in their Final Report that was published in 1992; and international moves in this direction were by now common. Therefore the result of the R v R case was welcomed. But, while the removal of the exemption itself was not controversial, the way through which this was done was; since the change was not made through usual statutory modification. The cases of SW v UK and CR v UK arose in response to R v R; in which the applicants (convicted of rape and attempted rape of the wives) appealed to the European Court of Human Rights arguing that their convictions were a retrospective application of the law in breach of Article 7 of the European Convention on Human Rights. They claimed that at the time of the rape there was a common law exemption in force, therefore their convictions were post facto. Their case was not successful, with their arguments being rejected by the European Court of Human Rights, which ruled that the criminalization of marital rape had become a reasonably foreseeable development of the criminal law in the light of the evolution of social norms; and that the Article 7 does not prohibit the gradual judicial evolution of the interpretation of an offense, provided the result is consistent with the essence of the offense and that it could be reasonably foreseen.[130]
A new definition of the offense of 'rape' was created in 1994 by the section 142 of the Criminal Justice and Public Order Act 1994, providing a broader definition that included anal sex; and an even broader definition was created by the Sexual Offences Act 2003, including oral sex. The law on rape does not—and did not ever since the removal of the marital exemption in 1991—provide for any different punishment based on the relation between parties. However, in 1993, in R v W 1993 14 Cr App R (S) 256, the court ruled:[131] "It should not be thought a different and lower scale automatically attaches to the rape of a wife by her husband. All will depend upon the circumstances of the case. Where the parties are cohabiting and the husband insisted upon intercourse against his wife's will but without violence or threats this may reduce sentence. Where the conduct is gross and involves threats or violence the relationship will be of little significance."
At the time of R v R, rape in Northern Ireland was a crime at common law. Northern Ireland common law is similar to that of England and Wales, and partially derives from the same sources; so any (alleged) exemption from its rape law was also removed by R v R. In March 2000, a Belfast man was convicted for raping his wife, in the first case of its kind in Northern Ireland.[132]
Until 28 July 2003, rape in Northern Ireland remained solely an offense at common law that could only be committed by a man against a woman only as vaginal intercourse. Between 28 July 2003 and 2 February 2009 rape was defined by the Criminal Justice (Northern Ireland) Order 2003 as "any act of non-consensual intercourse by a man with a person", but the common law offense continued to exist, and oral sex remained excluded. On 2 February 2009 the Sexual Offences (Northern Ireland) Order 2008 came into force, abolishing the common law offense of rape, and providing a definition of rape that is similar to that of the Sexual Offences Act 2003 of England and Wales. The Public Prosecution Service for Northern Ireland has the same policy for marital rape as for other forms of rape; it states in its Policy for Prosecuting Cases of Rape document that: "The Policy applies to all types of rape, including marital and relationship rape, acquaintance and stranger rape, both against male and female victims".[133]
AustraliaEdit
The criminalization of marital rape in Australia occurred in all states and territories, by both statutory and case law, from the late 1970s to the early 1990s. In Australia, the offense of rape was based on the English common law offense of rape, being generally understood as "carnal knowledge", outside of marriage, of a female against her will. Some Australian states left rape to be defined at common law, but others had statutory definitions, with these definitions having marital exemptions. The definition of rape in Queensland, for instance, was: "Any person who has carnal knowledge of a woman or girl, not his wife, without her consent, or with her consent, if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape."[134] Discussions of criminalization of marital rape were already taking place in the late 1970s in Queensland,[134] but it was only in 1989 that this happened in that state.[135]
The first Australian state to deal with marital rape was South Australia. The changes came in 1976, but these were only partly removing the exemption. The Criminal Law Consolidation Act Amendment Act 1976 read:[136] "No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person". Nevertheless, the laws did not go as far as equating marital with non-marital rape; the law required violence, or other aggravating circumstances, in order for an act of marital intercourse to be rape; which remained law until 1992. The first Australian jurisdiction to completely remove the marital exemption was New South Wales in 1981. The same happened in Western Australia, Victoria, and ACT in 1985; and Tasmania in 1987. In 1991, in R v L, the High Court of Australia ruled that if the common law exemption had ever been part of the Australian law, it no longer was.[118]
Marriage after rapeEdit
In a variety of cultures, marriage after a rape of an unmarried woman has been treated historically as a "resolution" to the rape. Citing Biblical injunctions (particularly Exodus 22:16–17 and Deuteronomy 22:25–30), Calvinist Geneva permitted a single woman's father to consent to her marriage to her rapist, after which the husband would have no right to divorce; the woman had no explicitly stated separate right to refuse. Among ancient cultures virginity was highly prized, and a woman who had been raped had little chance of marrying. These laws forced the rapist to provide for their victim.[137]
Criminal prosecution for rape ends with marriage in Algeria, Lebanon (both as of 2010),[138] Jordan (as of 2009),[139] Cameroon (as of 2007),[140] Bolivia (as of 1999).[141]
Although laws that exonerate the perpetrator if he marries his victim after the rape are often associated with the Middle East, such laws were very common around the world until the second half of the 20th century. For instance, as late as 1997, 14 Latin American countries had such laws,[142] although most of these countries have now abolished them. Such laws were ended in Mexico in 1991,[139] El Salvador in 1996,[143]Colombia in 1997, Peru in 1999,[139] Chile in 1999,[144] Egypt in 1999,[145] Ethiopia in 2005,[140] Brazil in 2005,[146][147] Uruguay in 2005,[148] Guatemala in 2006,[149] Costa Rica in 2007,[150] Panama in 2008,[151] Nicaragua in 2008,[152] Argentina in 2012,[153] Morocco in 2014,[154] and Ecuador in 2014.[155]
The practice of forcing victims of rape to marry their rapists continues even in many countries where the laws allowing this have been abolished. This is the case, for example, in Ethiopia, where marriage by abduction remains common, despite it being illegal under the new 2004 Criminal Code.[156]
In 2012, after a Moroccan 16-year-old girl committed suicide after having been forced by her family to marry her rapist, at the suggestion of the prosecutor, and having endured abuse by the rapist after they married, there have been protests from activists against the law which allows the rapist to marry the victim in order to escape criminal sanctions, and against this social practice which is common in Morocco.[157] The law was ended in 2014.[154]