Spousal rape

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Spousal rape is non-consensual sexual activity in which the perpetrator is the victim's spouse.

Spousal rape is also called marital rape, partner rape or intimate partner sexual assault (IPSA). Because there is a widely held view that a woman surrenders consent upon entering a relationship, the law has been slow to criminalize this form of rape/sexual assault. It is now a crime in most parts of the Western world, but exemptions still apply in some places; for example in some places a partner rape cannot be prosecuted if the couple were living together at the time of the assault.

Due to popular stereotypes of "real" rape, it is often assumed that if a couple have been sexually intimate, a partner rape is not as traumatic as other types of rape. However the research of Finkelhor and Yllo (1985) and Bergen (1996) reveals that victims of marital/partner rape suffer longer-lasting trauma than victims of stranger rape. One reason for this is thought to be the lack of social validation that prevents a victim from getting access to support. Domestic violence services have made inroads in addressing this problem.

1 Legal Aspect
2 Statistics
3 Problems in prosecuting Spousal Rape
4 References
5 Footnotes
6 See also
7 External links

[edit] Legal Aspect

Historically, many cultures have had a concept of a married man's conjugal right [1] to sexual intercourse with his wife. Under the Common law, in force in North America and the British Commonwealth, the very concept of marital rape was treated as an impossibility. This was illustrated most vividly by Sir Matthew Hale, in his classic legal trestise, Historica Placitorum Coronae, where he wrote that such a rape could not be recognized since the wife "…hath given up herself in this kinde unto her husband, which she cannot retract." Many United States rape statutes used to preclude prosecution of a man for sexually assaulting his own wife, including if the couple are estranged or even legally separated. In 1975, South Dakota removed this exception. By 1993, this was the case throughout the United States.[2] However, 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 if the parties are married to each other. For example, in the U.S., marriage precludes a 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.

As the legal status of women has changed, the concept of a married man's marital right to sexual intercourse has become less widely held. In December 1993, the United Nations High Commissioner for Human Rights published the Declaration on the Elimination of Violence against Women [3]. This establishes marital rape as a human rights violation. This is not fully recognized by all UN member states.

Noted Thai legal scholar Taweekiet Meenakanit voiced his opposition to legal reforms that would make spousal rape in Thailand a crime. He claimed that this would be difficult, since some Thai wives were dependent on their husbands. He also noted that husbands jailed for raping their wives might seek revenge after being released from jail.^[1]

[edit] Statistics

Diana Russell, a researcher into rape, reports that 8% of 900 randomly selected women in the U.S. reported they had been raped by a husband. A survey by the National Victim Center in Arlington, Virginia, states that 10% of all sexual assault cases reported by women involved a husband or ex-husband. [4]

In 1994, Patricia Easteal, then Senior Criminologist at the Australian Institute of Criminology, published the results of survey on sexual assault in many settings. The respondents were survivors of numerous forms of sexual assault. Of these, 10.4% had been raped by husbands or de facto spouses, with a further 2.3 per cent raped by estranged husbands/de factos. 5.5 percent were raped by non-cohabiting boyfriends (Easteal, 1994).

In 1975, the results of an American study on many rape situations were published. Diana E.H. Russell was so appalled by her findings on rape in marriage that she decided to conduct a research project on this area alone. From the 930 interviews conducted with women from a cross section of race and class, Russell concluded that rape in marriage was the most common yet most neglected area of sexual violence (Russell, 1990)

David Finkelhor and Kersti Yllo's 1985 study estimated that 10 to 14 per cent of all married American women have been or will be raped by their spouses. (Finkelhor and Yllo, 1985)

In the UK, statistics disseminated by the Rape Crisis Federation yield the information that the most common rapists are current and ex-husbands or partners (Myhill & Allen, Rape and Sexual Assault of Women: Findings from the British Crime Survey)

Other figures^{[citation needed]} estimate that one in seven women is raped by a sexual intimate.

Spousal rape also occurs in lesbian and gay relationships. It is not known to what extent women sexually assault male partners.

[edit] Problems in prosecuting Spousal Rape

There have been many problems with prosecuting the perpetrators of spousal rape, chief amongst the has been the reluctance of the various legal systems to recognize it as a crime at all. However, criminalization has opened a new set of problems. To take an example in the United Kingdom, such a category of rape was only recognized by a 1991 House of Lords decision known simply as R ([1991] All ER 481). Whilst most parties agreed with the Lords' motive in making the decision, there were many (for instance the writer Patricia Hirst in her Textbook on A-Level law)^{[citation needed]} who were of the opinion that the decision involved post facto criminalization, since their lordships were imprisoning a man for doing what was once, according to the law, his right.

The second problem arises on what can be called a procedural level. Whilst the law in theory may hold no distinction between a spouse or any other person, in practice when the case comes to court there will be difficulties in proving that rape in fact took place. This is due to the fact that in marriage, sexual relations are to be expected, and if the defense claims consent, then the evidential burden is a very difficult burden for the prosecution to discharge. [5]

The very definition of consent can also lead to problems and deadlock, since social norms permit a varying level of physical intimacy (and freedom) depending on the relationship between the parties.

[edit] References

Bergen, Raquel Kennedy, "Marital Rape" on the site of the Applied Research Forum, National Electronic Network on Violence Against Women. Article dated March 1999. (Retrieved February 8, 2005.)
Easteal, P. Voices of the Survivors, Spinifex Press, North Melbourne, 1994.
Finkelhor, D. and Yllo, K., License to Rape, The Free Press, New York 1985.
Gan, K., Sex a conjugal right, on the site of Malaysiakini. Article dated September 2004. (Retrieved April 20, 2005. Original link is dead, substitute link is to the Internet Archive, and is dated October 12, 2004.)
Russell, Diana E.H., Rape in Marriage Macmillan Publishing Company, USA, 1990.
The American Bar Association, Facts about Women and the Law. (Retrieved April 20, 2005.)
General Assembly resolution 48/104 of 20, Declaration on the Elimination of Violence against Women, on the site of the Office of the United Nations High Commissioner for Human Rights, December 1993. (Retrieved April 20, 2005.)
—, Marital Rape, on the site of Abuse Counseling and Treatment, Inc. (Retrieved February 8, 2005.)