There is no such thing as marital rape

Devisha Vythelingum

(Image Credits: Hanna Barczyk for NPR)

 

Something happened last night

Or was it in the morning or afternoon

I do not know now

My beloved came to see me in the bedroom

During the football match break time

Not now, I whispered oh so kindly

For sexual desires I’ve known and lusted for

But not tonight my love, just not tonight

Pinned my hands to the bed he did

Choked my throat

Tore my clothes

Left him golden in sweat

Left me broken in blood

The red bindi on my forehead

The Christian vows I said

The Nikah he led

Signs of love, I cried

Signs of ownership, society replied

Chastity

Honour

Sexual identity

All his when he is here

All gone when he is not

Normal, everyone says

A contract from above

This tragedy of mistaking abuse for love

-devisha vythelingum

Violence against women is often driven by historical social norms which encouraged male dominance and control not only over the lives of their partners but also over their sexual autonomy. Wives were once expected to have sexual intercourse with their husbands because marriage gave their husbands complete entitlement over them. Therefore, rape within a marriage was an impossible crime. It was not until the 20th century that marital rape, which is forced sexual intercourse between a husband and a wife without the latter’s consent, came to be considered as such. However, marital rape is still not criminalised in the domestic law of 111 countries because a husband’s prerogative over his wife and the latter’s expected relinquished control over her own body, to her husband, is still the norm and the law.

The persistence of belief systems which dictate that women are expected to be submissive and obedient to their male partners often give grounds for partners to commit sexual violence against them, notably marital rape, when they act contrary to patriarchal expectations. . In the previous 12 months across the world, 1 in 5 partnered women aged between 15-49 have been victims of violence by their partners. Some governments still uphold patriarchal belief systems either by the lack of protective measures for women in their legislature or even punitive ones for when women deviate from patriarchal standards. Today, 15.1% of women across 70 countries still hold these obligations to be true and the absence thereof as justifying abuse. These social norms date back to the 18th century and stem from the framework of a popular institution which you may just have heard of: marriage.

History, thou sexist mess!

Rape article

(Image Credits: Emil Lendof/The Daily Beast)

Before the 20th century, a woman was considered to be the property of her father until her marriage to her husband. Upon marriage, the legal identities of a man and a woman were deemed to be merged through the concept of marital unity under which they were considered as one person in the eyes of the law and society. Therefore, the original concept of marital unity was of two persons forfeiting their legal existences and independent rights to become one. However, the marital contract was interpreted not as spouses becoming one but as an opposition of status with the husband becoming the sole possessor of rights and the wife, his charge. This resulted in only the wife forfeiting her legal existence and her independent rights, which were transferred within the control of her husband. In return her husband was meant to protect her, and her duty was above all to remain obedient:“it is for the wife to love, honour and obey; it is for the husband to love, cherish, and protect.”

As the husband was solely responsible for his wife and because the latter had no self-autonomy of her own, the husband was accountable for his wife’s actions. Thus, the law gave the husband the green light to use any means he deemed to “correct” his wife if he thought she was misbehaving, correction which was considered to be akin to that which the husband would apply to his children.

Sir William Blackstone defined this relationship as “coverture”:

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing. The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children.”

It is through this norm, which is symbolised by these words, which led violence against women to become normalised and legalised. Essentially, a man could subjectively assess when, in his own perception, a woman was “misbehaving” such as to deserve punishment.

The legal right of the husband over his wife also included the right over her sexual autonomy. 18th and 19th century law defined sex within a marriage as fundamental and Blackstone saw the institution of marriage as a means to regulate man’s natural sexual instinct. At a time when pre-marital sex was taboo, sex between a man and a woman was only socially acceptable within the institution of marriage. Consequently, marriage was seen as the only means through which a man could let off his natural steam. Clearly they did not understand the concept of “self-control” and with the amount of responsibilities they had on their head, god forbid they were questioned on that “instinct” right? By keeping sexual intercourse within marriage, the purpose of sex, and in turn marriage, also became procreation, the only means through which men could create their offsprings: “That of husband and wife; which is founded in nature, but modified in civil society; the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated.” Surely women could not choose to take away that autonomy, legal and independent right for that would have caused injustice, sexism and a complete devaluation of the self of the better half. What? No, it is different when the same is done to women! Differently the same, yes.

As sex came to be defined as a man’s natural instinct, which could only be confined within the institution of marriage, it became a husband’s most basic right within the marital contract and reflected his sexual superiority over his wife. Therefore, the marital contract included the significant sexual contract, the former deemed not able to exist or function without the latter (a buy-one-get-one-free package). While sex was considered the husband’s basic or conjugal right, the woman’s role was that of subjecting to her husband’s needs as part of her duty of cohabitation. Such that refusing to engage into sexual intercourse became not only a breach of the wife’s duty but also of the purpose of marriage: “sexual indulgence is mutually permitted under healthy restraints; woman’s condition becomes one of comparative subjection[…]Living in the same house, but willfully declining matrimonial intimacy and companionship, is per se a breach of duty, tending to subvert the true ends of marriage.” Thereby, the sexual core of the marital contract provided an immunity to husbands where the wife was forced to obey and submit to the sexual right of her husband.

In the 17th century, the Chief Justice of England Sir Matthew Hale codified a husband’s right to sex into the law which ultimately created the marital rape exemption: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” By this means, the husband was allowed to claim not just his wife’s body but also her right to consent and sexual will. This dictated that sexual intercourse within a marriage was always impliedly consented by the wife, removing any need to ask for her sexual will first. In other words, any sexual activity within the marital contract was deemed to be consensual because of the husband’s sexual legal privilege and immunity.

Despite feminist protests in the 19th century, husbands had a legal right to sex within a marriage in the Western jurisprudence until the 1970s. It was not until 1991 that this was overturned in R v R where the idea that a wife’s permanent consent, in advance to sex was deemed as mere fiction. Finally, the courts recognised that a rapist is a rapist regardless of the relationship he has with the victim. Marital rape was codified as a crime and the wife’s sexual autonomy restored. However, despite the criminalisation of a husband’s alleged sexual right over his wife, the husband’s ownership of his wife translated into the normalisation of control of women by men irrespective of the relationship between them. As such, gender inequality became a time traveller.

Same concept, different time

rape 2

(Image Credits: CALARTS)

The different layers of gender inequality subsumed in the marital and sexual contract survived though time and emerged in new protective layers, enveloped in a seemingly different couture coat, but still maintaining the same idea of gender discrimination beneath.

  • Man’s natural sexual instinct and victim blaming

(Images Credits: safercampus tumblr; ZUMA press)

Sex is still considered a man’s natural instinct or need. The belief that a man’s sexual superiority/need is his right within the institution of marriage, has managed to transcend the borders of the marital contract to land upon any interaction between a man and a woman. This is irrespective of the relationship between the two. A man’s sexual need, whether he is married or not, is still considered as his natural right which he can bear no fault for. His sexual instincts are seen as absolute and unquestioned, such that it is considered his inherent nature to be aroused and uncontrollable whenever there are women around. As a result, whenever there are instances of sexual violence in social settings, it has been instilled that it is always the woman’s fault and that she should have known better because one can certainly not blame a man for his nature:

Rape is the woman’s fault                      She asked for it                     She had alcohol

 

She was smoking                                           She was going out at night                  She likes sex

 

She has/had many sexual partners                        She is not a virgin

 

Boys will be boys                                  She tempted him                   She was drunk

 

It was because of what she was wearing                                 She was out with her male friends

 

She is beautiful                                               She said “no” but she meant yes

 

She should be flattered

 

She was wearing a mini skirt                 She was wearing shorts                    She looked at him

 

She was flirting with him                       She smiled at him                She was out alone

 

The list is endless. The limits on a woman’s autonomy have also reinforced a man’s alleged natural sexual instinct. Women are often discouraged, forbidden to go out at night or dress the way they want to because it is believed this will cause men to commit sexual offences against them. In addition, rape is often considered to bring dishonour not to the rapist but to the survivor and her family. Society in this way does not condemn the perpetrator but the victim, blaming her for what she should have or should not have done to prevent sexual violence from being committed against her. Surely, if men have supposedly natural sexual instincts and are committing sexual violence as a result, are they not the ones who should be kept inside instead of women?

  • Her body, My property

her body

As mentioned above, women were once considered to belong to their fathers until this responsibility was passed onto her husband. This disillusioned concept advocating for the ownership and control of women, as well as their sexuality, still prevails today under diverse paradigms. For instance, girls or young women are married off at an early age because controlling their sexuality and safeguarding their virginity are seen as ways to protect their family’s honour. Furthermore, the doctrine of Sir William Blackstone, which allowed a husband to “correct” his wife whenever he subjectively thought she was misbehaving, still stands firm today but is translated differently. In various parts of the world, honour killings are carried out in cases where women have sexual intercourse with men outside of the institution of marriage, have a boyfriend, commit adultery, are raped or choose a partner which her family disapproves of (an estimated 1000 honour crimes are reported in Pakistan each year). As such, a woman’s body and sexuality are considered not hers but owned by the men in her family in the name of honour, such that if she behaves in a manner which compromises that ownership over her, they are entitled to “punish” her. Moreover, this culture of victim blaming as outlined above encourages the notion that rape brings dishonour not to the rapist but to the survivor’s family. This in turn sheds light upon this misconception that a woman’s body is the property and honour of her family’s, instead of hers. In this way, her sexuality belongs to everybody else but her, and compromising them brings shame to everyone else, but her.

The control over a woman’s body and sexuality has also been codified in several laws. While sex is considered a man’s sexual instinct, the discussion over what it means for a woman stops at procreation. Clearly, there is no such thing as female desire/lust/pleasure. As a result, many countries still outlaw abortion, viewing procreation and a woman’s role as a mother a natural process which cannot be tainted by a woman’s will to decide otherwise. Governments across several countries today, which are mostly comprised of men, still adjudicate and make decisions over women’s bodies and what they can and cannot do with them. The concept that sex is an avenue for men to have offspring and women to honour their role as homemakers is mirrored in the fact that some countries still have not abolished the ban on abortion.

As far as marital rape is concerned, despite its criminalisation in some parts of the world, a husband’s ownership of his wife is still prevalent in today’s era in various countries, resulting in the implementation of legislation, or the lack thereof, to protect the sexual immunity of husbands. In other words, her body but still his property.

….

To be continued…

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