There is no such thing as marital rape

Devisha Vythelingum

(Image Credits: hellodoktor)

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Breaking Free: The C-word 

Instead of focusing on the type of relationship within which rape has been committed and make the criminalisation/prosecution of rape dependent upon that relationship, focus should instead be on non-consensual sexual intercourse, regardless of the relationship between the perpetrator and the victim. Sex without consent is rape.

Surprisingly, only 8 European countries out of 31 (the UK comprising of England and Wales, Scotland and Northern Ireland, Ireland, Belgium, Cyprus, Luxembourg, Iceland, Germany and Sweden) have drafted legislative provisions about rape with consent-based definitions. The remaining 23 European countries still define rape as physical force or threat thereof, coercion or inability to defend oneself. Defining rape as intercourse with the absence of consent is a recognised international human rights standard. The Council of Europe’s Convention on preventing and combating violence against women and domestic violence (The Istanbul Convention) demands that all signatories criminalise all non-consensual acts of sexual violence. However, despite the fact that the Convention has been ratified by over 20 European counties, their legal provisions about rape still need to be amended.

The lack of a consent-based definition of rape encourages social beliefs that rape is justified in certain circumstances and that it is not a straightforward crime which can be prosecuted the moment it has happened. This ultimately gives a leeway for the acceptance of marital rape or the belief that such thing cannot happen within the marital contract. Moreover, the fact that rape is defined as a physical force from which the victim cannot defend herself gives the chance for perpetrators to advance the argument that the victim did not try to fight back when the crime has been committed and because she “wanted” it (there is such a thing as “involuntary paralysis” people, which leave some women unable to oppose the assault). It also creates a perception that there should be “model” rape victims (that they should fight back, should not have been drunk or worn revealing clothes) to qualify as victims of rape. This encourages the “it is rape UNLESS” notion and puts focus again on the victim rather than on the perpetrator. Having “model” rape victims ultimately gives the chance to not include the married woman/child/minor in the set.

A lot of jurisdictions also believe that consent is immaterial where the rapist is in a position of authority and the victim is usually 18 years old. Some countries such as Oman or the Philippines do not think consent should be an issue where the victim is physically or mentally disabled. In South Australia, consent is immaterial if the perpetrator is a person of authority and the victim is under 18 years old. This is in addition to any person under 17 years old, or a person who is intellectually disabled or unable to understand the nature or consequences of the sexual intercourse. In Denmark, consent is not important if the victim is under 18 and is the rapist’s child, step-child or student or is involved in prostitution or if the victim is in one of “certain patient, detainee, employee” relationships. In El Salvador, consent is immaterial for anyone under 15. Consent is also immaterial in Italy if rape is committed by a family member or another person in a position of trust and the victim is under 16 years old. In Serbia, there is no such thing as consent if the victim is mentally or physical disabled and does not fight back or the perpetrator has abused a position of power. In Belgium, consent is immaterial where violence, coercion or ruse is used or in the case of physical or mental disability of the survivor. Under English law, rape and sexual assault or sexual activity with a child is an offence only if the child is under 13, despite the age of consent being 16. Sexual intercourse with a child aged between 13 and 16 years old is not a crime as long as the accused reasonably believed the child was over 16 years old at the time of the intercourse. The age of consent in Sweden is 15 years old but rape is not a crime unless the accused knew or ought to have known the girl was under that age.

The above not only asks the victim to prove that rape has been committed against her in various situations but also exonerate rapists and ignore situations where sexual intercourse is considered as rape when it is done with children/minors. It also turns a blind eye towards those situations where men in positions of power get or have to get married to young girls when they have raped or have had sexual intercourse with them to escape prosecution. However, most importantly, it completely brushes off the fact that consent is the most important thing to consider before having sexual intercourse by creating situations where it would not be deemed to apply. It is clear that the legislative provisions above put consent in a grey area and gives the impression that despite it not having been given, it can be taken to have been impliedly given in certain situations. This brings us back to the state of marriage where the consent of the wife was always deemed to be impliedly given to her husband. The laws mentioned above also give the green light for those states to again legalise crimes which would have been otherwise outlawed.

Consent is an absolute clear condition for sexual intercourse. It cannot be assumed to have been given when it has not been clearly communicated. If it has not been clearly communicated, then it has not been given. Simple. The consent debate is far more important than the there-is-such-a-thing-as-marital-rape debate because it holds accountable those states which do not recognise marital rape as a crime. If every state adopts a consent-based definition of rape, the focus will be more on the fact that there has been non-consensual sexual intercourse rather than on the fact that it is rape as long as there is no husband-and-wife relationship. The problem with the latter situation is that it allows crimes which have been committed to be unprosecuted only because they occur within the marital contract. In addition, it also creates other crimes such as child rape, child and/or forced marriages, sexual intercourse with minors and forced sexual intercourse, crimes which would have otherwise been prosecuted. The concept of marital rape also ignores those jurisdictions where it is not outlawed and provides a green light for sexual violence to be committed against women only because they have been married. Often, the discourse is not as straightforward because the different layers which society has attributed to rape as a crime: it being a breach of the woman’s honour, the marry-your-rapist propaganda, child marriages, child rape, sexual intercourse with minors which ultimately leads to marriages in certain jurisdictions amongst others. It is the “marital” in “marital rape” which creates the perception that it should be treated differently than the crime of rape, which then gives a leeway for states which do not believe in the crime to deem it not fit for prosecution.

Moving the focus on consent will change the perception that society has on women as being the absolute properties of their husbands, such that their voices and dissent will be recognised and acknowledged when they say “no” or even when they remain silent to sexual intercourse.  Indeed, even starting a conversation about consent allows the recognition that women have the inherent right to say “yes”, “no” or remain silent to sexual intercourse even if they are married. It will also identify those situations where certain categories of people such as children or minors cannot be deemed to have the capacity to have consented to sexual intercourse which means that any sexual intercourse with a child/minor, whether within a marriage or not, is a crime, is rape. Hopefully, it will bring focus on the illegality of child marriages which ultimately lead to child rape, something which cannot be considered as otherwise only because a child has been forced to get married. Now some may point out that turning the focus on consent instead is confusing and men will never know when they have the green light or not. Some of you might even drop out of the consent wagon because a child cannot possibly be able to give his/her consent and therefore maybe rape should be defined otherwise. But sexual intercourse with a child should not be allowed anyway and in those situations, no grey area in regards with consent can be a strong argument enough to justify sexual intercourse with a child. If you need further help, try to look for an active “yes” instead of a “no” from a woman.

In addition, focusing on consent in turn focuses on the voice of the survivor. When she does not agree to sexual intercourse, the act of rape cannot then be held against her at the detriment of her honour. Consent recognises the choice of a woman and her ownership of her body such that rape committed against her will not be seen as pre-marital sex which is taboo in her society but as an assault on her body. Consent also segregates consensual sexual intercourse from non-consensual one such that focus on the latter takes precedence whenever rape has been committed and is declared a crime instead of focusing on the misconception that it should be seen as pre-marital sex first. Women will then be able to take ownership of their own selves which will prevent them from being forced to get married to their rapists. There is also a need to stop viewing women as bodies of morality and a reflection of the purity of societies such that any sexual violence committed against them marginalise them instead of their perpetrators. Stop putting a garland of sanctity around a woman’s/girl’s hymen which is deemed to belong to everybody else but her. Such societal beliefs ultimately breed into the creation of legislative provisions which give power not to the abused but to perpetrators and lead to the misbelief that rape is a dishonour to the woman and she has to be saved from it, most often by the one who assaulted her. Rape, regardless of whether it has been committed within the institution of marriage or not, should be seen as any other crime, as sexual violence, as an assault on women instead of a crime which robs them of their dignity, reputation and honour, concepts which have been created by systems put in place to further control women. I have always believed that women were empowered since the day they were born and it is society which made us feel that they need help to be. They are already empowered and have a voice. Nobody has to help them to acquire one. It is only when states and societies encourage patriarchal systems and legislative provisions at their disadvantage that their freedom is curtailed. Let women be.

Just as anyone who does not believe in feminism is essentially a sexist, any person who believes that rape within a marriage cannot happen, has committed, is committing or will commit rape. My logic is simple. Therefore, let me repeat it for those who did not hear it at the back or even in the front: Consent, Consent, Consent. For those who do not understand basic humanitarian language, because they are still living in Sir Matthew Hale’s era, let me help you too: even if the wife hath given her consent for marriage, she hath not given herself up sexually unto her husband and can retract her consent. No means no. Silence means no. Yes means yes. Know the difference.

There is no such thing as marital rape. There is just rape.

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https://www.amnesty.org/en/latest/campaigns/2018/04/eu-sex-without-consent-is-rape/

https://www.independent.co.uk/voices/rape-conviction-laws-marry-rapist-jordan-egypt-morocco-tunisia-came-from-french-colonial-times-a7872556.html

https://d3n8a8pro7vhmx.cloudfront.net/equalitynow/pages/208/attachments/original/1527096293/EqualityNowRapeLawReport2017_Single_Pages.pdf1527096293

https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2019/progress-of-the-worlds-women-2019-2020-en.pdf?la=en&vs=3512

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