Criminalizing Marital Rape: A Comparison of Judicial and Legislative Approaches
Fus, Theresa, Vanderbilt Journal of Transnational Law
Even though many countries still permit husbands to rape their wives with little or no consequence, there is a growing trend that marital exemption is unjust and has no place in a civilized society. Recognition of the inappropriateness of marital exemption is, however, only the first step towards its elimination. To effectively equalize treatment of marital and non-marital rape, legislatures and judiciaries must take action. Several countries have already been host to the abolition of marital immunity, but their approaches may not be the most effective. This Note examines the experiences of England and Canada as examples of judicial and legislative abolition of marital exemption, respectively. The Author explores several factors that would lead to effective change, including timely alignment with societal morals, thorough and thoughtful consideration of the issues, and legitimacy in the eyes of citizens. After reviewing the effectiveness of approaches such as those employed in England and Canada, the Author argues that an even better method would rely on equal protection provisions found in state constitutions and international treaties.
TABLE OF CONTENTS I. INTRODUCTION II. ENGLAND: A MODEL OF THE JUDICIAL APPROACH A. Chipping Away at Common Law: The Path Leading to Abolition of Marital Immunity B. Public Response to Judicial Criminalization of Marital Rape III. CANADA: A MODEL OF THE LEGISLATIVE APPROACH A. Feminist Activism and Parliamentary Notice of a Problem Leading to a Change in Marital Rape Law B. Reactions to the Passage of Bill C-127 IV. SHORTCOMINGS AND SUCCESSES: THOROUGH AND TIMELY REVIEW VERSUS LEGITIMACY A. The Judicial Approach 1. Advantages: Holistic Review of an Historical Concept 2. Disadvantages: Legitimacy, Retrospectivity, and Case Dependency B. The Legislative Method 1. Advantages: Legitimacy and Prosecutorial Independence 2. Disadvantages: Legislative Delay and Abstract Review V. PROPOSED SOLUTION: EQUAL PROTECTION CLAUSES AS A TOOL FOR CRIMINALIZING MARITAL RAPE VI. CONCLUSION
For centuries, husbands around the world have been granted marital exemption (1) to the crime of rape. It was not until the last half of the twentieth century that marital rape was even recognized as a legal problem. (2) Prior to that time, most believed that it was impossible for a husband to rape his wife. (3) This conclusion was justified under three separate theories: the implied consent theory, the unities of person theory, and the property theory. (4)
The most common theory behind the impossibility of marital rape is the implied consent theory, which is structured around contract law. (5) Stated succinctly by Sir Matthew Hale in the seventeenth century, "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract." (6) Hale believed that "matrimonial consent" was irrevocable. (7) Variations on Hale's strict irrevocability principle allow for a wife to revoke her implied sexual consent only in times when "ordinary relations" in the marriage are suspended. (8) For example, a woman can revoke her implied consent when she and her husband are separated. (9) Until recently, this view was widely accepted. (10)
The unity of person theory, on the other hand, does not even recognize the wife as a separate being capable of being raped. (11) This theory stems from the belief that when two people marry, they become one. (12) The being of the woman is incorporated into that of the husband such that the existence of the woman is effectively suspended during marriage. (13) Marital rape is thus impossible because a husband is not capable of raping himself. …