NoToRape.com

July 9th, 2009
Uncategorized

From notorape.com

Section 375(4), known as the “marital rape exemption”, provides that non-consensual penetration by a man of his wife’s vagina, using his penis (“marital rape”), will not constitute the offence of “rape” except in limited circumstances.

Section 376A(5) provides a “marital rape exemption” whereby this offence is not committed by a man who uses his penis to penetrate the vagina of a girl who is under the age of 16, provided they are married to each other.

This sounds like one of the privileges of being married is access to a woman. It also sounds like once a woman says “I do”, the man can take it that she can never say “I don’t” because it doesn’t count, or even worse, she doesn’t mean it when she says it because she has already said “I do”. Why would a country’s law permit this distressing unfairness to it’s married women citizens? Please sign the petition to get rid of it.

Michelle J. Anderson, said it better:

It presaged the devastating impact that a prior sexual relationship between a defendant and a complainant has on a claim of rape today.Substantial bias against sexually active women who are raped by their intimates takes the form of a common but improper inference of consent to the sex alleged to have been rape based solely on the existence of a prior intimate relationship between the parties. The improper inference of ongoing consent in sexual relationships is a doctrinal problem that affects all intimate rape, regardless of the marital status of the parties.

History of the Marital Rape Exemption (from the same paper)

The traditional definition of rape under English common law was unlawful sexual intercourse with a female without her consent. In his leading treatise on criminal law, Rollin Perkins explained that the marital rape exemption was built into the definition of the crime  through the word unlawful. Any sexual intercourse, even forced,  between a husband and his wife was lawful, and thus excluded under  the definition of rape. Perkins wrote, “the true reason why the  husband, who has sexual intercourse with his wife against her will, is not guilty of rape is that such intercourse is not unlawful. . . . Sexual intercourse between husband and wife is sanctioned by law; all other sexual intercourse is unlawful.” Three major justifications existed for the designation of all sexual intercourse between husband and wife as lawful under English common law: the property theory, the unity theory, and the ongoing consent theory.

Modern Justifications (this section discusses the law in different states of US)

First and foremost, the requirement of separation or divorce in thirteen states before certain sexual offenses are legally cognizable rests on the classic assumption of ongoing consent in a marriage. Without separation or divorce, there is no nonconsent associated with the sexual interaction and, hence, no crime.
…
A number of scholars have argued that a woman who has previously consented to sexual intercourse with a man should be assumed to have given her ongoing consent to future sexual acts.
…
Second, marital exemptions for mentally incapacitated rape and unconscious rape in twenty states derive from a belief that nonforcible spousal sexual offenses are not harmful enough for the justice system to criminalize because of ongoing consent. Some scholars have argued that the previously discussed presumption of ongoing consent should extend to circumstances in which a woman cannot consent to sexual acts because she is incapacitated or unconscious.

It becomes depressing later when the paper quotes others and one gets the sense that because it is too troublesome to deal with marital rape through the criminal law system so we’ll just put it aside as an immunity because it doesn’t hurt a great deal.

Michael Hilf argues that this kind of marital immunity is justified by the lesser expectation of personal autonomy that women have when they enter marriage…Hilf suggests the circumstances in which “the public policy favoring spousal immunity” outweighed the wife’s “interest in private autonomy.” He asks, “Do we quite seriously want to subject to criminal liability a husband who begins to engage in sexual contact with his sleeping or intoxicated wife? To ask the question is to answer it.”

In an influential article in the Columbia Law Review, Donald
Dripps crystallizes a theory about sexual intercourse under these circumstances with his notion of “implied authorization” for sex. He poses a hypothetical set of facts: A married couple returns home from a party very drunk. After his wife passes out “unconscious on the bed,” the man “engages in coitus with her.” Dripps argues that, although the wife never consented to the sexual act, he enjoyed “implied authorization” to penetrate her without her consent. According to Dripps, the man’s “implied authorization” to have sex derives from the fact that the woman has, “while sober and over a long course of dealing, approved of a complex relationship in which sex plays a prominent role.” Dripps’s argument for “implied authorization” for unconscious, nonconsensual sexual relations is one modern manifestation of the ongoing consent ideology.

Third, the wholesale downgrading of spousal offenses, the application of lesser penalties to these offenses, and the refusal to prosecute them without a prompt complaint in seven states suggest that some scholars and legislators believe that spousal sexual offenses in general are not important enough or harmful enough for the justice system to criminalize…

Consequently, people tend to believe that wife rape is a less traumatizing experience to victims than is stranger rape. For
example, in a 1981 statement in front of the Senate Judiciary
Committee, Alabama Senator Jeremiah Denton evaluated “whether the anguish caused by intercourse forced by a husband is equivalent to that inflicted by intercourse forced by someone else” and concluded that the “character of the voluntary association of a husband and wife . . . could be thought to mitigate the nature of the harm resulting from the unwanted intercourse.” Hilf likewise argues, “the harm caused by spousal rape would seem to be less severe than the harm caused by non-spousal rape…”

The paper goes on to explain some basic ideas about women’s rights over their bodies:

As a matter of principle, the argument in favor of the marital exemption for mental incapacitation or unconscious rape ignores or greatly undervalues a married woman’s sexual autonomy—her freedom to decide whether and when to engage in intercourse. A woman has the right to reserve her body for her own ends and not to be used as an object for someone else’s ends. Affording married women this right is crucial to their dignity and equality under the law. It is this right that rape laws should be designed to protect.

Hilf argues, however, “A married person has, to some extent, a
lesser expectation of personal autonomy; therefore, the affront to one’s autonomy is less in the case if spousal rape than in the case of ordinary rape.” While married individuals may have lesser expectations of certain kinds of autonomy, it does not follow that in the sexual realm, a woman’s autonomy must bow to the demands of her husband’s interest in obtaining sex. A man’s desire for an orgasm simply does not outweigh his wife’s interest in avoiding the invasion of unwanted intercourse. A married woman’s expectation of sexual autonomy should be no less than a single person’s.

Link to the petition.

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