Consent Belongs in Marriage Too
By: Nicole Bedford
Tags: Women, Feminism, World, Rape, Consent

The History and Prevalence of Marital Rape

Wikipedia states that Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is an essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse.

Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized. — Source

In 2006, Approximately 10–14% of married women are raped by their husbands in the United States. Exactly one-third of women reported having ‘unwanted sex’ with their partner. To reiterate, historically, most rape statutes read that rape was forced sexual intercourse with a woman, not your wife, thus granting husbands a license to rape. — Source

In fact, as late as 1992 marital rape was still legal in the United States and only became illegal in 50 states in 1993. In 20 states, the District of Columbia, and on federal lands, there are no exemptions from rape prosecution granted to husbands. However, in 30 states, there are still partial exemptions given to husbands from rape prosecution. In most of these 30 states, a husband is exempt when he does not have to use force because his wife is most vulnerable (e.g., she is mentally or physically impaired, unconscious, asleep, etc.) and is unable to consent. Women who are raped by their husbands are likely to be raped many times — often 20 or more times. They experience not only vaginal rape but also oral and anal rape. Researchers generally categorize marital rape into three types; force-only rape, battering rape and sadistic. — Source

Fast forward 13 years later, October 2019, Refinery29 published an article during National Domestic Violence Awareness month on marital rape. The updated statistics show 17 states still have existing loopholes for marital rape including Alabama, Alaska, Connecticut, Idaho, Iowa, Kentucky, Maryland, Michigan, Mississippi, New Hampshire, New York, Ohio, Oklahoma, Rhode Island, South Carolina, Washington, and Wyoming.

The law exempts prosecution of spouses who rape their wives while they are incapacitated, drugged or otherwise mentally impaired or unconscious. Other facts stated in the article about marital rape show that 1 in 10 women still experience rape at the hands of their spouse. Marital rape remains 4 times more prevalent than stranger rape women are more likely to be sexually assaulted by someone they know.

The Historical Allowance of Marital Rape

Rape in a historical context, in much of the world, was viewed as a crime of tort of theft of a man’s property, that being the husband or father.

Women had no autonomy, they were regarded as property, much like cattle, and ownership was passed from father to husband; this passing of ownership is why in many countries’ women take her husbands’ last name during subsequent nuptials to show her new master.

Much like in the Hulu smash it based on Margaret Atwood’s novel of the same name, The Handmaid’s Tale, in the fictional Gilead, fertile women are handmaid’s like in the Bible and bear the children for the Commanders and their barren wives. Each handmaid takes the name of her commander to show ownership. Rape is the means on conception used in the book and tv show on the grounds of biblical principles outlined in the Old Testament.

For example, if your commander’s name is Fred, you the handmaid would so be called Of-Fred because he owns you. Similarly historically, women were owned by their father first and their husband second and had no agency of their own not until the 20th Century.

In the case of rape, it was seen as a crime of vandalism or tarnishing of the father’s or husband’s property, in so far as, the crime was not seen as levied against the victim but to her owner, the husband or father. Thus, a husband could never rape his wife and she belonged to him, being his property to do what he wanted with.

Sir Matthew Hale (1609–1676) described in History of the Pleases of the Crown published posthumously in 1736 asserted that a husband could not be charged with the rape of his wife because the husband owned her by right of law. He wrote, “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”.

Similarly, in American law before the 20th Century, the law of coverture enacted a similar sentiment, that is, there was a legal doctrine under which, upon marriage, a woman’s legal rights were subsumed by those of her husband.

Once unified in marriage, as outlined in the Bible, two becomes one, and a spouse could not be charged with raping one’s spouse, just as you cannot be charged with raping oneself.

English Common Law had much influence on these laws in the United States and natural throughout the world thanks to colonialism. A wife was under the law the sole property of the husband this wasn’t overturned in the United States until late in the 20th Century.

Over 40 countries in the world still have no legislation against marital rape on the books. This includes several countries in the British Commonwealth, including my country of birth, The Bahamas.