‘Marital rape’ refers to the act of forcible sexual intercourse by a man with his wife without her consent. While rape is a serious criminal offence in India, marital rape is not illegal by law. Marital rape is a widespread problem for women that has existed for centuries throughout the world. The first ever documented legal statement regarding marital rape occurred in 1736. Sir Matthew Hale was an English jurist and Chief Justice of the Court of King’s Bench who asserted that a husband could not be guilty of rape for having sexual intercourse with his lawful wife. This idea was based on prevailing societal attitudes and beliefs about marriage, property rights, and the concept of ‘consent’ as it was understood at the time.
This statement became known as the ‘Lord Hale Doctrine’ and represented a common law marital rape exemption, under which husbands could not be accused of committing the crime of rape against their wives. Instead of basing his doctrine on legal argument, however, Lord Hale relied solely on the theory of irrevocable consent to justify the marital rape exemption. This common law gained more traction in the middle of the 18th century when Blackstone put forth the theory of marital unity, which viewed the husband and wife as becoming one in marriage. This spousal exemption from rape prosecution persisted in common law jurisdictions for centuries, reflecting deeply ingrained social norms and unequal power dynamics between men and women.
During the 1980s, a few countries like South Africa, Scandinavian nations, and Communist blocs made some progress in changing the laws about rape within marriage. The majority continue to permit rape or sexual assault within marriage by according it to a lower level of criminality than extramarital rape or sexual assault, by criminalising only certain kinds of marital rape, or by criminalising only first-degree rapes. Interestingly, some places actually made it worse in an attempt to make things better. An attempt was made to broaden the rule’s scope by including instances where women raped their husbands, ostensibly in pursuit of gender fairness. However, this expansion masked the inherent bias of the institution, which predominantly endangers women’s lives. It’s important to acknowledge the potential existence of male rape victims, yet leveraging this fact as a rationale to avoid criminalising marital rape raises significant concerns.
Nonetheless, we must be attentive to the fact that pointing out the possibility of male victims should not be employed as a justification for evading the criminalization of marital rape. Such an approach carries troubling implications.
Owing to this historical acceptance of marital rape, various experts and scholars have taken existing ideas like feminist theory, theory of equality and contract, social constructionism, post-modernism, and post-colonialism to explain why marital rape happened and why it was accepted by society and the law for a long time. Scholars who study feminist theory say that marital rape was a way for men to control and dominate women within marriages, using the traditional family structure. Some experts even criticise the concepts of ‘family’ and ‘marriage’ as being outdated, feudalistic, and harmful, like systems that used to keep people enslaved. Feminists use different phrases like ‘patriarchal terrorism’ and ‘license to rape’ to talk about how men used their power to control women.
However, we must note that over the course of time, the way societies view marriage, gender roles, and individual autonomy has undergone a significant transformation. The embedded idea of sexual male dominance which was seen as a norm in marriage now started to be viewed as a violation of women’s rights. It started to be perceived as a breach of women’s rights and an inequitable legal principle. In recent years, numerous legal systems have revised their statutes to abolish the marital exemption for rape, acknowledging that consent within marriage holds the same significance as consent in any other situation. Consent involves granting permission (even through implicit or indirect ways) for specific actions to occur. However, marriage encompasses a multitude of intricacies that often go unnoticed within societal discussions. These revisions are part of wider initiatives aimed at acknowledging and combating gender-driven violence and bias within the legal structure.
In conclusion, the historical context of marital rape and its evolution within contemporary law reflects the deeply rooted societal norms and power dynamics that have perpetuated its acceptance for centuries. As societal views continue to evolve, there is growing momentum for change. The movement to eliminate the marital exemption for rape reflects a commitment to rectify historical injustices and confront deeply ingrained gender biases. By acknowledging that consent within marriage is as vital as consent in any other context, legal reforms are gradually dismantling archaic notions that perpetuate gender-based violence. As history serves as a reminder of past shortcomings, the current shift toward recognizing and addressing marital rape paves the way for a more equitable future, free from the constraints of unjust legal doctrines.
