Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women's human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law. The Marital Rape Exemption has Profound Implications for the Legal Personhood and Equality of Women The marital rape exemption in criminal law has been condemned by women's movements in Europe and America from the late eighteenth century onward, forming a critical part of the strategy to challenge legal doctrines such as coverture that denied women a separate legal existence from their husbands, binding and absorbing them as their husband's property. 1 Similar legal concepts continue in the law and custom in some countries as witnessed in the persistence of marital rape exemptions even where extensive reforms have been made to address domestic and other forms of violence against women. As Fareda Banda points out in this symposium, practices such as brideprice (called lobolo in certain parts of Africa) entrench the notion of the wife as property of her husband and justify the husband's right to use his wife for sex, even without her consent. 2 The struggle to end legal impunity for marital rape, therefore, is inexorably bound to the larger struggle for women's equal human rights within intimate relationships and within society as a whole., and AJIL Unbound for organizing this symposium on our essay on international law and the criminalization of marital rape. We further express our appreciation to all the contributors who have responded to our essay and have deepened the conversation with their insights and expertise.
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Criminalization of sexual violence against women in intimate relationships must form a central part of the human rights agenda for achieving gender equality. Failure to criminalize sexual violence perpetrated by a husband (or intimate partner) effectively facilitates and condones a private legal space within spousal relationships where sexual assault and coercion are permissible. This legal abandonment of married women’s rights to liberty, autonomy, self-determination, and bodily security creates a class of women with lesser legal rights. The state’s insulation of marital rape from criminal sanction is also incommensurate with women’s equal citizenship and equal enjoyment of all other human rights. We argue that international law requires the criminalization of marital rape. We point to the ways in which international human rights treaties and other international instruments can assist efforts to end legal impunities for the sexual violation of women in intimate relationships. International law establishes a due diligence standard under which states are obliged to prevent, investigate, punish, and provide remedies for violations of human rights, regardless of whether the acts are committed by state or nonstate actors. This standard provides a powerful legal tool for the work of criminalizing and ending sexual violence in intimate relationships.
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This abstract provides a synthesized overview of the multifaceted global landscape surrounding marital rape, considering legal, cultural, societal, and human rights perspectives. The study delves into the diverse legal statuses across countries, highlighting the evolution of laws that either criminalize or fail to address marital rape explicitly. Cultural and societal attitudes play a pivotal role in shaping the prevalence and reporting of marital rape, with traditional norms and gender roles influencing recognition and response. From an international human rights standpoint, marital rape is increasingly recognized as a violation of fundamental rights, prompting global initiatives and agreements to address gender-based violence within marital relationships. Challenges such as underreporting, legal enforcement, and cultural barriers are explored, emphasizing the impact on survivors' access to justice and support services. The abstract also touches upon the progress made through increased awareness, policy reforms, and activism, while acknowledging the ongoing disparities in the pace and extent of change. Lastly, the abstract underscores the importance of acknowledging the physical and psychological consequences of marital rape, emphasizing the need for comprehensive support systems. The study suggests that the global perspective on marital rape is dynamic and requires sustained efforts for legal reforms, cultural shifts, and international collaboration to protect the rights and well-being of individuals within intimate relationships.
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This paper discusses whether criminalization of marital rape is the most suitable solution for protection of married women in India. Legally, Indian women are divided into three categories based on their marital status-single or divorced, separated and married1. While the first two categories are protected from rape, the law creates an exception for the last category. Legal protection from marital rape is only accorded to married women below 18 years of age. I intend to draw the attention of the reader to two points with respect to the legal immunity awarded to the husbands-One, the absence of recognition of the possibility of non-consensual sexual intercourse by a man with his wife who is above 18 years of age and second, the reluctance of the judiciary and the legislature to interfere in the holy institution of marriage. Criminalization of marital rape in India is perceived by many to result in criminal reform. In the backdrop of this, I argue that criminalization of marital rape will not be the " magical solution " , instead, I believe that it will create more problems than solutions for women in India, bearing in mind the patriarchal society that we live in, the attitudes of the judges towards the institution of marriage and the " impossibility of proving marital rape. " 2 While borrowing the idea from Flavia Agnes, I propose that a better way to achieve criminal reform is to include rape within the framework of domestic violence. This paper is divided into three parts. The first part discusses the current position of law on the issue of marital rape. The second part discusses the international obligations and the JS Verma Committee Report which has recommended criminalization of marital rape in India. The third part explores the idea of including marital rape within the framework of domestic violence, as suggested by Flavia Agnes and analyses the viability of criminalization of marital rape. Rape is defined as any non-consensual act of penetration of a " woman's vagina/urethra/anus/ mouth by the penis/mouth/objects/any other body part manipulated by a man or irrespective of the consent, when she is below 18 years of age " 3 in Section 375 of the Indian Penal Code after the 2013 amendment. Exception 2 of this section, which is often referred to as the marital rape exception, states that sexual intercourse/ sexual acts by a man with his wife is not rape if the wife is above fifteen years of age. On October 11, 2017, the Supreme Court held this exception as unconstitutional and stated that " sexual intercourse with a girl child under the age of 18 irrespective of the marital status would amount to rape " 4 but refrained from commenting on the legal status non-consensual sexual intercourse between a man and his wife who is above 18 years of age. Hence, the law, as it stands today, does not accord any protection from marital rape to women above 18 years of age. There are various international law obligations that support criminalisation of marital rape. This support can be located in international laws that are both general and specific in nature. The international laws that are general in nature provide/establish the necessity to uphold right to life, right to equal protection before law and right to human dignity etc.5 and the laws that are specific in nature emphasise the duty of the state to protect women against any form 1 Karuna Nundy; https://thewire.in/159074/marital-rape-exception-high-court/ 2 Saptarshi Mandal (2014) The Impossibility of Marital Rape, Australian Feminist Studies, 29:81, 255-272,
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Many conflicts have seen a systematic use of sexual violence as a tool of war and intimidation, but these crimes were largely disregarded and unprosecuted under international criminal and humanitarian law until the 1990s. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, forced marriage, and forced nudity are all forms of sexual violence that have been used systematically on a mass scale during conflicts and have been historically ignored by the international community. This paper will examine the evolution of the recognition of sexual violence as a crime against humanity or a war crime and why the international community failed to prosecute war criminals for committing or facilitating crimes of sexual violence until the 1990s. This paper will primarily examine cases of massive sexual violence during World War Two, the international jurisprudence for sexual violence, as well as the way the cases of the Yugoslavia Tribunals, the Rwanda Tribunals, the Special Court for Sierra Leone, and the creation of the International Criminal Court have shaped the way sexual violence has been recognized and addressed by the international community. Historically, the international community has had international humanitarian law, criminal law, and human rights law, including the Genocide Convention, the Geneva Conventions, and the Rome Statute, and sometimes domestic law to deal with cases of sexual violence. However, most of these failed to include crimes of sexual violence beyond rape and until the ad hoc tribunals in the 1990s there were almost no prosecutions for sexual violence. The courts established in the 1990s have however reformed the tools the international community has to access justice for victims of sexual violence.
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The extent and nature of sexual violence throughout the war vary. Sexual violence is pervasive in some conflicts, such as ethnic conflicts, but it is relatively rare in other conflicts. Sexual slavery is one form of sexual violence in inevitable conflicts, while detention torture is another. The ICTY has carried out in-depth prosecutions and investigations of cases of sexual violence committed during times of war, leading to the filing of several indictments for crimes perpetrated in Bosnia - Herzegovina as early as 1995. By enabling the litigation of sexual violence as a war crime, crime against humanity, and genocide, the ICTY has advanced international criminal equity in sex crimes. This article attempts to provide readers with a clear understanding of two types of obligations: personal criminal culpability and state responsibility. The responsible for sexual violence presents a significant challenge to international law and misinterprets other laws, according to the conclusion. .
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Historically, the term rape is derived from ?raptus? which implies violent theft, applied to both property and person. Thereby, a woman?s abduction or sexual molestation, merely used to be the theft of a woman against the consent of her guardian or those with legal power over her. The injury was, therefore, against her father or husband, women being wholly owned subsidiaries. Marriages in India are considered as a sacrament. Matrimony binds the wife to her husband in such a way that she is duty-bound to submit to his wishes. Marital rape refers to intercourse that a husband has with his wife against her will. In India, this concept is rejected by the law, because it is believed that a woman who has married a man has impliedly consented to having sexual relations with him. Unless a woman is below the age of 15, she cannot be ?raped? by her husband. As a consequence, it is not a crime to force your wife into sexual intimacy. Statistics indicate that marital rape and related offences (.
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Beyond rape, there are other crimes of sexual violence committed during armed conflicts, mass violence and genocide, including sexual slavery, enforced prostitution and forced marriage. This article explores the development in international criminal justice of these three crimes, comparing differences between the crimes, assessing any definitional overlap, and addressing challenges across jurisdictions. While there has been some development of jurisprudence in international criminal courts and tribunals, despite the extensive commission of these crimes in mass atrocities, there remains a lack of willingness by and to some extent inability of international courts and tribunals to address gender-based sexual offences. This article will conclude by confronting reasons behind this reluctance to ensure justice for female victims of sexual violence.
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Nnamdi Azikiwe University Journal of International Law and Jurisprudence
Sexual relations and activities abound between people all over the world and most times many of these activities are not illegal. However, the absence of consent of one of the participant may turn the table around making such act illegal and a crime that attracts heavy penalty. Law is dynamic; our laws keep changing as society changes. However, one area of our law that has refused to catch up with the societal change and need is our law on rape. Rape is usually referred to as the gravest and most serious form of sexual assault and is indeed one of the crimes involving emotional issues as the dignity of the raped victim is usually at stake. Rape depicts an instance where a man has forceful sexual intercourse with a woman without her consent or with her consent if such is gotten by force, threat, fraud, deceit, impersonation or intimidation. Spousal rape though not defined as a crime in Nigeria is highly debatable with different views held by different people. This paper discusses spo.
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Since the first reports on gender-based crimes committed during the Yugoslav dissolution war of 1992-1995 and the Rwandan genocidal war between April and July 1994, feminist legal scholars have produced hundreds of scholarly and journalistic works on rape and other forms of sexual violence committed either in peacetime or in conflict situations. New to this body of scholarly literature addressing the legal treatment of rape in the statutory laws of international criminal tribunals, in international and regional human rights treaties, and in a wide range of different domestic penal laws, is this thought-provoking work, edited by Clare McGlynn, professor of law at Durham University, and Vanessa E. Munro, professor of socio-legal studies at the University of Nottingham. The work under review started life as a collection of papers submitted to an international conference marking the 10th anniversary of the landmark judgement of the International Criminal Tribunal for Rwanda (ICTR) in the case of Jean-Paul Akayesu, where he was convicted, inter alia, for rape as an act of genocide. This milestone judgement constituted a triumph for feminist legal scholars and activists. It was also a turning point for the international justice system, in general, and for the jurisprudence of the international criminal tribunals, in particular. The editors maintain in their introduction that the aim of this work is to provide the reader with a cross-cultural perspective and a critical evaluation of the latest developments in rape laws embodied in the statutory laws of international, regional, and domestic judicial bodies. Comprised of 22 concise chapters, the work is arranged thematically under four corresponding principal ideas: the theoretical complexities of responding to the wrongs of rape; the relationship between feminist activism and legal reform; the limits of law reform in bringing about social change; and finally, the secondary victimization of rape complainants during the criminal investigation and trial process. Moreover, the editors provide in their introduction a meticulous analysis of these themes and underline the need for a progressive reform of rape law, including reconceptualizing and criminalizing rape in international and domestic laws. Examining feminists’ debates and struggles at the national, regional, and international levels to protect victims and ensure their right to sexual and bodily integrity, they elucidate feminists’ responses to the wrongs of rape, their struggle for legal reform within international and national legal systems, and the challenges that prevent law reform from bringing about real changes. Overall, this book constitutes essential reading in view of its examination of the provisions of domestic and international criminal laws and for its exploration of the similarities and variances between rape in time of peace and in wartime settings. Moreover, by analysing and investigating different fundamental concepts in rape law, it brings together divergent perspectives of leading legal scholars from across the world on international criminal law, international human rights law, and domestic criminal justice systems, thereby moving the rape law reform agenda forward and ensuring appropriate justice for both victims and perpetrators. It is a remarkable, comprehensive work that should be read by legal scholars, jurists, actors in the criminal justice system, law students at all levels, and by those looking to deepen their understanding of the multiple tensions inherent in the shifting legal landscape of rape crime.
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