Law Reform and the Family: The New South African Rape-in-Marriage Legislation

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One of the achievements of the feminist movement has been to draw attention to the violence women suffer both outside and inside the home. The ensuing debate has raised legal questions about the manner in which violence against women is policed, the definition of crimes, particularly rape, and appropriate penalties. A central issue has been the validity of the 'marital rape exemption', a legal rule found in many countries which exempts husbands from criminal prosecution for the rape of their wives. In response to arguments that the exemption is offensive to the dignity of women and provides husbands with unwarranted licence within the home, some legislatures have abolished it in recent years. In South Africa, however, draft legislation which proposed to amend rape laws so that they would protect all women, irrespective of marital status, failed to win parliamentary approval. Instead a provision was enacted which entrenched the marital rape exemption. In this paper we trace the history of the new South African rape-in-marriage provision and then, against the background of what we argue is the most coherent theory of the relationship of law, the state and the family, attempt to interpret its implications for law reform initiatives. We take the view that the law is not simply an embodiment of patriarchal values or a mask for male power; nor is it impervious to calls for change. And, on the basis of these contentions, we explore some of the ways in which women might use the process of law reform to achieve feminist goals.