Marital Rape, Consent, and Human Rights: Comment on “Criminalizing Sexual Violence Against Women in Intimate Relationships”

Robin West

doi:10.1017/s2398772300001434

Abstract

Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three. Rape within marriage, the authors argue, strips its victims of multiple human rights, and therefore any state’s refusal to criminalize it is a violation of international law. However, more than half the countries in the world, according to the authors, fail to explicitly criminalize rape or sexual assault within marriage (which I will sometimes call “marital rape” in this comment). In this comment I will first briefly elaborate on the authors’ thesis, emphasizing what it tells us about the meaning, respectively, of “marriage,” “rape,” and “law.” I will then register three objections, or qualifications, to their argument.

Highlights

Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three.[1]
What does the continued existence of “marital rape exemptions” in so many of the world’s criminal codes signify regarding marriage, rape, and law respectively? On marriage, it means just this: in those countries that fail to criminalize marital rape or meaningfully enforce the prohibition, to be “married” essentially means that a wife is by virtue of her status available to her husband for forced sex whenever and imposed, regardless of the presence or absence of either her consent to, or desire for, either the sex itself
The authors don’t dwell on the point, the wife is by virtue of this status available to her husband for the pregnancy that is its highly possible outcome where birth control is unavailable or not used, and, the birthing, the maternity and the mothering that is the result of that pregnancy, where the same is true of abortion services

Summary

Introduction

Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three.[1]. What does the continued existence of “marital rape exemptions” in so many of the world’s criminal codes signify regarding marriage, rape, and law respectively?

Results

Conclusion