Normative and International Human Rights Law Imperatives for Criminalizing Intimate Partner Sexual Violence: The Marital Rape Impunity in Comparative and Historical Perspective

Abstract

In this third chapter of the book, The Right to Say No, Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi, (Hart, 2017) we provide a big-picture perspective on the long and bumpy road taken by many of the world’s countries in moving towards legal recognition that sexual assault can occur in a marital relationship and in the provision of a criminal law remedy for this form of gendered violence. We begin the chapter by articulating our arguments about why engaging the power of criminal remedies is necessary to the struggle to end sexual violence against women in marriage, particularly with reference to criminal law’s importance in expressing fundamental social norms. Section II moves to a critical review of the historical origins and ideological justifications underpinning the marital rape exemption in diverse societies. We show how similar themes occur across very different social regimes.

This is followed in section III by a global, comparative analysis of the marital rape exemption and the criminalisation of marital rape in various countries of the world. We provide an overview of the historical and uneven progress towards providing criminal legal remedies for women sexually assaulted by their husbands or intimate partners in different legal systems around the world. In this section we also analyse and critique the two most comprehensive and recent databases of marital rape legislation around the world, provided by the World Bank and the United Nations, respectively.

Section IV provides an overview of the major human rights instruments and sources of legal authority that require states to criminalise sexual assault in marriage, including the instruments aimed at securing women’s equal rights and ending gendered violence. Our central argument is that international human rights law and the due-diligence standard provide powerful normative bases on which women’s movements and other social justice supporters can organise to end impunity for sexual violence in intimate relationships.