The Criminalisation of Marital Rape and Law Reform in Canada: A Modest Feminist Success Story in Combatting Marital Rape Myths

Chapter 5, Randall, Koshan and Nyaundi, eds, The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (Hart Publishing, 2017), Forthcoming

24 Pages Posted: 18 Sep 2017

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Date Written: September 14, 2017

Abstract

Marital rape is both a product of and a contributing factor to women’s inequality in Canadian society and internationally. Before 1983 in Canada it was legally permissible for a man to rape his wife without criminal sanction. This chapter reviews the struggles surrounding the criminalisation of marital rape in Canada with a view to identifying the arguments, processes and ongoing challenges that may be relevant to other jurisdictions contemplating the shift to criminalising sexual assault in spousal relationships. Part II provides the factual context for the legal analysis, including the prevalence and harms of sexual violence in spousal relationships. Part III outlines the historic rationales for the marital rape immunity, and how these marital rape myths were disputed and dispelled in the law reform efforts that lead to the criminalisation of marital rape in Canada. Parts IV and V examine the legal frameworks applying to marital rape following criminalisation, illustrating the broader doctrinal changes which have been necessary for criminalisation to be implemented in a meaningful way. Despite these reforms, however, marital rape continues to be subject to problematic state (in)action in Canada. Part VI considers arguments and strategies that aim to hold the state to account for ensuring that the criminalisation of marital rape is fully implemented. Part VII concludes with lessons learned from Canada that may be relevant to criminalisation efforts in other jurisdictions.

Suggested Citation

Koshan, Jennifer, The Criminalisation of Marital Rape and Law Reform in Canada: A Modest Feminist Success Story in Combatting Marital Rape Myths (September 14, 2017). Chapter 5, Randall, Koshan and Nyaundi, eds, The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (Hart Publishing, 2017), Forthcoming. Available at SSRN: https://ssrn.com/abstract=3037117

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

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