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01-Jun-2017 05:33

Marital rape is often a chronic form of violence for the victim which takes place within abusive relations.It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways.Marital rape (or spousal rape) is the act of sexual intercourse with one's spouse without the spouse's consent.Although the lack of consent need not involve violence, it is still considered a form of domestic violence and sexual abuse.Rape has been, until recent decades, understood as a crime against honor and reputation - not only in domestic legislation, but also in international law; for example according to the Article 27 of the Fourth Geneva Convention, "Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault". This can be seen in English common law, in force in North America and the British Commonwealth, where the very concept of marital rape was treated as an impossibility.

Following this logic, if consent is not part of marriage, then it is not necessary for intercourse.Therefore, a man could not be prosecuted for raping his own wife because she was his possession (Schelong, 1994).However, if another man raped someone's wife, this was essentially stealing property (a women's sexuality) (Bergen, 2016).For this reason, in many cultures there was a conflation between the crimes of rape and adultery, since both were seen and understood as a violation of the rights of the husband.

Rape as a crime was constructed as a property crime against a father or husband not as a crime against the woman's right to self-determination.

This view was described by Sir Matthew Hale (1609-1676) in History of the Pleas of the Crown, published posthumously in 1736, where he wrote that "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract".



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