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Marital Rape: The Long Arch of Sexual Violence Against Women and Girls

Published online by Cambridge University Press:  20 January 2017

Michele Goodwin*
Affiliation:
University of California
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If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.

State v. Oliver, 70 N.C. 60, 62 (1874)

Prologue: The Context

Sadly, sexual violence against women and girls remains deeply entrenched and politicized around the globe. Perhaps no other allegation of crime exposes a woman’s credibility to such intense hostility and imposes the penalties of shame and stigma to a more severe degree than alleging rape. Factors irrelevant to sexual violence, including the victim’s choice of clothing, hairstyle, and time of the attack frequently serve as points of searching inquiry, and scrutiny. Such extraneous points of critique further compound an atmosphere of shaming and stigmatization associated with sexual violence, but are seen as crucial in bolstering an affirmative defense and inevitably building the case against rape victims.

Type
Symposium on the International Legal Obligation to Criminalize Marital Rape
Copyright
Copyright © American Society of International Law 2015

References

1 Ellen Barry, Man Convicted of Rape in Delhi Blames Victim, N.Y. Times (Mar. 3, 2015).

2 Shyamantha Asokan & Angus Macswan, Female Politician Suggests Indian Women Invited Rape, Reuters (Jan. 29, 2014).

3 Id.

4 Elshan M. Entezar, Afghanistan 101: Understanding Afghan Culture, 113 (2008).

5 Id.

6 Human Rights Watch, “We Have the Promises of the World” - Women’s Rights in Afghanistan 46-47 (2009); Tim Craig, An Afghan Girl’s Story of Abduction and Rape is Testing an Incoherent Justice System, Washington Post (March 10, 2016) (describing the horrific tale of a kidnapped and raped girl whose abuser forced her into marriage and was set free by law enforcement); Heather Saul, Afghan Woman Raped Impregnated and Jailed For Adultery by Force’ Marries Her Attacker, The Independent (April 8, 2015).

7 Human Rights Watch, “We Have the Promises of the World” - Women’s Rights in Afghanistan 46-47 (2009).

8 Heather Saul, Afghan Woman Raped Impregnated and Jailed For Adultery by Force’ Marries Her Attacker, The Independent (April 8, 2015).

9 Women For Afghan Women.

10 Manizha Naderi, A Law That Would Permit Afghan Men to Hurt and Rape Female Relatives, The Guardian (Feb. 6, 2014).

11 Joseph Goldstein, U.S. Soldiers to Ignore Sexual Abuse of Boys by Afghan Allies, Ny Times (Sep. 20, 2015).

12 Rafael Romo, 11 Year Old Rape Victim Denied Abortion Gives Birth in Paraguay, CNN (Aug. 14, 2015).

13 Polly Davis Doig, 10 Year Old Rape Victim Denied Abortion, USA TODAY (May 5, 2015).

14 Id.

15 Matt Pearce, No Prison Time for Indiana Man Convicted of Drugging, Raping Wife, L.A. Times (May 19, 2014).

16 Sir Matthew Hale, The History of the Pleas of the Crown 629 (1736).

17 See, e.g., Re Application of Kantrowitz, 24 Cal. App. 203 (1914); People v. Trumbley, 96 N.E. 573 (1911); State v. White, 44 Kan. 514 (1890).

18 Anonymous, 206 Ala. 295, 299 (1921) (finding that a husband’s abusive conduct, including demands for sex, refusing to allow his wife to work, and denying the wife means to pay for dental services did not justify her refusal to grant him sexual favors or withdrawal from the house).

19 Id. (citing 13 R. C. L. pp. 987, 988, § 6).

20 State v. Paolella, 210 Conn. 110 (1989) (referencing that under Conn. Gen. Stat. § 53a-70(a) and 53a-70a(a), a finding by a trier of fact that the alleged offender and the victim were married exonerates the alleged offender, regardless of the proof of forcible sexual intercourse).

21 Commonwealth v. Fogerty, 74 Mass. 489 (1857).

22 Id.

23 Id. (emphasis added).

24 People v. Henry, 142 Cal. App. 2d 114, 120-21 (1965).

25 Id.

26 Id. at 120-21 (finding, “in the present case, notwithstanding the evidence regarding the same surname, not having been married to defendant, not having been outside the county, and living at defendant’s home, a marriage between Vickie and someone other than the defendant might have existed. There was not sufficient proof of the nonmarriage of Vickie to establish the nonmarriage element of the corpus delicti, and there was not a proper foundation for receiving the alleged confession in evidence”).

27 Id. at 121.

28 State v. Paolella, 210 Conn. 110, 116 (1989) (quoting the trial court, which clarified, “[t]he basis of the ruling as I indicated is the opinion of the Court that the spousal exemption is valid and the evidence indicates clearly . . . that these parties were still legally married on that day, and it is for that reason I am granting the Judgment of Acquittal as to these two counts.”).

29 Id. at 123.

30 People v. Brown, 632 P.2d 1025 (1981).

31 Id.

32 Hasday, Jill Elaine, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)CrossRefGoogle Scholar.

33 See, e.g., Catharine A. Mackinnon, Toward A Feminist Theory of the State (1989); Catharine A. Mackinnon, Feminism Unmodified (1987).

34 West, Robin, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 Fla. L. Rev. 45, 64-65 (1990)Google Scholar.

35 Thompson v. Thompson, 218 U.S. 611, 618-19 (1910).

36 State v. Oliver, 70 N.C. 60, 62 (1874).

37 Id.

38 Abbott v. Abbott, 67 Me. 304 (1877).

39 Id. at 305.

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