The law is the law, even about marital rape

In India:

“The prosecutrix (the wife) and the accused (Vikash) being legally wedded husband and wife, and the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused”, the court ruled.

Perhaps the law should be changed, as we did back in the 80s. But the rule of law does mean that what the law says must be applied.

39 comments on “The law is the law, even about marital rape

  1. Well, this has always been a rum old do, this marriage and sex thing.

    I think the argument might go that if people in marriages have the right to refuse sex, they have little moral right to demand sexual exclusivity. I always think of it like this; suppose upon marriage one vowed to only eat food eaten by one’s wife, and not any food from any other source. That surely places an obligation on the wife to provide food. It is hardly fair to give her the right to not provide food, if she retains the food monopoly.

    If either spouse is breaking the marriage contract by eating out, isn’t it also a breach of it not to provide hot meals at home? Or something like that? If women are free to not supply sex, as feminists demand, is it fair to maintain a contract in which monogamy becomes a euphemism for enforced celibacy?

  2. I think that if you’re fed up because you’re not getting any then the answer is to try to talk about it and, if after talking about it you’re still not getting enough, then seek to renegotiate or ultimately exit the ‘contract’ – not force yourself on your spouse.

  3. UKL-

    The problem is, marriage contracts are deeply binding and, in general, do not have a “not getting any nookie” clause for exit. So the question ought to be, whether this is a fair contract form or not.

    See, I think the basic point here is that as usual the Feminist narrative isn’t about having a frank and honest discussion. The reason that “rape” was not considered somethign that the law accepted in marriage was because a marriage is a sexual contract, and as such one is effectively giving sexual consent by marrying somebody- which is why it is fair and balanced to have an exclusivity clause bound in. It’s “you do it with me, and not with anyone else”. The presumption being that both spouses within reason accomodate the other sexually. Once you take that presumed accomodation away, you get into some form of injustice, since the other person is now bound (for life, effectively) into either celibacy or a major “buy out” penalty for leaving a contract which they themself has not broken.

    It is worth noting by the way that we shouldn’t be too gendered about this; women also find themselves wasting away in sexless marriages. But it does seem to be much more of a problem for men, since under the rest of the suite of feminist laws, they are the ones much more often penalised by divorce.

  4. Interestingly, in orthodox Judaic law, there is that sufficient nookie clause. It’s a very strong assumption that either side (barring such issues as health etc) will put out sufficiently to keep the other happy.

  5. Ian B has a fair point, but the marriage contract is not about sex per se, but about the begetting of children within a legitimate framework.

    Let us not forget that up until the recent past their were severe legal and social sanctions on sex outside of marriage in the form of laws against adultery, fornication and prostitution, so the space within marriage was the only place where sex (for the purposes of procreation) was allowed.

    In addition, a marriage could be annulled for various reasons including failure to consummate, sterility in a man or barrenness in a woman.

    So in effect, by removing the legal strictures against sex outside of marriage and removing the ability to annul a marriage for failure to produce children (except where the marriage has not been consummated) then the whole marriage thing looks both lopsided and anachronistic.

    Throw in alimony / spousal support in many jurisdictions and you have a contract that only a fool would sign, hence the ongoing decline of marriage, even though it is the most stable environment to raise children, which is the whole point in the first place.

  6. bloke in France,

    If Indian law is so clear on the point, why did the case reach court?

    Possibly because the argument wasn’t limited to that, but note that sometimes there are reasonable demands for the law to be ‘clarified’, it was also about whether the marriage was legal – if it isn’t legal (she claimed it was coerced) then presumably forced sex would constitute rape within the meaning of the law (as opposed to how we or a dictionary defines it).

  7. JG-

    That’s the thing really. Marriage is an institution that was crafted in enormously different social conditions. If we look at the argument recently about gay marriage, the definition mostly offered was that it is a declaration of mutual affection, and gays should be able to do that too. Fair enough, but the problem is that marriage also has a now very confused set of legal obligations attached to it, which started off balanced to a set of historic social relations, and have since been altered piecemeal until they are unbalanced and make not much sense.

    If it is really defined by affection, then we should strip out the legal obligations and define them separately, for instance childcare provision.

    Sometimes traditions and institutions evolve with the times, sometimes they fall into disarray in the process. I think the latter has occurred with marriage.

  8. I can’t help thinking that things were an awful lot easier when people mostly married for life*, and then shagged around when they were unhappy sexually. I can’t remember who it was (John & MaryMills?) but there was some famous long married couple who was asked how they managed to sustain a marriage for 50+ years and said “we never discussed our infidelities.”

    Personally, I blame the whole ‘self-fulfillment’ / “you deserve to have everything” brigade for the prevalence of marriage breakdown.

    *of course there are situations which become so intolerable that divorce is the only alternative, but when 1 in 3 marriages end in divorce I can’t help thinking some people are using a pretty wide interpretation of ‘intolerable’.

  9. Apparently the two most commonly stated reasons for dissatisfaction with marriage are, “she changed” and “he didn’t change”.

  10. Apparently the two most commonly stated reasons for dissatisfaction with marriage are, “she changed” and “he didn’t change”.

    I’m sure there is a joke in there somewhere.

    The Office of National Statistics’ (ONS) most recent number crunch reveals that in 2011, the woman was the party granted (therefore initiating) the divorce in 66% of cases that year. It used to be an even higher share: 69% in 2001, and a whopping 72% at the start of the 1990s.

    So what are the factors driving that female choice to divorce? The popular misconception is that it’s all down to adulterous men and their wandering penises. But you’d be wrong. Those same ONS stats break down the reasons for divorce, since there are only five legal justifications for ending marriage under UK law: adultery, unreasonable behaviour, desertion, or separation (either with or without the consent of the spouse). Men and women are practically equal offenders in the infidelity stakes. In fact, slightly more men claim to have been cuckolded in court (15% of male-initiated divorces) than women (14%).

    Why do women initiate divorce more than men?

  11. The formal marriage contract was about the legitimacy of heirs, property rights and formal alliances between families. Western religious institutions recorded marriages because they were among the few institutions that (a) kept written records and (b) were interested in how people conducted themselves sexually.

    Ultimately, in many cultures – including England of yesteryear – women in marriage were not equal persons to their husbands. In many respects they lose their individual legal identity and personal sovereignty, becoming subordinate or inferior to or incorporated in the husband’s identity. Shagging another man’s wife was an offence against that man’s property rights – shagging an unmarried woman would be an offence against her father’s property rights. A husband in England in yesteryear or some jurisdictions today was even allowed to apply “moderate correction” to his wife or restrain her liberty. This is not a relationship of equals.

    Arguments about contract theory in terms of marriages ought to take into account the unequal power relationships between the people signing on the dotted line. Even if you think that irrevocable consent to sex including coerced or forced sex is a legitimate clause in such a contract (I don’t), surely you must think that person must truly freely consent to signing it for it to be legitimate.

  12. In addition, a marriage could be annulled for various reasons including … sterility in a man or barrenness in a woman.

    That’s not right. Fraudulent representation of fertility was grounds for annulment, but infertility in itself was not.

    Ian B’s contractual argument for marital rape doesn’t work. If a wife is in breach of an implicit promise to have sex with her husband on demand, then that should free him from the corresponding implicit promise not to have sex with anyone else. It should not give him the right to assault her.

  13. UKL-

    The origin of marriage is lost in the mists of time, far before recorded history. Later religions and ethical systems incorporate a pre-existing institution, in a somewhat similar way to how humankind’s basic urge (and necessity) to live in social groups caused the tribe, society and ultimately nation state.

    The pair-bond, later institutionalised as marriage, reflected basic sex differences; females are weak, males are strong. Females thus received protective and provisioning services for themselves and offspring from the pair bond. Prior to the pair bond, they received these services from (male, obviously) fathers and brothers in the family. To a greater degree in some societies than others (dependent on environmental and production conditions) the family bonds remained after marriage, leading to strong clan systems.

    Humans lived for most of history in societies moderated by personal threat and violence. There were no police forces, no law courts, no formal systems. Violence was suppressed by the threat of retribution between bonded groups, the “feud system”. You kill me, my family will revenge it on your family. Whch means in practical terms that the males will fight the males. Ancient law systems strongly reflect this, formalising what degree of retribution feuding groups may exact from one another, gradually transferring this to a responsibility to primitive court systems.

    Seen from this perspective, it becomes apparent why in some respects (varying by society) females were restricted in their autonomy, because the males were the ones that would have to settle disputes which arose out of their actions.

    Nobody had any choice in this. Only recently with advanced States have we moved beyond it. So to talk of power relations in modern terms ignores that history. Women needed men to do their fighting for them; and at great risk to the men themselves. With the males taking risks with their lives, the males naturally could not accept female autonomy.

    So marriage is a very old system, and borne in a time when women could not have an independent identity, because they had not the means to enforce it without males as enforcers. Looked at that way, it becomes clear that if you are in the position of being responsible- possibly to the level of deadly violence- for somebody else’s behaviour, you would have no choice but to demand a veto over that behaviour. And that’s what we see when we look into the past.

    So to talk of “truly, freely consent” is to set the bar too high. Males and females were stuck with those roles. The women needed the men; and they could only get a man because men at least wanted them. The level of consent was much like our level of consent in the working economy; you have to have a job, you just try to get the best one you can. Back then; you have to have a husband (and, you have to have a wife or wives) so trying to choose the best of those available was the most consent you were going to get. There is no “absolute” freedom of choice in anything.

    So consider this; does a man in a marriage system truly consent? He might prefer to sleep with lots of women, but he cannot. He has to pick one and promise only to have sex with her (and if he doesn’t it’s back with males again; her father and brothers and cousins will beat him up, possibly kill him, etc). Who is truly, freely consenting? Neither.

    So, rambling on, the social conditions that formed that contract no longer exist. But while we have thus enabled autonomy for one party, we retain the responsibilities on the other. Males were bonded into marriages to ensure that female were not left unprotected- in some systems, men were required to marry their dead brothers’ widows (poor old Onan!) for that very reason.

    Well sorry, too much ramble, not sure I’ve made my point. Maybe it’s just this; whatever the past situation, women today one can reasonably say are at least as consenting as men in marrying. It is optional, there is no social enforcement of it and no social necessity for it beyond the satisfaction of personal emotions. If persons thus choose to truly, freely (as much as can possibly be truly, freely) enter into exclusive sexual contracts, there should be some recognition of obligation to provide, as there is an obligation to not commit adultery.

    That does not actually mean legalising marital rape. It does mean that the reluctant wife (or husband as I said, it cuts both ways) would be seen as the contractual defaulter in a divorce proceedings. Which might at least reduce the amount of psychological pressure that causes, every now and again, a frustrated angry male to snap and end up as another “abuser”.

  14. PaulB-

    As I just said above in that (on reading it back) woefully unfocussed comment above, it wouldn’t legitimise force. But it would be an option to dissolve the contract.

    Nobody is allowed to use violence to enforce contracts, and that would apply. Currently though, we have simply got a position of feminists insisting that there should be no sexual obligation, and no further discussion beyond that.

  15. You can get a divorce on grounds of unreasonable behaviour. Refusing all sexual relations would qualify. So what’s the problem?

  16. Trying to convince a judge steeped in feminist definitions of “reasonable” that not getting any nookie is “unreasonable behaviour”, I would imagine.

    The practical problem is that due to the holdover of ancient assumptions regarding male provisioning, plus modern preferences regarding child custody, many men are utterly hung out to dry by any court in divorces. This is why we need a complete and honest rethink of the whole thing.

  17. Trying to convince a judge steeped in feminist definitions of “reasonable” that not getting any nookie is “unreasonable behaviour”, I would imagine.

    But how accurate is your imagination to reality? Because AIUI UK judges are quite relaxed about what constitutes “unreasonable behaviour”.

  18. Lets be honest here, the only reason men get married in Western societies is:

    1. The promise of sex on tap
    2. The promise of sex on tap
    …etc…
    ∞-1. Meeting societal norms of “grown up” behaviour

    I can’t think of any other circumstance where a supplier can cut off deliveries for years or even decades before suing the purchaser for 50% of the company, ownership of plant and equipment and a significant amount of money each month regardless of actual earnings.

    No one would agree to such terms in a business, so why do they do it in a marriage?

    Dead simple, because the marriage doesn’t state these terms explicitly. If men had to start divvying up their income and assets on the wedding day as per a divorce settlement then marriage would be over. Dead. Kaput.

  19. But how accurate is your imagination to reality? Because AIUI UK judges are quite relaxed about what constitutes “unreasonable behaviour”.

    What difference does it matter if even divorced on the grounds of adultery because the wife is selling her gash down Piccadilly Circus for a tenner a time, the woman is still entitled to half the marital assets plus (potentially) spousal support, potentially for the rest of her life?

    How does that in any way reflect “fault” or reciprocity if the husband is effectively penalised for his wife’s breach of contract.

    The same is true of the husband files for divorce because the wife won’t put out as “unreasonable behaviour”. Again the husband is penalised for his wife’s failure.

  20. The woman isn’t necessarily entitled to half the assets, there isn’t a 50/50 split in the law.

    No, there is just a 50/50 split in practice, which is arguably worse. Especially when spousal and child support is on top of this to allow her to continue to live “as she has become accustomed”, regardless of actual earnings.

    Comedian Dave Foley fears arrest, owes $500,000 in child-support

    Deadbeat dad flees to Philippines leaving four kids without support

  21. JG-

    I don’t think it’s so much “on tap” as “just fairly regularly would be nice”.

  22. John, I should have been clear I was talking about the UK (or individual jurisdictions in the UK) not anywhere else.

    As for the cases of celebrities and/or rich people, I don’t know how representative they are of the rest of the divorced/divorcing population or how accurate are media stories about them. And I don’t think your links mention 50/50 splits?

  23. As for the cases of celebrities and/or rich people, I don’t know how representative they are of the rest of the divorced/divorcing population

    as I understand it, a not-insignificant number of celebrity marriages are of convenience anyway,* so this doesn’t really count.

    *one needs to reinvigorate career, the other to spark it off, or – and these are only rumours, but they are common ones – one partner needs (in the US at least) to hide their sexuality and the other agrees because of the publicity bump.

  24. Once again, I walk away shaking my head at how shite some people’s marriages must be.

    @IanB – you can start a divorce action on the basis
    of your wife’s unreasonable behaviour, and this could include her failing to take care of her appearance, never mind not blowing you.

  25. Yes, that’s the point really. Some peoples’ marriages are shite, but the contractual nature- and rather arbitrary subjective judgements regarding what is legitimate shite, what is unreasonable expectations, and what is just the way things are- can make them very dififcult contracts to walk away from, even though the relationship might have evolved into a nature utterly different from what it was when the contract was signed.

  26. @IanB ‘very difficult contracts to walk away from’

    I’ve just pointed out that you can divorce your wife on the basis that she has let herself go a bit.

  27. My dear Dad, bless his soul, passed away a few years ago. He was a child of the 1920s and grew up in the great depression. In a family discussion he let slip, there are so many take-aways for food around these days, why does any man get married?

    Sex is only part of the reason for getting marriage, it used to revolve around getting a wench to cook and wash for you as well, a bonus, if she liked bonking.

  28. ukliberty – “The formal marriage contract was about the legitimacy of heirs, property rights and formal alliances between families. Western religious institutions recorded marriages because they were among the few institutions that (a) kept written records and (b) were interested in how people conducted themselves sexually.”

    No it wasn’t. This is just the cliche’ed thinking of the idiots on the Left. Marriage was always about sin – as you point out in part (b), the Churches had a strong interest in matters sexual and hence a massive input into marriage laws. Which is why Western law has always seen things like heirs, property and alliances as secondary to marriage. A good case in point being Henry VIII. Just because his wife failed to provide an heir, was he entitled to an annulment? No he was not.

    “Shagging another man’s wife was an offence against that man’s property rights – shagging an unmarried woman would be an offence against her father’s property rights.”

    Not in the Christian tradition it was not. Saint Augustine has a long and interesting discussion about rape and guess what? He does not mention property rights once. If you are going to be contemptuous of a tradition, you ought to make a bare minimum effort to understand it first.

    “A husband in England in yesteryear or some jurisdictions today was even allowed to apply “moderate correction” to his wife or restrain her liberty. This is not a relationship of equals.”

    Why should marriage be a relationship between equals? Since when have men and women been equals? It is a legal fiction foisted on us by Christianity – you like that part of the tradition. When Christianity dies, so will this quaint notion.

    “Arguments about contract theory in terms of marriages ought to take into account the unequal power relationships between the people signing on the dotted line.”

    No it shouldn’t. Contracts are signed between unequal parties all the time. This is just an excuse for White Knights to get their jollies by coming to the rescue of people who actually don’t need it and were perfectly capable of understanding what they signed up to when they signed up to it.

    “Even if you think that irrevocable consent to sex including coerced or forced sex is a legitimate clause in such a contract (I don’t), surely you must think that person must truly freely consent to signing it for it to be legitimate.”

    No one in their right mind thinks women are not “truly” free to sign up when they sign up. That is why they have dozens of magazines devoted to marriage and men have none. The issue of marriage is not whether it gives the right to coerce sex, but whether is give the presumption of consent to sex. Which it used to.

  29. No it wasn’t. This is just the cliche’ed thinking of the idiots on the Left. Marriage was always about sin – as you point out in part (b), the Churches had a strong interest in matters sexual and hence a massive input into marriage laws.

    This is just the clichéd thinking of Christians, who seem to think that the Christian Church invented marriage, despite it being a universal human institution which was fully existent in the lands that became Christendom before they were. Lithunia didn’t christianise until 1380. Do you think they were all single before then?

    The Church actually took centuries of struggle to take power over marriage. it was an entirely civil contract before that, and even after Christianisation, people married outside the church, and only went inside to get it (additionally) “blessed” by God. It was many centuries before they convinced people to think they needed a vicar to do the marriage itself. Talk about mission creep.

    Christianity made it about sin, because they make everything they can get their hands on about sin. But that has nothing to do with the core institution which, as I said, is a human universal- due to the evolved complementary nature of the sexes.

  30. Ian B – “This is just the clichéd thinking of Christians, who seem to think that the Christian Church invented marriage, despite it being a universal human institution which was fully existent in the lands that became Christendom before they were. Lithunia didn’t christianise until 1380. Do you think they were all single before then?”

    OK. I will rephrase – the Western post-Christian tradition is about something other than property. That is why a Church man can actively aid and abet Romeo and Juliet – a valid marriage you will note.

    “it was an entirely civil contract before that, and even after Christianisation, people married outside the church, and only went inside to get it (additionally) “blessed” by God.”

    So it is often claimed. It is not what Christians, even very early Christians were saying:

    Bishop Ignatius of Antioch, writing around 110 to Bishop Polycarp of Smyrna, reflected the writing of Paul the Apostle when he exhorted, “[I]t becomes both men and women who marry, to form their union with the approval of the bishop, that their marriage may be according to God, and not after their own lust.”

    As is fairly obvious – all the early Churches share a very similar view on marriage. The Oriental and Orthodox Churches alike. It is likely that the idea of marriage in a Church pre-dates the split. Which would be 5th century for the Eastern Churches.

    “Christianity made it about sin, because they make everything they can get their hands on about sin.”

    Well that is not true. Augustine did not make rape about sin.

    “But that has nothing to do with the core institution which, as I said, is a human universal- due to the evolved complementary nature of the sexes.”

    Universal? Virtually everything we think about marriage is due to a Christian heritage. I doubt it can survive the death of that religion and we will have a social order more like Africa.

  31. SMFS, do you seriously believe that Hindus, Buddhists, Shintoists and all the animist primitive tribes waited for Christianity to invent marriage? As I keep saying, it is a universal, pre-civilisation institution.

    Christianity was not a major religion until the 4th century in Rome. Romans got married. Britons got married before Christianity arrived, and it is the British tradition I was discussing particularly. Anywhere “christian marriage” came into being was the Church taking over the pre-existing instituion, often with quite struggle as on our own island. As late as Chaucer, the Wife Of Bath talks of marriage “at the church door”. That’s outside the church, because the marriage was a civil, secular contract which was then “blessed” by God in another ceremony inside the church.

    Marriage is a basic human institutions. Religions bolt their gods onto it, but it is not predicated on the existence of God or gods. And I think this is one of my main points I’m always trying to make; there is a mythology that Christianity is a basis of western civilisation. It isn’t. It’s a bolted on, foreign import.

  32. Ian B – “do you seriously believe that Hindus, Buddhists, Shintoists and all the animist primitive tribes waited for Christianity to invent marriage? As I keep saying, it is a universal, pre-civilisation institution.”

    No. I agree – I misspoke. I am sure that marriage in said countries is about property etc etc. It is just that what we think of as marriage has been shaped by the Christian tradition which is not concerned with such things. Actively opposed to them even.

    “Anywhere “christian marriage” came into being was the Church taking over the pre-existing instituion, often with quite struggle as on our own island.”

    Taking over and changing fundamentally. Boko Haram has kidnapped a bunch of girls and will, no doubt, marry them. Entirely reasonably within their own religious tradition. In fact I doubt many cultures would find a great deal to object to in what they are about to do. But it is alien to the post-Christian Western tradition. Not to the Roman tradition of course. Nor to the Greeks. But to the Christians, yes.

    “As late as Chaucer, the Wife Of Bath talks of marriage “at the church door”. That’s outside the church, because the marriage was a civil, secular contract which was then “blessed” by God in another ceremony inside the church.”

    I think you are over-reading what was going on there.

    “there is a mythology that Christianity is a basis of western civilisation. It isn’t. It’s a bolted on, foreign import.”

    It is a foreign import but it has been thoroughly assimilated. Adopted a lot of Greek philosophy. Now Western. And it does provide the basis of marriage as we understand it. A marriage between two teens who run away together is a valid marriage because Christianity objects to parental control over children in matters marital. We don’t marry children because Christianity insists that informed consent is necessary. No one else does. The whole idea of a marriage being between equals is fundamentally Western and it comes from Christianity. It is unlikely to survive it.

  33. I think you are over-reading what was going on there.

    No, this is just standard history. People married outside the church, then went in to be blessed, thus before it was “all inside” there was the custom of holding the civil marriage service literally just outside, “at the door”. Then you went inside and the vicar said God approved also.

  34. The whole idea of a marriage being between equals is fundamentally Western and it comes from Christianity.

    Strange. You have an Eastern religion whose original form and other spin-off don’t have these ideas, but then you attribute them to the Eastern Religion. Is it not more likely that these ideas were assimilated in Christianity due to pre-existing Western social ideas?

    Christianity without Western Europe would look like Judaism or Islam; a pettiflogging rulebook moderated by a bearded clerisy, covering every aspect of daily life and thoroughly Oriental in character. There is no evidence that it brought Western people these Western ideas; Christianity adapted to them.

  35. Any way – and whatever you say – the current lot of occupants of this counry are not reproducing enough. And that is why reliable procreators are being brought in.
    The EU want real estate and productive stock.The rest is just chat.

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