Mandy Boardman

When Mandy Boardman was married to David Wise, he would regularly drug her and inflict sex on her when she was unconscious, and he would videotape these crimes for three years. Since learning of the measures taken against her and after 12 years of marriage, she left her husband and then filed a lawsuit in 2011. After three years of court wrangling, and after her husband's conviction on six criminal charges, including marital rape, Judge Kurt Eisgruber sentenced Wise to house arrest for eight years and asked Mandy to forgive him and move on because despite being a terrible husband he had been a good father to his children. The case garnered wide media coverage after the sentence. Two months after the conviction, Wise violated his house arrest and was given a five year prison sentence. In speaking out, Mandy Boardman felt that she would help shed some light on the cloudiness surrounding marital rape as the laws that protect victims against rape have not been updated.

Definition of Marital Rape

In legal terms, marital rape is all sexual acts that a spouse or an ex-spouse performs that are unwanted which the spouse performs without the consent of the victim. The acts are instigated with the use of force, threatening to be forceful, intimidating the victim or when the victim lacks capability to consent (Randall and Venkatesh 15). In most places, people found guilty of marital rape go through severe punishment while in other areas there are laws that protect the accused or act as a hindrance from prosecuting the rapist. The basis for most of the unjust laws surrounding marital rape is the common ground that marital rape cannot be classified as sexual assault or rape. The premise is that once a woman has accepted a hand in marriage they have consented to sex. The notion is deceptive because there is a milliard of factors that affects a person’s decision to indulge in sex. Moreover, a person has no obligation to engage in sexual activities. Another issue surrounding marital rape is that if a woman was actually being forced into sex they would have left the marriage. Most of the women who go through marital rape are fully codependent on their husbands, or their husbands are much stronger than them and they experience some form of violence in the marriage. Further, these men threaten their spouses with physical violence or they apologize and promise that it will never happen again. Nonetheless, there are women who are not aware of the existence of marital rape. Marital rape is as serious as any other form of rape by an unknown stranger but the difference lies in the stigma.

Statistics of Marital Rape and Its Impact on the Society

Over the years, marital rape has received no particular attention from the society despite its prevalence. Essentially, very little research has been conducted on the subject. The world acknowledged the probability of the occurrence of marital rape after the second-wave feminist movement in the 1970s (Pracher 234). According to research, ten out of every fourteen women who are in marriage or divorced have had to go through sexual violence from their husbands or ex-husbands. Marital rape became an offence in all the fifty states in 1993 in the United States. However, thirty states offer exemptions to husbands who instigate marital rape. A woman has the right to go to the authorities and charge their husbands with marital rape in a civil court for the pain and medical costs incurred. Nevertheless, most cases of marital rape go unreported. Statistics indicate that only 16 percent of victims of marital rape will notify the law enforcement. It is common for women who do not have an extensive sexual experience to not think forced sex in marriage is an offence by law.

Furthermore, most people regard marital rape to be less harmful than stranger rape. Hence, rape within a marriage becomes less reprehensible in comparison with other forms of rape. Besides, in marital rape the victims report to have been raped over 20 times over the period of the relationship. In spite of that, any woman of any age, ethnicity, social class and geographical region could become a victim of spousal rape. Notwithstanding, nearly two thirds of the victims of spousal rape are aged 25 years and below. Nonetheless women with little or no education on consensual sex have a high likelihood of getting involved in marital rape. Regardless of the belief that spousal rape results from wives with holding sex from their husbands, most victims have indicated that they have consensual sexual intercourse. Husbands who practice marital rape are triggered by a need for reinforcement of power, and as an expression of anger or control. If there is domestic violence within the home, 70 percent of the time there will also be marital rape. Further, 18 percent of women have reported that children have witnessed a sexual assault against their mother which aggravates the seriousness of marital rape ("Marital Rape Statistics | Tario & Associates, P.S.). Most of the women who come out and speak about marital rape will be caught up in spousal rape again. The victims of marital rape have a 5.3 times likelihood to commit suicide than those who only experience abuse.

Value

The Reality of Marital Rape

Just recently, Michael Cohen who is the lawyer to the president of the United States, responding to accusations made in 1989 against Donald Trump for marital rape said that the law could not consider spousal rape as an offence. However, he had to apologize because in actuality, marital rape is illegal. Legal attitudes against marital rape in the United States began to change in 1979 when the courts were presented with two cases. In most states at the time, there were clauses that exempted spouses from rape conviction. The first case of marital rape where the accused was convicted in a court of law was when a bartender who came to the home he had shared with his estranged wife in Salem and raped her. The common law exempted husbands from facing persecution for raping their wives. The law was partially modified to convict perpetrators of marital rape.

The modifications have become possible due to political protest and legislative action as opposed to the much needed judicial statement with the results being the partial modifications of the law in different states. Over the years, women have had to go through oppression and criminalizing marital rape served as a milestone for the fight for women’s rights. Before the 1850s, women were not allowed to own property. After the 1950s, the law allowed women to keep their earnings. The emancipation of women began with women’s suffrage. The 19th century feminists who fought for the rights of women fought for more than the right for women to vote and own property but also for them to have a right in controlling sexual intercourse within the marriage.

Barely anything about the law changed except for matters concerning divorce. Hence, women who went through marital rape at the time kept silent. However, there were laws that protected prostitutes and concubines but exempted wives. Sir Matthew Hale who was a chief justice at the time had a great impact on the exemption through the History of the Pleas of the Crown which had been published in 1736. The Hale Theory was based on the covertures of marital and common law which was sensible in the legal framework. After the women’s suffrage won in the ninetieth century, the feminist’s vigor to fight against marital rape declined.

The History of Marital Rape

The debate on marital rape sparked again in the 1970s and was led by the second women’s movement. Nonetheless, the modifications that resulted have been partial and uneven to date. The most recent marital exemption presupposes the in intent of the wife and the husband. One of the arguments from the modern marital rape exemption is privacy in marriage. The common belief is that once the law intervenes in matters between husbands and wives, intimacy and privacy will be lost in the marriage and the marriage may fail. Further the marital exemption claims to advocate for reconciliation citing that a marriage under outside scrutiny would make reconciliation impossible (Logan, Walker and Cole 55). Further proponents of the exemption cite a vindictive wife argument where the woman may choose to file false charges against their husband on the basis of marital rape. The modern feminist seeks to protect a woman in marriage because the institution of marriage is a potentially antagonistic and a dangerous relation where it is crucial for women to be under protection from the law for the devious harms caused by unwanted sex in marriage.

The Reality of Marital Rape

In the 21srt century, various trends have contributed to changed attitudes towards marital rape. The first trend is the significant change in the belief that women’s rights are also human rights. Abuse in the home according to international human rights organizations is also considered an infringement of human rights. In Canada and the United States, victims can seek asylum which is an indicator of the seriousness to which some countries are addressing the issue. The HIV/AIDS pandemic has also been a trend in changing attitudes towards spousal rape. According to research a large number of wives are infected by the disease by their husbands especially in sub-Saharan Africa. These women cannot refuse their husband’s sex or request the use of a condom which is a greater risk for the wife and her children. Policies in public health are cognizant of the dire damage caused by marital rape (Sharma 99). Further, there have been changes in the way people view the institution of marriage. In previous years, marriage was for the purpose of reproduction but in recent years most people are in pursuit of a compassionate marriage that has its basis on intimacy.

The Legality of Marital Rape

Different parts of the world treat the legality of marital rape differently. In India for instance, there are exemptions where the perpetrator id the husband. Under Section 375 of the Indian Penal Code, a man can have sexual intercourse with his wife whether consensual or not if she is above fifteen years of age and the act cannot be described as rape. The implications of legalizing marital rape are that it makes sexual assault less serious (Yllö, and Torres 128). On the other hand, one of the first common law countries to criminalize marital rape was Australia which passed the reforms in 1976. The decision was impacted by the second wave of feminism. However, the first country to have a law explicitly criminalize spousal rape was Poland in 1932. Illegalizing rape will punish the perpetrators and protect women in the society.

Sexual Assault and Marital Rape

Sexual assault is any form of sexual misconduct that occurs without the consent of the victim. On the other hand, marital rape occurs when a husband or an ex-husband rapes their wife. Sexual assault does not have to be penetrative and comes in many different forms such as fondling and molestation. Marital rape involves, oral, vaginal and anal sex conducted by husband upon his wife without their consent. Most cultures have had a problem relating marital rape with sexual assault because of the sense of entitlement that comes with marriage. Further, being a form of sexual assault, it is the most underreported today.

The Courts and Marital Rape

Despite the fact that many countries have adopted laws that have made marital rape illegal. Many countries have failed to protect women in cases of marital rape and especially in developing countries. Rapist must face punishment based on conscience and justice. Nonetheless, most countries that fall subject to the common law still operate their courts on the belief that a man is incapable of raping their wife because they consented to marriage. The laws act as immunity for husbands who perpetrate marital rape. Rape is a violation of the woman’s rights and there is no mitigation in claiming that the rape occurred in her marriage bed. In contemporary times, the law has tried to make marriage an equal institution for both parties. However, countries under common law must change the laws that exempt marital law before changing the notion of wives as equal parties.

Proposal

In the Middle East there are laws that allow perpetrators of sexual assault to marry their victims. These are loopholes in the justice system that also allows rapists to escape the arm of the law. Countries like Jordan and Lebanon have taken the initiative to abolish such laws which can be traced back to the colonial period. In Jordan’s case the abolished law stated that if the rapist stayed married to the victim for a period of at least three years they could avoid prosecution. The marriage laws in the Middle East have a foundation on honor codes which seek to restore honor to the victim’s family. Nonetheless, these laws are falling apart one by one which brings hope to the fight against marital rape. One of the steps necessary in changing the perceptions of the law towards marital rape is changing the mind of the judiciary concerning these laws. It is important to discard notions that are patriarchal in nature and that give unfair judgment to women. Another step would be conducting an amendment of the laws that promote marital rape such as the Hindu Marriage Act of 1955. Further, new legislations should be adopted to protect victims of marital rape. It is important to make the world aware of the atrocities some women in marriage have to go through in the process of eliminating the crime. With the prevalence in social media, social media campaigns against rape could have a wider coverage. Further, with the current media, activists are at a better position to create more awareness on the animosity associated with spousal rape.

Works Cited

"Marital Rape Statistics | Tario & Associates, P.S.." Tario & Associates, P.S., 2017, http://www.tariolaw.com/shocking-marital-rape-statistics/.

Basu, Tanya. "Donald Trump Lawyer Sorry For Saying 'You Can't Rape Your Spouse'." Time, 2017, http://time.com/3974560/donald-trump-rape-ivana-michael-cohen/.

Elvy, Stacy-Ann. "A Postcolonial Theory of Spousal Rape: The Caribbean and Beyond." Mich. J. Gender & L. 22 (2015): 89.

Hawkins, William, and John Curwood. "A Treatise of the Pleas of the Crown." (1978): 60.

Logan, T. K., Robert Walker, and Jennifer Cole. "Silenced suffering: The need for a better understanding of partner sexual violence." Trauma, Violence, & Abuse 16.2 (2015): 111-135.

Pracher, Maria. "The marital rape exemption: A violation of a woman's right of privacy." Golden Gate UL Rev. 11 (1981): 717.

Randall, Melanie, and Vasanthi Venkatesh. "The Right to No: The Crime of Marital Rape, Women's Human Rights, and International Law." Brook. J. Int'l L. 41 (2015): 153.

Sharma, Indira. "Violence against women: Where are the solutions?." Indian journal of psychiatry 57.2 (2015): 131.

Yllö, Kersti, and M. Gabriela Torres, eds. Marital rape: Consent, marriage, and social change in global context. Oxford University Press, 2016.