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Published online by Cambridge University Press: 20 January 2017
International human rights frameworks offer powerful support for a range of reforms to address marital rape. Melanie Randall and Vasanthi Venkatesh’s valuable commentary, Criminalizing Sexual Violence against Women in Intimate Relationships, correctly shines a spotlight on the extent to which marital rape is still accepted in too many countries around the world, and calls for its explicit criminalization under international human rights laws. The commentary serves as an important reminder of the challenges and enduring stereotypes that prevent marital rape from being recognized globally as a human rights violation. But the commentary’s focus on criminalization as the fundamental response is unduly limited. While criminalization, whether explicit or implicit, is a core part of states’ obligations under international human rights law, centering criminal justice risks both shortchanging other approaches and obscuring the problems with criminal justice interventions. Although Randall and Venkatesh acknowledge that criminalization is but one element of a broader strategy, this essay urges a broader view. International human rights laws’ due diligence framework requires a range of responses that include the obligation to prevent, protect, and provide redress, along with the obligation to prosecute and punish. Explicitly framing states’ obligations in terms of that more comprehensive approach would reach broadly to address the cultural and social barriers that allow marital rape to continue without sanction.
1 Randall, Melanie & Venkatesh, Vasanthi, Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations under Human Rights Law, 109 AJIL Unbound 189 (2015)CrossRefGoogle Scholar.
2 UN Declaration on the Elimination of Violence against Women art. 4, Ga Res. 48/104 (Dec. 20, 1993).
3 See, e.g., Convention on the Elimination of all Forms of Discrimination against Women, GA Res. 34/180 (Dec. 18, 1979); Commit tee on the Elimination of Discrimination Against Women, General Recommendation No. 12: Violence against Women, UN Doc. A/44/38 (1989).
4 Committee on the Elimination of Discrimination Against Women, General Recommendation 19, para. 11, UN Doc. A/47/38 (Jan. 29, 1992) [hereinafter Cedaw, General Recommendation 19].
5 Id. at para. 23.
6 Id. at para. 24.
7 See, e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 UNTS 85. Comm. Against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, para. 18, UN Doc. CAT/C/GC/2 (Jan. 24, 2008) (recognizing that states’ due diligence obligation to address torture “or other ill-treatment” has been applied to gender-based violence such as rape, domestic violence, female genital mutilation, and trafficking); Copelon, Rhonda, Gender Violence As Torture: The Contribution of Cat General Comment No. 2, 11 N.Y. City L. Rev. 229, 238 (2008)Google Scholar.
8 See Organization of American States, Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women art. 2, June 9 1994, 33 ILM 1534.; Council of Europe, Convention on Preventing and Combating Violence Against Women and Domestic Violence, art. 3, May 11, 2011, C.E.T.S. No. 210; see also African Commission on Human and Peoples’ Rights, Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa art. 4(2)(a) (July 11, 2003) (requiring all states to take “effective measures” to enact and enforce laws to prohibit all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public).
9 See, e.g., CEDAW, General Recommendation 19, supra note 4, at para.6 (“Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.”).
10 See, e.g., Anderson, Michelle J., Marital Rape Laws Globally: Rationales and Snapshots around the World, in Marital Rape: Consent, Marriage and Social Change in Global Context 262–265 (Yllo, Kersti & Torres, Gabriela, eds., forthcoming 2016)Google Scholar (discussing justifications for deeming all sexual intercourse between husband and wife as lawful).
11 See id. at 266-68 (describing additional criteria imposed in charges of marital sexual assault in the United States that pose barriers to successful prosecution).
12 See, e.g., M.C. v. Bulgaria, 2003-XII Eur. Ct. H.R. 1 (recognizing states’ obligation to punish all forms of rape and sexual assault in a case involving the sexual assault of a 14-year-old woman); Comm. on the Elimination of All Forms of Discrimination Against Women, S.V.P. v. Bulgaria, No. 31/2011, UN Doc. CEDAW/C/53/D/31/2011 (24 Nov., 2012) (recognizing gender violence as a form of discrimination against women in a case involving the sexual molestation of minor girl); Comm. on the Elimination of Discrimination Against Women, Vertido v. Philippines, No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (Sept. 22, 2010) (recognizing the role of stereotypes and customs and practices that constitute discrimination against women in finding the acquittal of the president of a chamber of commerce for the sexual assault of an employee to be a violation of CEDAW); C.K. v. Commissioner of Police, Petition 8 of 2012, Kenya Law Reports, Republic of Kenya, High Court at Meru (2013) (recognizing that “defilement” of young women violates funda mental rights and freedoms); see also, e.g., C.A.S. v. Romania, App. No. 26692/05 (2012) (repeated sexual assault of seven year old boy violated international obligations); González et al. (Cotton Field) v. Mexico, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 205 (Nov. 16, 2009) (sexual assaults and murder of young women constituted a form of discrimination).
13 For a fuller discussion of states’ due diligence obligations with respect to gender violence, see, e.g., Goldscheid, Julie & Liebowitz, Debra J., Due Diligence and Gender Violence: Parsing its Power and its Perils, 48 Cornell Int’l L.J. 301 (2015)Google Scholar.
14 See, e.g., Goldscheid, Julie, Domestic Violence as Sex Discrimination: Comparing American and International Approaches, 28 T. Jefferson L. Rev. 355, 389 (2006)Google Scholar (noting criminal justice-related reforms as the most common measures taken to meet international obligations under CEDAW, based on review of country reports submitted to Special Rapporteur on Violence Against Women).
15 See, e.g., National Domestic Violence Hotline, Who Will Help Me? Domestic Violence Survivors Speak Out About Law Enforce ment Responses (2015) (finding, inter alia, strong reluctance to turn to law enforcement for help among survivors who had called the police, as well as those that had not called the police).
16 See, e.g., Goldscheid & Liebowitz, supra note 13, at 213; see also, e.g., African American Policy Forum, Say Her Name: Resisting Police Brutality Against Black Women (2015).
17 For a collection of research, and a recent study of service providers in the United States, see, ACLU et al., Responses from the Field: Sexual Assault, Domestic Violence, and Policing (2015) [hereinafter Aclu, Responses From the Field].
18 Goldscheid & Liebowitz, supra note 13, at 315. Of course, prohibitions of marital rape would not aid Lgbt survivors in jurisdic tions that criminalize private, same-sex behavior, where both parties would be subject to sanction regardless of any questions about consent, autonomy or choice. This inherent limitation in the reach of efforts to eliminate marital rape confirm the value of broad-based advocacy that reaches both beyond criminalization and beyond marriage.
19 See, e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012); see generally, e.g., ACLU, Responses from the Field, supra note 17 (detailing reasons survivors in marginalized communities are reluctant to call police).
20 ACLU, Responses from the Field, supra note 17, at 7-9 (reviewing research), 40-42 (reporting survey results).
21 Id. at 30-31.
22 See, e.g., id. at 2, 43; see also, e.g., Goldfarb, Sally F., Reconceiving Civil Protection Orders for Domestic Violence: Can Law Help End the Abuse Without Ending the Relationship?, 29 Cardozo L. Rev. 1487 (2008)Google Scholar.
23 See, e.g., Claire M. Renzetti et al., Building the Knowledge Base: Research Funding through VAWA, Cuny L. Rev. Footnote Forum (2014).
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