Criminalization of sexual violence against women in intimate relationships must form a central part of the human rights agenda for achieving gender equality. According to a study by the United Nations Secretary-General, “[t]he most common form of violence experienced by women globally is intimate partner violence” including “a range of sexually, psychologically and physically coercive acts.” The World Health Organization reports that nearly one in four women in some countries may experience sexual violence perpetrated against them by an intimate partner. Other research suggests that approximately 40% of all assaulted women are forced into sex at one time or another by their male partners.

Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three. Rape within marriage, the authors argue, strips its victims of multiple human rights, and therefore any state’s refusal to criminalize it is a violation of international law. However, more than half the countries in the world, according to the authors, fail to explicitly criminalize rape or sexual assault within marriage (which I will sometimes call “marital rape” in this comment). In this comment I will first briefly elaborate on the authors’ thesis, emphasizing what it tells us about the meaning, respectively, of “marriage,” “rape,” and “law.” I will then register three objections, or qualifications, to their argument.

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.

There are cases that one never forgets. DPP v. Morgan is one of those for me. I read it as an eighteen-year-old in my first year of law school. It was in the criminal law class where we were being taught about rape. The facts left me shocked and outraged. Morgan went out drinking with his friends. At the end of the night, he invited the friends back to his house. He told them that they could have sex with his wife and added that they should not worry if she appeared to resist, because she liked it that way. The friends duly came over and helped themselves to his wife as per his instructions. Morgan also forced her to have sex with him despite her protestations. She experienced injuries which necessitated medical treatment. His friends were convicted of rape, but he was convicted of indecent assault. This seemed strange. Had they all not forced her to have sex with them despite her clearly expressed refusal? Why was he charged with a lesser crime? The reason was simple: he was her husband. Under the law as it then operated in England, there was no recognition of marital rape. Her consent to lifelong sex on demand, even if it was against her will, was taken as part of the contract of marriage. The words “I do” spoken at the time of the marriage, were taken to mean free access for the husband for as long as they both lived, or until the marriage was legally dissolved or a formal separation was in place.

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.

Nothing can be said in favor of intimate sexual violence, including marital rape, as Randall and Venkatesh, the authors of Intimate Sexual Violence, Human Rights Obligations and the State, make plain. As the New York Court of Appeals held in 1984:

There is something to be said, however, in favor of clearly setting out a legal position before condemning it, in favor of a conservative approach to the wholesale expansion of human rights, and in favor of enabling women, even women in states that do not criminalize marital rape, to set their own priorities. The authors draw on international law to make a passionate case against marital rape, and against domestic laws that fail to recognize it as a crime. Their argument would be more persuasive if their demand for what domestic law must criminalize were clearer, if their international legal analysis were more rigorous and more focused, and if they justified the top-down approach they recommend here, which seems particularly problematic in this context.

It is difficult to engage from a theoretical perspective an advocacy piece that largely reads like a brief in favor of particular claim of law, namely, that a state’s failure to (vigorously) criminalize marital rape violates international human rights law. In a brief, the litigant pulls together various sources to prove the legal claim is correct. Opponents typically respond by cobbling together their own sources to undermine that claim. In their essay, Criminalizing Sexual Violence Against Women in Intimate Relationships, Randall and Venkatesh set out to prove that international human rights law, in fact, requires states to criminalize marital rape. I suspect there are international lawyers who can persuasively argue that international human rights law does not, in fact, require such criminalization.

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.