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Why Sexual Assault in Intimate Relationships Must be Criminalized as Required by International Human Rights Law: A Response to the Symposium Comments
Published online by Cambridge University Press: 20 January 2017
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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.
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- Symposium on the International Legal Obligation to Criminalize Marital Rape
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- Copyright © American Society of International Law 2015
References
We thank Catherine Powell, Carlos Vazguez, Karen Knop, Harlan Cohen, Benedict Kingsbury, and AJIL Unbound for organizing this symposium on our essay on international law and the criminalization of marital rape. We further express our appreciation to all the contributors who have responded to our essay and have depened the conversation with their insights and expertise.
1 Hasday, Jill Elaine, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373, 1506 (2000)Google Scholar
2 Banda, Fareda, “If You Buy a Cup, Why Would You Not Use It?” Marital Rape: The Acceptable Face of Gender Based Violence: Comment on “Criminalizing Sexual Violence against Women in Intimate Relationships”, 109 AJIL Unbound 321 (2016)Google Scholar.
3 Randall, Melanie & Venkatesh, Vasanthi, Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations Under Human Rights Law, 109 AJIL Unbound 189, 190 (2015)Google Scholar.
4 Goldsheid, Julie, Considering the Role of the State: Comment on “Criminalizing Sexual Violence against Women in Intimate Relationships”, 109 AJIL Unbound 202 (2015)Google Scholar
5 Sack, Emily J., Is Domestic Violence a Crime: Intimate Partner Rape as Allegory, 24 St. John’s J. Legal Comment 535 (2010)Google Scholar; Klarfeld, Jessica, A Striking Disconnect: Marital Rape Law’s Failure to Keep up with Domestic Violence Law, 48 Am. Crim. L. Rev. 1819 (2011)Google Scholar.
6 West, Robin, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 Fla. L. Rev. 11 (1990)Google Scholar.
7 See International Centre for Prison Studies, see, Half of the world’s prison population of about nine million is held in the US, China or Russia, BBC News; The Prison Crisis, ACLU.
8 Crenshaw, Kimberle W., From Private Violence to Mass Incarceration: Thinking Intersectionally about Women, Race, and Social Control, 59 UCLA L. Rev. 1418 (2012)Google Scholar; Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (2006); Weissman, Deborah, Law, Social Movements, and the Political Economy of Domestic Violence, 20 Duke J. Gender L. & Pol’y 221 (2013-2012)Google Scholar.
9 Gottschalk, Marie, Hiding in Plain Sight: American Politics and the Carceral State, 11 Ann. Rev. Pol. Science 235 (2008)Google Scholar; Gottschalk, supra note 8, at 153–164.
10 Gottschalk, supra note 9, at 139 (describing the differences between the antirape and battered women movements in the United States).
11 West, Robin, Marital Rape, Consent, and Human Rights: Comment on “Criminalizing Sexual Violence Against Women in Intimate Relationships”, 109 AJIL Unbound 189, 197 (2015)Google Scholar.
12 West, supra note 6.
13 Gruber, Aya, Zero-Tolerance Comes to International Law: Comment on “Criminalizing Sexual Violence against Women in Intimate Relation ships”, 109 AJIL Unbound 337 (2016)CrossRefGoogle Scholar
14 To take one example, shortly after sexual assault laws were revised in California, Frank Martinez, who kidnapped and brutally raped his wife, was sentenced to 16 years in prison. He would have received only 4 years had the marital rape exception not been removed just prior to his prosecution. See Diana Russell, Rape in Marriage 362-366(1990).
15 Lise Gotell also makes this point, see Gotell, Lise, Reassessing the Place of Criminal Law Reform in the Struggle Against Sexual Violence, in Rape Justice 53 (Henry, Nicola et al. eds., 2015)CrossRefGoogle Scholar.
16 See Amnesty International, Hungary: Cries Unheard: The Failure to Protect Women from Rape and Sexual Violence in the Home (2007). R. v. MacFie, [2001] A.J. No. 152, 2001 ABCA 34 [Can.]; Kate Painter, Wife Rape in the United Kingdom 23 (1991).
17 See Vasundhara Sirnate, When Marriage is Less than Sacred, The Hindu (June 24, 2015).
18 Morrison, Andrew et al., Addressing Gender-Based Violence: A Critical Review of Interventions, 22 World Bank Observer 25–51 (2007)CrossRefGoogle Scholar.
19 Gotell, supra note 15.
20 Stark, Barbara, Does International Law Really Require the Criminalization of Marital Rape?, 109 AJIL Unbound 332 (2016)CrossRefGoogle Scholar.
21 A detailed exposition of our other disagreements with Stark’s article are beyond what space constraints allow.
22 Meera Dhungana v. His Majesty’s Government, Writ No. 55 of the year 2058 BS (2006) (Nepal).
23 People v. Jumawan, G.R. No. 187495, 722 SCRA 108 (Apr. 21, 2014) (Phil.).
24 For an example of the debate among Indian feminists, see Mandal, Saptarshi, The Impossibility of Marital Rape: Contestations around marriage, sex, violence and the law in contemporary India, 29 Austl. Fem. Stud. 255–272 (2014)Google Scholar.
25 See Engle, Karen, Anti-Impunity and the Turn to Criminal Law in Human Rights, 100 Cornell L. Rev. 1069, 1069 (2015)Google Scholar (describing the “turn to international criminal law” by human rights advocates.)
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