The rape of wives by their husbands is endemic in societies which sexualise power. As we will see shortly, 19th-century philosophers and feminists set out powerful reasons why it was morally reprehensible. Their arguments emerged in contexts in which women were increasingly seen as persons in their own right and not merely in relation to their fathers or husbands. However, their words went unheeded legally until 1926, when Russia became the first country to criminalise marital rape under civil law. This was followed by Czechoslovakia in 1950 and Poland in 1969.
In the case of communist Russia and Czechoslovakia, the decision was based on the view that curtailing sexual freedoms undermined individual rights of self-determination and was opposed to socialist beliefs. In Poland, the exemption of husbands from rape legislation was included in the 1932 Criminal Code. In Chapter xxxii of the Code, rape was within the section on “offences against morality”. Since sexual relations were only acceptable between married persons, it could not be immoral.
During the 1969 reforms of the Code, rape was placed in the section on “offences against freedom”. Since wives possessed sexual freedoms in socialist countries, they could be raped by their husbands. The rest of the world was tardy in following their example. It is still not a crime for a husband to rape his wife in countries today. In half of those, the marital rape exemption is explicitly endorsed in law. Spousal rape did not begin to be abolished in American jurisdictions until 1976 (Nebraska) and it took until 1993 for North Carolina to be the last state to follow. The possibility of convicting a husband of marital rape was only introduced in Italy in 1976, France in 1984, Spain in 1989, England and Wales in 1992, and Germany in 1997. In Greece, marital rape only became an offence as late as 2006.
As in Australia, the legal possibility of prosecuting violent husbands does not necessarily translate into actual prosecutions. In Greece, only six to ten per cent of women subjected to domestic violence in 2013 complained to the police and conviction rates remain extremely low. Similarly, in South Africa, marital rape was criminalised in 1993 but the first successful prosecution did not happen until nineteen years later. Police everywhere remain reluctant to pursue “domestics” and they typically encourage wives to attempt reconciliation rather than prosecution. The lack of legal prohibitions, and their limitations where they exist, are significant since the rape of wives by their husbands is commonplace.
For example, in Turkey, the marital rape exemption was eradicated in 2006, at a time when 36 per cent of married women experienced marital rape “sometimes” and 16 per cent experienced it “often”. Article 5 of South Africa’s “Prevention of Family Violence Act” (1993) decreed that “a husband may be convicted of marital rape”. However, a 1999 survey of 1,394 male workers in Cape Town found that 15 per cent of men admitted having raped or attempted to rape a wife or girlfriend on one or more occasions in the previous ten years.
A similar study, this time of young men living in greater Johannesburg, showed that one in three believed that “forcing sex with someone you know is never sexual violence.” Clearly, legislating against marital rape alone will never change attitudes or practices. These statistics are even more worrying because of the huge barriers to reporting abuse. In many periods of history and in jurisdictions where marital rape is not a crime, statistics are simply not collected.
This led historian A James Hammerton to conclude that the high proportion of court cases in nineteenth-century Britain brought by wives against their husbands for “assault and battery” were actually instances of marital rape. He observed that many of these assaults took place in bed “with no explanation of precipitating arguments”. It is a reasonable assumption that many wives were using evidence of physical assault to punish sexually abusive husbands. Barriers to reporting one’s husband for rape are as strong today as in the past. Battered wives know that they will not achieve justice.
Penalties for raping one’s wife still remain significantly lower than for non-spousal rape. In societies where relatively little value is placed on romantic love (such as parts of South Asia), it can be extremely difficult for a woman to be taken seriously when she complains about a sexually aggressive husband.39 As we saw in the Australian case study at the start of this chapter, judges and jurors often express concern that women are lying about husband-assaults in order to leverage better divorce settlements. Might battered wives really be vengeful women? Crucially, husbands wield formidable power over their wives. This was what infuriated Joanne Fedler, legal adviser at Johannesburg’s People Opposing Woman Abuse (powa). She found that abusive husbands routinely intimidated their wives, telling them to “Say Goodbye to your children, because you’ll never see them again.”
Wives were also informed that “a court is not going to award custody to a lunatic like you”; “leave me and I swear I’ll leave my job. I’d rather starve than pay maintenance to you”; “Next time I’ll shoot you and then me – the law won’t convict a dead man”; “Call the police, see if I care – do you think a policeman doesn’t beat his wife?”
Immense financial as well as familial pressures are powerful disincentives to making any complaint. Certain groups of women face specific barriers to reporting, as Bipasha Ahmed, Paula Reavey and Anamika Majumdar argue in their research on the experiences of South Asian women living in the UK. While warning against homogenizing the experiences of “South Asian” women as well as adopting stereotypes of them as “compliant”, Ahmed, Reavey and Majumdar observed that, in these close-knit communities, wives were under huge moral pressure to stay in abusive marriages in order to sustain family honour (izzat) and avoid communal shaming.
For women who had migrated to Britain to marry, their precariousness was increased by dependency on their husbands’ “documents”. In Britain, this was particularly important because of the “one-year rule” in immigration law which means that a woman coming to the UK to join her spouse must live with him for at least one year before applying for residency. This could be devastating for women living with violent husbands. Crucially, Ahmed, Reavey and Majumdar draw attention to the particular difficulties South Asian women face due to the lack of a “gender community” within the family.
Unlike most white British women, South Asian women have different spatial issues to navigate, including the very public nature of “private” spaces (that is, inhabited by members of the extended family, including mothers-in-law). They found that “more often than not, it was older female family members such as mothers and mothers-in-law” who “were able to exert power which effectively colluded with the violence”. While discourses about ‘romantic love’ and “individual rights” can be employed by white, middle-class women to defend their decision to leave the marital home, these are denied to South Asian women, for whom deference to older members of the family (including older women) was paramount.
Excerpted with permission from Disgrace: Global Reflections on Sexual Violence, Joanna Bourke, Speaking Tiger Books.
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