Rape is believed to be a crime under the law, while justice and conscience both agree it is punishable. Once a woman is married, it is commonly accepted that she consents to any sexual acts performed to her by her husband. This is the premise of the irrevocable consent theory that contributes to the prevalence of marital rape in society. Although rape violates the dignity, freedom, and self-determination of a woman at common law, a husband could be immune to such an accusation and the consequence of rape because modern statutes still provide a rationale to the impossibility of marital rape.
Marital Rape Theory
Marital rape was a term and act that was not seriously considered in the US. Chief Justice Matthew Hale introduced the irrevocable consent theory in the mid-17 th century, thus establishing the impossibility of marital rape (Ross, 2015). The theory postulates that a wife, through marriage, gives the husband the absolute right to any sexual acts or relations. This law provided a basis for the exemption of marital rape. By July 5, 1993, marital rape was a crime across all American states (Bergen & Barnhill, 2006). However, there still exists a rationale behind most statues that permits married men to be exempted from charges against marital rape.
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Supporters of the exception agree that marital rape is not common enough to merit rescinding the exception, although 10-14 percent of married women experience spousal rape (Bergen & Barnhill, 2006). Others explain that it is too hard to prove a wife's lack of consent on the matter since she has had consensual sex numerous times with her spouse. In the case of Donna and Rayhons, the perpetrator was found not guilty, yet his spouse Donna had dementia and did not have the mental ability to consent due to mental defects (Ross, 2015). This gives a good example of how a vulnerable wife could be raped by the husband without giving her consent. Most proponents of the exemption believe marital rape to be a form of domestic violence (Ross, 2015). As such, some existing laws like battery and assault provide wives options to file for less fraught issues against the husband.
Conclusion
Marital rape is a prevalent form of rape that a substantial number of people refuse to consider. Although this form of rape is considered to be a crime, there still exist proponents of the irrevocable consent theory, which provides the rationale for existing statutes to support the exemption of cases of marital rape. These erroneous rationales thus allow perpetrators of marital rape to be vindicated of the grievous crimes they commit. There is a need to create laws that do not provide ambiguity, thus allowing for legal guidance when preceding over marital rape cases.
References
Bergen, R. K., & Barnhill, E. (2006). Marital rape: New research and directions. National Resource Center on Domestic Violence, Pennsylvania Coalition Against Domestic Violence. https://vawnet.org/material/marital-rape-new-research-and-directions#:~:text=Approximately%2010%2D14%25%20of%20married,unwanted%20sex'%20with%20their%20partner.
Ross, J. M. (2015). Making marital rape visible: A history of American legal and social movements criminalizing rape in marriage . https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1085&context=historydiss
