India’s rape laws, which make an exception for cases where the perpetrator is the husband, has its origins in the common law. Section 375 of the Indian Penal Code, which defines rapes, makes an exception for marital rape by stating, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” On Monday, the central government had filed an affidavit in Delhi High Court, arguing that marital rape should not be criminalised, on the ground that it may “destabilise the institution of marriage”.
The grounds for “marital immunity” for rape prosecution were laid by Chief Justice Sir Matthew Hale in The History of the Pleas of the Crown, published in 1736, 60 years after his death. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” This ‘Implied Consent Theory of Sir Hale’ found its way into the legal system of all former British colonies that adopted the common law system.
Australia, under the impact of the second wave of feminism in the seventies, was the first common law country to pass reforms in 1976 that made rape in marriage a criminal offence. In the two decades before that, several Scandinavian countries and countries in the Communist bloc passed laws criminalising spousal rape including Sweden, Norway, Denmark, and the former Soviet Union and Czechoslovakia. Poland in 1932 was the first to have a law explicitly making it a criminal offence. Since the 1980s, many common law countries have legislatively abolished the marital rape immunity. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel.
In the US, between 1970s and 1993, all 50 states made marital rape a crime. The Court of Appeals of New York struck down the marital exemption from their codes in 1984. In 1986, the European Parliament’s Resolution on Violence against Women of 1986 called for criminalisation of spousal rape which was done soon after by several nations including France, Germany, the Netherlands, Belgium and Luxembourg. In 1991, the House of Lords in the UK struck down its common law principle that a marriage contract implied a woman’s consent to all sexual activity.
In 2002, Nepal got rid of the marital rape exception after its Supreme Court held that it went against the constitutional right of equal protection and the right to privacy. It said, “The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification.”
According to the UN Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offence. The remaining countries include those that make an exception for marital rape in their rape laws, as well as those where no such exception exists and where, therefore, the spouse can be prosecuted under the general rape laws.