The marital rape in compared law

1. In previous centuries, the legislation concerning the sexual crimes had the main right to protect the virginity of a woman, of legitimacy of the descendant as well as the patrimonial interests of the family.

With the evolution of society, obviously this way of looking at the problem has modified radicaly.

Our study proposes to present the recent evolution of the problem in compared law, following that, in the end, to analyse the situation of marital rape in the penal legislation, taking count of recent legislative modifications.

2. In England, first encounter of this sort of problem appeard in the XVIII century in the opera of Sir Matthew Hale in witch the husband could not be convicted of rape against the wife because of the consent granted through the nuptial contract. Modern critics criticized this idea. Thus, the marriage isn't a simple contract that enforces reciprocal obligations of the couple, as long as the state has a master role in the ending and the cessation of the marriage, as well as in the right settlement of the obligations that come with it. A long time, the opinion expresed by Hale has enjoied complet authority.

The process of erosion of the principle that he enunciated started with the case R. V. Clarence(1888), case in which more then 13 judges expresed their opinion. The final decision was to reject the idea of marital rape, but we must remember that, among other ideeas, it has been told that through violence is less rape if, in the case of married persons, this is impossible, ideea that we are not prepared to support and for which there are no precedents.

The situation started to modifie along with the appearance of the case R. V. Clarke in 1949, in which the husband has raped his wife after he obtained a justiciary decision of separation. The solution was to keep the crime of rape because, if through a juridical paper, for instance the marriage, his wife and he gave the consent for sexual relation, this can through another juridical paper, for instance obtain the paper for separaion, to revoke that consent. In short time it has been determined that the simple introduction of divorce papers isn't enaugh to counter the agreement gived in marriage. In 1976, through laws concerning the sexual crimes, the rape has been defined as an ilegitim sex act with a woman, without her consent; despite the speeches in the Parlament, nothing beeing said about the marital rape. In 1991, the Lords Room had again the occasion to pronounce, in the case R. V. R. From this date, the marital rape has been recognized as a criminal act, without eny other condition. Thus, in the present days, England punishes the marital rape after the rules of common law.

3. Also in 1991, the same stand was adopted by the law system from Australia through the decision of the supreme court. It was specified that the marital laws of the couple are mutual and come with corresponding mutual obligations, but not when it comes to constrained execution. As long as the union for life among a man and a woman can't be maintained through justiciary decisions, the marital obligations are to be executed voluntarily by each person. In this decisions, the Australian state removed the distinction between the marital rape and normal rape.

4. In the United States, the federal instances didn't had yet the chance to pronounce in a case of marital rape. For a period of time, most of the states adopted a so-called marital immunity as part of the rape definition. To the original arguments brought in favor of this ideea even more were added , hardly contested in the doctrine. Thus, beeing said that the family life must be protected from the state. Even more, the husband was protected from eny sort of complains from his wife during the divorce procedures. The arguments were not accepted by a part of the doctrine that specified the case in wich the husband abuses only one time of his wife, as an isolated case, in a mariage that has no other problems, it comes hard to believ that the wife would file eny complain. On the other hand, if this isn't a one time case of abuse, there can be no more interests in saving the mariage, and the protection of the victim is more important then invazion of mariage from the state. And we can't talk about the protection of the husband against some of the wifes complains that might come as a violance complain agains him which coincide with rape. The first decision regarding marital rape was made in 1984 by the state court of New York in which the marital imunity has been declared uncondioned. Because of this decision, the american court has removed all the arguments regarding the protection of the husband, specifing that the rape isn't just a sexual act without the consent of one person. Rather, it is a degradant and violent act which affects the physical integrity of the victim and brings psychological sufferings. Consideration of an existing consent to such acts is irrational and unheard of. A maried woman has the same rights of control over her body as the one unmarried. If a husband is refused the right of sexual act by the wife, he must use other means of persuasion then help himself.

The new yorkers decision is the main fact for the transition to total abrogation of marital immunity in american law. Recently, just two states (Alabama and Georgia) maintain a total immunity, while 12 states abolished the rule completely .

Most states kept a partial exception for the marital rape law, for special cases when the parts are legaly separateted or live separated in the moment of the rape.