Әйелдерге қарсы зорлық-зомбылық: Әйелдің келісімінсіз сексуалдық қатынас (құрметті әйелдерге қатысты)

Non consensual sex in which the perpetrator is the victim's spouse
rape within marriage

Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and doesn't always involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely classified as rape by many societies around the world, and increasingly criminalized. However it is repudiated by some more conservative cultures. The issues of sexual and domestic violence within marriage and the family unit, and more specifically, the issue of violence against women, have come to growing international attention from the second half of the 20th century. Still, in many countries, marital rape either remains outside the criminal law, or is illegal but widely tolerated. Laws are rarely enforced, due to factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge that sexual intercourse in marriage without consent is illegal. Marital rape is more widely experienced by women, though not exclusively. Marital rape is often a chronic form of violence for the victim which takes place within abusive relations. It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways. The reluctance to define non consensual sex between married couples as a crime and to prosecute has been attributed to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and to cultural expectations of subordination of a wife to her husband — views which continue to be common in many parts of the world. These views of marriage and sexuality started to be challenged in most Western countries from the 1960s and 70s especially by second wave feminism, leading to an acknowledgment of the woman's right to self determination of all matters relating to her body, and the withdrawal of the exemption or defence of marital rape. Most countries criminalized marital rape from the late 20th century onward — very few legal systems allowed for the prosecution of rape within marriage before the 1970s. Criminalization has occurred through various ways, including removal of statutory exemptions from the definitions of rape, judicial decisions, explicit legislative reference in statutory law preventing the use of marriage as a defence, or creation of a specific offense of marital rape, albeit at a lower level of punishment. In many countries, it is still unclear whether marital rape is covered by the ordinary rape laws, but in some countries non consensual sexual relations involving coercion may be prosecuted under general statutes prohibiting violence, such as assault and battery laws.

Historically, in much of the world, rape was seen as a crime or tort of theft of a man's property (usually either a husband or father). In this case, property damage meant that the crime was not legally recognized as damage against the victim, but instead to her father or husband's property. Therefore, by definition a husband could not rape his wife. The view that a husband cannot be charged with the rape of his wife was described by Sir Matthew Hale (1609–1676) in History of the Pleas of the Crown, published posthumously in 1736, where he wrote that "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract". Also, American and English law subscribed until the 20th century to the system of coverture, that is, a legal doctrine under which, upon marriage, a woman's legal rights were subsumed by those of her husband. The implication was that once unified by marriage, a spouse could no longer be charged with raping one's spouse, anymore than be charged with raping oneself. Many jurisdictions, including all fifty U. S. states, had criminalized marital rape by the 1990s. English common law also had a great impact on many legal systems of the world through colonialism. Kersti Yllö states in the prologue of Understanding Marital Rape In a Global Context, "In some cultures, consent is not even something that an individual wife can give. The families that arranged the marriage guarantee her permanent consent." Control over a wife's sexuality was only a part of the greater control that men had in all other areas concerning her. A husband's control over his wife's body could also be seen in the way adultery between a wife and another man was constructed; for example in 1707, English Lord Chief Justice John Holt described the act of a man having sexual relations with another man's wife as "the highest invasion of property". For this reason, in many cultures there was a conflation between the crimes of rape and adultery, since both were seen and understood as a violation of the rights of the husband. Spousal rape was considered a property crime against a husband, not against a woman's right to self determination. The property to be withheld in a female was her virginity; this was the commodity. Following this line of logic, a woman was (and still is in many cultures across the globe) first the property of her father, then, upon marriage, the property of her husband. However, if another man raped someone's wife, this was essentially stealing property (a women's sexuality). Rape has been, until recent decades, understood as a crime against honor and reputationnot only in domestic legislation, but also in international law; for example according to the Article 27 of the Fourth Geneva Convention, "Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault". It was not until the 1990s that the International Criminal Court statute recognized crimes of sexual violence as violent crimes against the person; "Not until the last half century was rape understood to be an offense against the woman, against her dignity, instead of against her family's or her husband's honor". to sexual intercourse with each other. This can be seen in English common law, in force in Anglo America and the British Commonwealth, where the very concept of marital rape was treated as an impossibility. This was illustrated most vividly by Sir Matthew Hale (1609–1676), in his legal treatise Historia Placitorum Coronæ or History of the Pleas of the Crown (posthumously, 1736) where he wrote that "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."

Sir Matthew Hale's statement in History of the Pleas of the Crown did not cite a legal precedent for it, though it relied on earlier standards. In a case of Lord Audley's (1593–1631), for instance, Hale cite's the jurist Bracton (c. 1210c. 1268) support of this rule, said to have derived from laws of King Æthelstan (r. 927–939) where upon the law holds that even "were the party of no chaste life, but a whore, yet there may be ravishment: but it is a good plea to say she was his concubine". A lawful marriage legitimizes the conjugal act itself, so "marital rape" is a contradiction in terms. While a physical assault against a spouse may be charged, such is distinct from the delegitimization of conjugal union itself as rape. Marriage then should not be defined as an "exemption" to rape but as "contradictory" to it. Marriage created conjugal rights between spouses, and marriage could not be annulled except by a private Act of Parliament—it therefore follows that a spouse could not revoke conjugal rights from the marriage, and therefore there could be no rape between spouses. The principle was repeated in East's Treatise of the Pleas of the Crown in 1803 and in Archbold's Pleading and Evidence in Criminal Cases in 1822. The principle was framed as an exemption to the law of rape in an English courtroom in R v Clarence, but it was not overturned until 1991 by the House of Lords in the case of R v R in 1991, where it was described as an anachronistic and offensive legal fiction.

From the beginnings of the 19th century feminist movement, activists challenged the presumed right of men to engage in forced or coerced sex with their wives. In the United States, "the nineteenth century woman's rights movement fought against a husband's right to control marital intercourse in a campaign that was remarkably developed, prolific, and insistent, given nineteenth century taboos against the public mention of sex or sexuality." Suffragists including Elizabeth Cady Stanton and Lucy Stone "singled out a woman's right to control marital intercourse as the core component of equality." Nineteenth century feminist demands centered on the right of women to control their bodies and fertility, positioned consent in marital sexual relations as an alternative to contraception and abortion (which many opposed), and also embraced eugenic concerns about excessive procreation. British liberal feminists John Stuart Mill and Harriet Taylor attacked marital rape as a gross double standard in law and as central to the subordination of women. Advocates of the Free Love Movement, including early anarcha feminists such as Voltairine de Cleyre and Emma Goldman, as well as Victoria Woodhull, Thomas Low Nichols, and Mary Gove Nichols, joined a critique of marital rape to advocate women's autonomy and sexual pleasure. Moses Harman, a Kansas based publisher and advocate for women's rights, was jailed twice under the Comstock laws for publishing articles (by a woman who was victimized and a doctor who treated marital rape survivors) decrying marital rape. De Cleyre defended Harman in a well known article, "Sexual Slavery." She refused to draw any distinction between rape outside of and within marriage: "And that is rape, where a man forces himself sexually upon a woman whether he is licensed by the marriage law to do it or not." British philosopher and writer Bertrand Russell in his book Marriage and Morals (1929) deplored the situation of married women. He wrote "Marriage is for woman the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution."

The traditional definition of rape in the United States is the forced sexual intercourse by a male with a "female not his wife", making it clear that the statutes did not apply to married couples. The 1962 Model Penal Code repeated the marital rape exemption, stating:
A male who has sexual intercourse with a female not his wife is guilty of rape if:

Reforms of marital rape laws in the United States began in the mid 1970s with the criminalization of marital rape. South Dakota criminalized marital rape in 1975, making it the first U. S. state to do so. Two years later, however, the South Dakota legislature decriminalized marital rape. After this change, marital rape would not be recriminalized in South Dakota until 1990. The earlier laws of the 1970s often required the husband and wife to no longer be living together for marital rape charges to be brought. The case in the United States that first challenged this cohabitation clause was Oregon v. Rideout in 1978. Still, in the 1990s, most states continued to differentiate between the way marital rape and non marital rape was viewed and treated. The laws have continued to change and evolve, with most states reforming their laws in the 21st century. But there are still states, like South Carolina, where marital and non marital rape are treated quite differently under the law. In the 1990s, most states differentiated between the way marital rape and non marital rape were treated. These differences were visible through shorter penalties, taking into account whether or not violence was used, and allowing for shorter reporting periods. (Bergen, 1996; Russell, 1990). The laws have continued to change and evolve, with most states reforming their legislation in the 21st century, in order to bring marital rape laws in line with non marital rape, but even today there remain differences in some states. With the removal, in 2005, of the requirement of a higher level of violence from the law of Tennessee, which now allows for marital rape in Tennessee to be treated like any other type of rape, South Carolina remains the only US state with a law requiring excessive force/violence (the force or violence used or threatened must be of a "high and aggravated nature"). In most states the criminalization has occurred by the removal of the exemptions from the general rape law by legislation, or by courts striking down such exemptions as unconstitutional. Some states have created a distinct crime of spousal rape. California, for example, has separate criminal offenses for rape (Article 261) and for spousal rape (Article 262).

Although the issue of marital rape was highlighted by feminists in the 19th century, and was also deplored by thinkers such as John Stuart Mill and Bertrand Russell (see above section 'Feminist critique in the 19th century'), it was not until the 1970s that this issue was raised at a political level. The late 1970s also saw the enactment of Sexual Offences (Amendment) Act 1976, which provided the first statutory definition of rape (prior to this rape was defined by the common law). The Criminal Law Revision Committee in their 1984 Report on Sexual Offences rejected the idea that the offense of rape should be extended to marital relations; writing the following:

"The majority of us believe that rape cannot be considered in the abstract as merely 'sexual intercourse without consent'. The circumstances of rape may be peculiarly grave. This feature is not present in the case of a husband and wife cohabiting with each other when an act of sexual intercourse occurs without the wife's consent. They may well have had sexual intercourse regularly before the act in question and, because a sexual relationship may involve a degree of compromise, she may sometimes have agreed only with some reluctance to such intercourse. Should he go further and force her to have sexual intercourse without her consent, this may evidence a failure of the marital relationship. But it is far from being the 'unique' and 'grave' offence described earlier. Where the husband goes so far as to cause injury, there are available a number of offences against the person with which he may be charged, but the gravamen of the husband's conduct is the injury he has caused not the sexual intercourse he has forced." The committee also expressed more general views on domestic violence arguing that "Violence occurs in some marriages but the wives do not always wish the marital tie to be severed" and reiterated the point that domestic incidents without physical injury would generally be outside the scope of the law: "Some of us consider that the criminal law should keep out of marital relationships between cohabiting partners—especially the marriage bed—except where injury arises, when there are other offences which can be charged."

The marital rape exemption was first referred to in 1736 in Matthew Hale's History of the Pleas of the Crown (see above). It was abolished in England and Wales in 1991 by the Appellate Committee of the House of Lords, in the case of R v R, which was the first occasion where the marital rights exemption had been appealed as far as the House of Lords, and it followed the trio of cases since 1988 where the marital rights exemption was held to exist. The leading judgment, unanimously approved, was given by Lord Keith of Kinkel. He stated that the contortions being performed in the lower courts in order to avoid applying the marital rights exemption were indicative of the absurdity of the rule, and held, agreeing with earlier judgments in Scotland and in the Court of Appeal in R v R, that "the fiction of implied consent has no useful purpose to serve today in the law of rape" and that the marital rights exemption was a "common law fiction" which had never been a true rule of English law. R's appeal was accordingly dismissed, and he was convicted of the rape of his wife. The first attempted prosecution of a husband for the rape of his wife was R v Clarke (1949). Rather than try to argue directly against Hale's logic, the court held that consent in this instance had been revoked by an order of the court for non cohabitation. It was the first of a number of cases in which the courts found reasons not to apply the exemption, notably R v O'Brien (1974) (the obtaining of decree nisi), R v Steele (1976) (an undertaking by the husband to the court not to molest the wife) and R v Roberts (1986) (the existence of a formal separation agreement). There are at least four recorded instances of a husband successfully relying on the exemption in England and Wales. The first was R v Miller (1954), where it was held that the wife had not legally revoked her consent despite having presented a divorce petition. R v Kowalski (1988) was followed by R v Sharples (1990), and R v J (1991), a judgment made after the first instance decision of the Crown Court in R v R but before the decision of the House of Lords that was to abolish the exemption. In Miller, Kowalski and R v J the husbands were instead convicted of assault. The R v Kowalski case involved, among other acts, an instance of non consensual oral sex. For this, the husband was convicted of indecent assault, as the court ruled that his wife's "implied consent" by virtue of marriage extended only to vaginal intercourse, not to other acts such as fellatio. (At that time the offense of 'rape' dealt only with vaginal intercourse.) In R v Sharples (1990) it was alleged that the husband had raped his wife in 1989. Despite the fact that the wife had obtained a family protection order before the alleged rape, the judge refused to accept that rape could legally occur, concluding that the family protection order had not removed the wife's implied consent, ruling that: "it cannot be inferred that by obtaining the order in these terms the wife had withdrawn her consent to sexual intercourse".

By 1991, when the exemption was removed, the Law Commission in its Working Paper of 1990 was already supporting the abolition of the exemption, a view reiterated in their Final Report that was published in 1992; and international moves in this direction were by now common. Therefore, the result of the R v R case was welcomed. But, while the removal of the exemption itself was not controversial, the way through which this was done was; since the change was not made through usual statutory modification. The cases of SW v UK and CR v UK arose in response to R v R; in which the applicants (convicted of rape and attempted rape of the wives) appealed to the European Court of Human Rights arguing that their convictions were a retrospective application of the law in breach of Article 7 of the European Convention on Human Rights. They claimed that at the time of the rape there was a common law exemption in force, therefore their convictions were post facto. Their case was not successful, with their arguments being rejected by the European Court of Human Rights, which ruled that the criminalization of marital rape had become a reasonably foreseeable development of the criminal law in the light of the evolution of social norms; and that the Article 7 does not prohibit the gradual judicial evolution of the interpretation of an offense, provided the result is consistent with the essence of the offense and that it could be reasonably foreseen. A new definition of the offense of 'rape' was created in 1994 by the section 142 of the Criminal Justice and Public Order Act 1994, providing a broader definition that included anal sex; and an even broader definition was created by the Sexual Offences Act 2003, including oral sex. The law on rape does not—and did not ever since the removal of the marital exemption in 1991—provide for any different punishment based on the relation between parties. However, in 1993, in R v W 1993 14 Cr App R (S) 256, the court ruled: "It should not be thought a different and lower scale automatically attaches to the rape of a wife by her husband. All will depend upon the circumstances of the case. Where the parties are cohabiting and the husband insisted upon intercourse against his wife's will but without violence or threats this may reduce sentence. Where the conduct is gross and involves threats or violence the relationship will be of little significance."

At the time of R v R (see "England and Wales" above), rape in Northern Ireland was a crime at common law. Northern Ireland common law is similar to that of England and Wales, and partially derives from the same sources; so any (alleged) exemption from its rape law was also removed by R v R. In March 2000, a Belfast man was convicted for raping his wife, in the first case of its kind in Northern Ireland. Until 28 July 2003, rape in Northern Ireland remained solely an offense at common law that could only be committed by a man against a woman only as vaginal intercourse. Between 28 July 2003 and 2 February 2009 rape was defined by the Criminal Justice (Northern Ireland) Order 2003 as "any act of non consensual intercourse by a man with a person", but the common law offense continued to exist, and oral sex remained excluded. On 2 February 2009 the Sexual Offences (Northern Ireland) Order 2008 came into force, abolishing the common law offense of rape, and providing a definition of rape that is similar to that of the Sexual Offences Act 2003 of England and Wales. The Public Prosecution Service for Northern Ireland has the same policy for marital rape as for other forms of rape; it states in its Policy for Prosecuting Cases of Rape document that: "The Policy applies to all types of rape, including marital and relationship rape, acquaintance and stranger rape, both against male and female victims".

In Australia, the immunity for marital rape was removed in all states and territories, either by statute or judicial decision, between late 1970s and early 1990s. Previously, the exemption of marital rape was based on the English common law offense of rape, being generally understood as "carnal knowledge", outside of marriage, of a female against her will. The common law definition of rape continued to apply in some states, while others codified the definition, which in each case included a marital exemption. In Queensland, for example, the provision read: "Any person who has carnal knowledge of a woman or girl, not his wife, without her consent, or with her consent, if the consent is obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of a crime, which is called rape." The first Australian state to deal with marital rape was South Australia, under the progressive initiatives of Premier Don Dunstan, which in 1976 partially removed the exemption. Section 73 of the Criminal Law Consolidation Act Amendment Act 1976 (SA) read: "No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person". Nevertheless, the laws did not go as far as equating marital with non marital rape; the law required violence or other aggravating circumstances, in order for an act of marital intercourse to be rape. The first Australian jurisdiction to completely remove the marital exemption was New South Wales in 1981. Western Australia, Victoria, and ACT did the same in 1985; and Tasmania in 1987. Discussions of criminalization of marital rape were already taking place in Queensland in the late 1970s, and the Northern Territory did the same in 1994. In 1991, in R v L, the High Court of Australia ruled that "if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law." In India, the controversies persist in the socio legal discourse surrounding the issue of marital rape. These debates not only ignore the pain, trauma and suffering women face because of sexual violence within an unequal marriage relationship but also overlook the fact that women are powerless and vulnerable in such a patriarchal setup

In a variety of cultures, marriage after a rape of an unmarried woman has been treated historically as a "resolution" to the rape, that is, a "reparatory marriage". In some countries, the mere offer to marry the person one has raped is sufficient to exonerate the perpetrator from criminal prosecution. Although laws that exonerate the perpetrator if he marries his victim after the rape are often associated with the Middle East, such laws were very common around the world until the second half of the 20th century. For instance, as late as 1997, 14 Latin American countries had such laws, although most of these countries have now abolished them. Whether women were forced to marry their rapist, or the marriage was concluded before the violence began, many victims remain in chronically violent relationships. While there are many reasons for which victims of marital rape remain in their marriages, one important reason is that divorce may be hard to obtain and/or is stigmatized. Lastly, some victims do not categorize their abuse as marital rape in order to minimize the violence they endure. This is used as a defense mechanism so they can continue to endure their abuse.

Forced marriage and child marriage are prevalent in many parts of the world, especially in parts of Asia and Africa. A forced marriage is a marriage where one or both participants are married without their freely given consent; while a child marriage is a marriage where one or both parties are younger than 18. These types of marriages are associated with a higher rate of domestic violence, including marital rape. These forms of marriage are most common in traditional societies which have no laws against sexual violence in marriage, and where it is also very difficult to leave a marriage. Incidents taking place in some of these countries (such as Yemen) have received international attention. The World Health Organization states, under the rubric "Customary forms of sexual violence", (pp. 156):
"Marriage is often used to legitimize a range of forms of sexual violence against women. The custom of marrying off young children, particularly girls, is found in many parts of the world. This practicelegal in many countriesis a form of sexual violence, since the children involved are unable to give or withhold their consent. The majority of them know little or nothing about sex before they are married." One type of forced marriages occurs in Guatemala (called robadas) and Mexico (called rapto). Robadas refers to " abductions, in which women are 'taken' during the period of courtship, sometimes semivoluntarily but other times by force, by a suitor who wants to start a marital relationship with them". Research has, nevertheless, associated specific regions with a very high level of violence, including sexual violence, against women by husbands/partners. An example of such a place is Ethiopia. The prevalence of marital rape depends on the particularly legal, national, and cultural context. In 1999, the World Health Organization conducted a study on violence against women in Tajikistan, surveying 900 women above the age of 14 in three districts of the country and found that 47% of married women reported having been forced to have sex by their husband. In Turkey 35.6% of women have experienced marital rape sometimes and 16.3% often. The earliest study in the Western World attempting to survey marital rape was an unpublished study by Joan Seites in the spring of 1975. Seites sent questionnaires to 40 rape crisis centers from a list compiled by the Center for Women Policy Studies (Washington, DC). 16 Centers completed questionnaire for a response rate of 40%. Of the 3,709 reported calls dealing with rape and attempted rape received by the 16 centers, 12 calls dealt with marital rape (0.3%). Because rape crisis centers did not always record the relationships of the callers, whether the 12 reported calls fully represent the number of married relationships cannot be certainly known. In 1982 Diana E. H. Russell, a feminist writer and activist, conducted the seminal study on marital rape. Her study surveyed a total of 930 women from San Francisco, California (50% non response rate, non English speaking Asian women were specifically excluded as non reliable respondents), of whom 644 were married, divorced, or who self identified as having a husband although not married. Six of these women (1%) self assessed that they had been raped by their husbands, ex husband, or de facto husbands. The survey interviewers, however, classified 74 (12%) of these women as having been raped. Of the 286 non married women in the sample, 228 (80%) were classified by the survey interviewers as having been raped. Russell found that when repeated instances of rape as classified by the survey interviewers, by husbands or ex husbands, over the entire course of the marriage are included, these account for 38% of all rape instances, in comparison to the remaining 62% occurring in non marital instances. David Finkelhor and Kersti Yllö published a study in 1985 on marital rape that drew on a scientifically selected area probability sample from the metropolitan Boston area of 323 women who were either married or previously married who had a child living with them between the ages of six and fourteen. The study found that of the women who were married the instance of sexual relations through physical force or the threat thereof was 3%. In 1994, Patricia Easteal, then Senior Criminologist at the Australian Institute of Criminology, published the results of survey on sexual assault in many settings. The respondents had all been victims of numerous forms of sexual assault. Of the victim sub sample, 10.4% had been raped by husbands or de facto husbands, with a further 2.3% raped by estranged husbands/de factos. In 2002 Basile published research intended to address the lack of a nationally probability sample to date that measured intimate sexual coercion faced by married women. Data were collected in a 1997 national poll by a random telephone survey of 1,108 residents in the continental U. S. of persons 18 years old or older. The survey had a 50% response rate. Of the 1,108 respondents, the 506 men were excluded from any inquiry into unwanted sexual experiences, leaving 602 (54%) women respondents for the study. 398 (66%) women indicated no unwanted sexual relations (their marital status is not given), and 204 (34%) women responded as having engaged in unwanted sex after being subject to some level of sexual coercion; types of sexual coercion included receiving 'a gift', 'a nice dinner', 'a back rub', 'kissing', etc. through threatened harm and physical coercion. Of this group, a sub sample of 120 (59%) were married, of which 9% responded as having been subject to physical force.

Rape by a spouse, partner or ex partner is more often associated with physical violence. A nine nation study within the European Union found that current or ex partners were the perpetrators of around 25% of all sexual assaults, and that violence was more common in assaults by ex partners (50% of the time) and partners (40%) than in assaults by strangers or recent acquaintances (25%). Attributing the effects of marital rape in research is problematic as it is nearly impossible to find a large enough sample of spouses to study who have experienced sexual violence but have not also been physically assaulted by their spouse. Marital rape can spread sexually transmitted infections and HIV, adversely affecting a victim's physical and psychological health. In sub Saharan countries with very high prevalence rates of HIV, such as Lesotho, instances of multiple partnerships and marital rape exacerbate the spread of HIV. While rape by a stranger is highly traumatic, it is typically a one time event and is clearly understood as rape. In the case of rape by a spouse or long term sexual partner, the history of the relationship affects the victim's reactions. There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger. Marital rape may occur as part of an abusive relationship. Trauma from the rape adds to the effect of other abusive acts or abusive and demeaning talk. Furthermore, marital rape is rarely a one time event, but a repeated if not frequent occurrence. Whether it takes place once or is part of an established pattern of domestic violence, trauma from rape has serious long term consequences for victims regardless of whether the assault is prosecuted or not. Unlike other forms of rape, where the victim can remove themselves from the company of the rapist and never interact with them again, in the case of marital rape the victim often has no choice but to continue living with their spouse: in many parts of the world divorce is very difficult to obtain and is also highly stigmatized. The researchers Finkelhor and Yllö remarked in their 1985 metropolitan Boston area study that:

Family broils and dissentions cannot be investigated before the tribunals of the country, without casting a shade over the character of those who are unfortunately engaged in the controversy. To screen from public reproach those who may be thus unhappily situated, let the husband be permitted to exercise the right of moderate chastisement, in cases of great emergency, and use salutary restraints in every case of misbehaviour, without being subjected to vexatious prosecutions, resulting in the mutual discredit and shame of all parties concerned

Although by the late 19th century courts were unanimously agreeing that husbands no longer had the right to inflict "chastisement" on their wives, the public policy was set at ignoring incidents deemed not 'serious enough' for legal intervention. In 1874, the Supreme Court of North Carolina ruled:

We may assume that the old doctrine, that a husband had a right to whip his wife, provided he used a switch no larger than his thumb, is not law in North Carolina. Indeed, the Courts have advanced from that barbarism until they have reached the position, that the husband has no right to chastise his wife, under any circumstances. But from motives of public policy,in order to preserve the sanctity of the domestic circle, the Courts will not listen to trivial complaints. If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive. No general rule can be applied, but each case must depend upon the circumstances surrounding it. Today, husbands continue to be immune from prosecution in case of certain forms of physical abuse against their wives in some countries. For instance, in Iraq husbands have a legal right to "punish" their wives. The criminal code states that there is no crime if an act is committed while exercising a legal right. Examples of legal rights include: "The punishment of a wife by her husband, the disciplining by parents and teachers of children under their authority within certain limits prescribed by law or by custom". In 2010, the United Arab Emirates's Supreme Court ruled that a man has the right to physically discipline his wife and children as long as he does not leave physical marks.

Legally, governments have direct impact on the occurrence of marital rape. The state " engages in the definition, monitoring, and sanctioning of appropriate behavior". Police departments are another state institution that treats domestic violence differently than other forms of violence. Police often label domestic abuse calls as low priority, respond slower, and focus on what provoked the abuse rather than the violent actions of the perpetrator.

For many cultures, ideas of marital rape seem often foreign imposed and contradict the belief that such matters should be dealt with privately rather than by the government. The act of imposing sexual intercourse against the will of the wife is often not identified as morally wrong, and so it is difficult to attempt to stop the practice, "Often, men who coerce a spouse into a sexual act believe their actions are legitimate because they are married to the woman." (WHO, pp. 149). Young women from various settings in South Asia explained in surveys that even if they felt discomfort and did not want to have sex, they accepted their husbands' wishes and submitted, fearing that otherwise they would be beaten. In many developing countries it is believedby both men and womenthat a husband is entitled to sex any time he demands it, and that if his wife refuses him, he has the right to use force. ), and depend on their husbands for their entire life. This situation leaves women with very little sexual autonomy. The notion that women are sexually autonomous and therefore have the ability to give or retract consent is not universally understood. Gabriella Torres writes, "The degree to which women and men view themselves as unique social beings with a full ability to make choices and suffer consequences varies by culture." The prohibition of rape serves other purposes, such as protection of the rights of male relatives or husband, enforcing of religious laws against sex outside of marriage, or preservation of a woman's respect and reputation in society. Under such ideologies it is difficult to accept the concept of marital rape. Richard A. Posner writes that, "Traditionally, rape was the offense of depriving a father or husband of a valuable assethis wife's chastity or his daughter's virginity". In many countries of the world, including Morocco, Algeria, Tunisia, Jordan, the severity of the legal punishment for rape depends on whether the victim was a virgin. Rhonda Copleon writes that, "Where rape is treated as a crime against honor, the honor of women is called into question and virginity or chastity is often a precondition."

Marital or spousal rape is prohibited by Jewish law. Rabbinic Jewish law is generally based on rabbinic extrapolation from the Torah, and debate by generations of sages around various moral, ethical, and practical topics. The laws derived from these debates govern religious and social life. In the case of spousal rape, the law is derived in part from Proverbs 19:2, "Also, it is not good for the soul to be without knowledge [or wisdom], and he that hastens with his feet sins". This was stated by Rabbi Rami bar Ḥama said in the name of Rav Assi: "It is prohibited for a man to force his wife in the conjugal mitzvah, [i. e., sexual relations,] as it is stated: “And he who hastens with his feet sins” (Proverbs 19:2). [The term “his feet” is understood here as a euphemism for intercourse.]" Separately, Rava wrote (Ketubot 51b): "'Any woman against whom assault began under compulsion, even if it terminated with her consent,' is not considered to have committed adultery, but rather to have been raped." Maimonides wrote that while a man's wife is "permitted to him at all times", a "husband may not force himself sexually on his wife, if she does not consent. Rather [intercourse] should be with the consent and happiness of both husband and wife." The Shulchan Aruch, a major code of Jewish law, addresses this concept in two separate rulings: "A man is forbidden to have intercourse with his wife if he is angry with her", and "He may not have intercourse without her consent, and if she is not interested he should appease her until she is interested."

Another sustaining factor is the obligatory roles placed on wives and what they come to understand as their "duty". For example, "Vietnamese women are expected to sacrifice for their families, especially for their children, which includes, for some, acceding to husbands’ sexual demands". Their "duty" is to maintain family harmony and happiness. It is understood as being in comparison to femininity, and more specifically, in opposition to femininity: Masculinity is to superiority as femininity is to subservience. Therefore, masculinity is correlated with aggression in such a way that scholars argue violence is a way for men to show their masculine identity. Another expectation of masculinity is that men are not to show their emotion.

Although marital rape is not always defined as such in different cultures, there is a universal understanding of the violation that comes with rape. Yllö & Torres argue that "marital rape is regularly constituted across cultures as a locally recognized social violation—one that is understood to impede women in those particular cultural contexts from aspiring to a good human life." Other problems arise from the fact that, in some countries where marital rape is illegal, many people are not aware of the existing laws. In some parts of the world marital rape laws are new and rarely enacted, therefore, some people are not aware of their existence. Alternatively, traditional norms concerning marriage may be deeply rooted in the conscience of the population. Substantial segments of the population may therefore not conceptualize that in any modern views of sexuality, it is wroth to force a spouse to have sex is wrong, much less illegal. For instance, a report by Amnesty International showed that although marital rape is illegal in Hungary, in a public opinion poll of nearly 1,200 people in 2006, a total of 62% did not know that marital rape was a punishable crime: over 41% of men and nearly 56% of women thought it was not punishable as a crime in Hungarian law, and nearly 12% did not know. A 2010 study in South Africa, (where marital rape was made illegal in 1993), showed that only 55% of respondents agreed with the affirmation "I think it is possible for a woman to be raped by her husband". Although in recent years some countries in Africa have enacted laws against marital rape, in most parts of the continent forced marital sex is not a criminal offense. A 2003 report by Human Rights Watch stated that: "With few exceptions across Africa, marital rape is not recognized as a crime, and domestic violence is seen as a right of married men." The acceptability of domestic violence in most African countries is very high: surveys showed that the percentage of women aged 15–49 who think that a husband is justified in hitting or beating his wife under certain circumstances is, for example, 87% in Mali, 86% in Guinea, 80% in Central African Republic, 79% in South Sudan. Although more countries in Africa are now enacting laws against domestic violence, social norms make it difficult to enforce these laws; and many women are not aware of their rights: for instance in Ethiopia in a survey only 49% of women knew that wife beating is illegal (it was made illegal under the 2004 Criminal Code). The lack of legal and social recognition of marital rape in Africa has been cited as making the fight against HIV harder.

+ Marital rape legislation by country Country Criminalised Notes The law criminalizes rape but does not address spousal rape. Spousal rape can be punished by up to 15 years imprisonment. The Sexual Offences Act, 1995, includes in the definition of rape: "with a female person who is not his wife". The government enforced the law effectively. The laws of individual states and territories provide the penalties for rape. There are legal protections against spousal rape for women holding a court issued divorce decree, separation order, or non molestation order. As of 2018. it included the repeal of the marital rape exemption in the Penal Code. The law does not criminalize spousal rape and explicitly states that sexual intercourse by a man with his wife is not rape, as long as she is not younger than 14 years (15 years if she is ethnic Chinese). As of 2018. As of 2018 As of 2018. The law does not safeguard same sex couples or victims of marital rape. As of 2018. The legal definition of rape does not include spousal rape. The law specifically criminalizes rape of women, including spousal rape, and separately criminalizes “lascivious abuse” against both genders. The government enforced both laws. Penalties for rape are at least four years’ imprisonment. Spousal rape is also criminalzed in the area administered by Turkish Cypriots (Turkish Republic of Northern Cyprus). As of 2018. The law prohibits rape, prescribing criminal penalties of 15 to 25 years’ imprisonment, or life imprisonment for cases of rape involving armed abduction. Spousal rape is not illegal, based on a 1928 Court of Cassation ruling that "a wife cannot withhold sex from her husband without a valid reason according to sharia". Marital rape is not specifically addressed by statue. The World Bank's 2018 " "Women, Business and the Law" report states that the country's general rape laws apply to marital rape. An earlier (2011) report, the "UN Womens Justice Report" states there are no laws covering marital rape. As of 2018. As of 2018 As of 2018 Marital rape was criminalized in a 2012 amendment to the Criminal Code. As of 2018. Marital rape was criminalised by the Sexual Offenses Act 2010. While the law prohibits rape of men or women, it does not recognize spousal rape as a crime. but unlike other rapes is not a "public crime" and thereby requires the survivors to complain for prosecution to occur. As of 2018. However, until 2017, men married to those between 15 and 18 could not be convicted of rape. Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence. According to the Protection of Women From Domestic Violence Act (2005), other married women subject to "sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman” by their husband may demand for financial compensation including regular allowances and child custody. They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes. However, marital rape is still not a criminal offence in this case and is only a misdemeanour. Nevertheless, marital rape can be considered a form of domestic violence under the Law Regarding the Elimination of Violence in the Household, 2004. Rape is illegal and subject to strict penalties, including death, but it remained a problem. The law considers sex within marriage consensual by definition and, therefore, does not address spousal rape, including in cases of forced marriage. The law criminalizes rape (but not spousal rape) and permits a maximum sentence of life imprisonment if the victim dies. The law allows authorities to drop a rape case if the perpetrator marries the victim. As of 2018. As of 2018. Rape carries a maximum penalty of death, which the courts occasionally imposed for the crime; spousal rape and domestic violence are not considered crimes. Domestic violence is illegal, but there is no law against marital rape, and domestic violence often went unreported due to social stigma. In May 2014 the Protection of Women and Other Family Members from Domestic Violence Law added new offences of the use of threats or violence to claim a "marital right to intercourse." As of 2018. The law criminalizes rape but does not address spousal rape. By law a convicted rapist may avoid a 25 year prison sentence by marrying the survivor, regardless of her wishes—provided her family consents. Rape and domestic violence are criminal offenses, and although no law specifically criminalises spousal rape, a wife can file a complaint against her husband for rape or sexual assault under Article 149 of the Criminal Code. As of 2018. The concept of rape within marriage is not recognised. However, if a man "uses harm or the threat of violence to obtain sex from his wife, or any other person", he may be imprisoned up to five years if convicted according to Section 375A of the Penal Code (adopted on 7 September 2007). As of 2018. Rape, including spousal rape, is a criminal offense with penalties of five, 10, and up to 20 years in prison, depending on the type of offense. "Hakkaoui Law" (named after Minister for Family Affairs and Women's Issues, Bassima Hakkaoui, criminalising violence against women has come into force in September 2018 but failed to address marital rape. Rape is a crime and carries a maximum penalty of 25 years’ imprisonment. The 2016 Crimes Act specifically applies penalties for rape of married and de facto partners. Marital rape was also criminalised under the previous Criminal Code. The law criminalizes rape, including spousal rape. The maximum penalty is 20 years’ imprisonment. As of 2018. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 included in its definition of rape "to whom he or she is not validly married". This ordinance was repealed by the Protection of Women (Criminal Laws Amendment) Act, 2006 and rape was now defined in Section 375 of the Penal Code. The new definition did not include a reference to marriage. It was argued that the intent was to include marital rape in the offence. However, as of February 2015, there were no reports of a case being brought before a superior court to clarify the law. As of 2018 An anti rape law covering marital rape was passed in 1997. As of 2018. As of 2018. Rape, including spousal rape, is illegal and punishable by two to 12 years' imprisonment. As of 2018. In 2019, the Penal Code was amended under the Criminal Law Reform Act and Protection from Harassment (Amendment) Act to abolish the exemption from punishment in cases of marital rape. It went into force on January 1, 2020, criminalizing marital rape. There are no federal laws against spousal violence, including rape, although in May 2016, the Council of Ministers approved a national gender policy that gives the government the right to sue anyone convicted of committing gender based violence, such as the killing or rape of a woman. The law only prohibits spousal rape if the spouses are legally separated. Although there is no specific prohibition of marital rape, the amendment makes it possible to prosecute marital rape. Marital rape is not recognised as a criminal offence. The law provides for life imprisonment for persons convicted of rape, including spousal rape during periods of legal separation. On June 27, 2017, the Tunisian Parliament unanimously passed a comprehensive law addressing all forms of gender based violence, including physical, economic, and social violence. The provisions of this law include marital rape. Marital rape is illegal and punishable by sentences ranging from 3 to 25 years imprisonment. Rape is a crime punishable by a minimum sentence of five years’ imprisonment, but spousal rape is not included in the legal definition of this offense. As of 2018. The penal code does not address spousal rape. In October the Dubai Court of First Instance sentenced a policeman to six months in jail for raping his fiancée. The defendant argued that he considered the two married at the time of the offense. The law criminalizes rape of men or women, including spousal rape, and domestic violence. The law allows for sentences of two to 12 years' imprisonment for a person found guilty of rape, and authorities effectively enforced the law. Rape, including marital rape, is prohibited, however the courts did not try any rape cases as of 2017, according to human rights activists. The law criminalizes rape, but it does not criminalize spousal rape because the law states a woman may not refuse sexual relations with her husband. While the law criminalizes sexual offenses, including rape and spousal rape, these crimes remained widespread problems. Spousal rape received less attention than physical violence against women.