Marital Rape And Sexual Rape

1177 Words5 Pages
Marital rape is rape committed by the person to whom the victim is married. Many decades passed before there was ever a law against marital rape, even today India, along with other countries do not have a law against it. Some people will say marital rape is impossible and others will say it is totally possible and is considered an actual rape. Mandal says, if the legal category of rape implies sex without consent and the legal understanding of marriage entails compulsory sex, then the two will be considered mutually exclusive and the very notion of ‘marital rape’ a contradiction and an impossibility. English jurists in the seventeenth and eighteenth centuries, such as Matthew Hale and William Blackstone, which provide doctrinal support for exempting husbands from the offence of rape, underscore exactly that: the conceptual impossibility of marital rape. For Hale, if the wife had consented to the matrimonial contract, then she could not retract that consent when it came to sex, which was an implicit term of that contract (Geis 1978) (255). In Canada, both prosecutors and defence lawyers alike think that the sexual history of a couple is relevant to rape trials, because if the wife usually consents to sex in a certain manner or in certain circumstances, then the husband has every reason to presume her consent at every occasion, thus resuscitating Hale’s theory of continuous consent in marriage (Lazar 2010) (256). Greenfield includes, prior to 1991, Sir Matthew Hale explains,
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