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Does International Law Really Require the Criminalization of Marital Rape?

Part of: International Legal Obligation to Criminalize Marital Rape

Published online by Cambridge University Press:  20 January 2017

Barbara Stark
Barbara Stark*
Affiliation:
Hofstra Law School
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Nothing can be said in favor of intimate sexual violence, including marital rape, as Randall and Venkatesh, the authors of Intimate Sexual Violence, Human Rights Obligations and the State, make plain. As the New York Court of Appeals held in 1984:

Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm. To ever imply consent to such an act is irrational and absurd. . . . A married woman has the same right to control her body as does an unmarried woman.

There is something to be said, however, in favor of clearly setting out a legal position before condemning it, in favor of a conservative approach to the wholesale expansion of human rights, and in favor of enabling women, even women in states that do not criminalize marital rape, to set their own priorities. The authors draw on international law to make a passionate case against marital rape, and against domestic laws that fail to recognize it as a crime. Their argument would be more persuasive if their demand for what domestic law must criminalize were clearer, if their international legal analysis were more rigorous and more focused, and if they justified the top-down approach they recommend here, which seems particularly problematic in this context.

Type
Symposium on the International Legal Obligation to Criminalize Marital Rape
Information
AJIL Unbound , Volume 109 , 2015 , pp. 332 - 336
Copyright
Copyright © American Society of International Law 2015

References

1 Unless, perhaps, the parties all consent. See, e.g., Franke, Katherine M., Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 Colum. L. Rev. 181 (2001)Google Scholar.

2 Randall, Melanie & Venkatesh, Vasanthi, Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations Under Human Rights Law, 109 AJIL Unbound 189 (2015)Google Scholar.

3 People v. Liberta, 474 N.E. 2d 567, 572-73 (N.Y. 1984).

4 Randall & Venkatesh, supra note 2, at 189.

5 Id. (emphasis added.) “40% of all assaulted women” in the United States would not be trivial, of course, but it is less alarming than “40% of all assaulted women” globally, which is the implication in a paragraph setting out the scope of an international problem.

6 World, Business and the Law: Protecting Women, World Bank Group.

7 Randall & Venkatesh, supra note 2, at 189. The authors do not provide any authority for this proposition.

8 World, Business and the Law: Protecting Women, WORLD BANK GROUP. The Bank study is also based on some dubious assumptions; e.g., “[i]t is assumed that the woman . . . [r]esides in the main business city of the economy being examined . . . questions below are based on statutory or codified law for civil law systems, and on case law, which for common law systems is law established by judicial decisions in cases that set binding precedents.” These are troubling assumptions, not only in economies where the majority of the women live in rural areas, but in countries, such as the United States, in which multiple, and wide ranging, local legal systems govern most family law. World Bank, Women, Buiness and the Law, Data Notes (2016).

9 “International law requires the criminalization of marital rape.” Randall & Venkatesh, supra note 2, at 190.

10 “Yet more than half the countries in the world do not explicitly criminalize sexual assault in marriage.” Id. at 189.

11 Id.

12 World, Business and the Law: Protecting Women, World Bank Group.

13 Id.

14 Randall & Venkatesh, supra note 2, at 194.

15 See id. at 189-190.

16 See, e.g., Katrin Bennhold, On Perilous Migrant Trail, Women Often Become Prey to Sexual Abuse, N.Y. Times, (Jan. 3, 2016) (describing the attack by a migrant wife against an asylum shelter manager in Berlin, who called the police when he learned the wife’s husband was beating her. The wife accused the manager of “stealing her husband.”).

17 Alston, Philip, Conjuring up New Human Rights: A Proposal for Quality Control, 78 AJIL 607 (1984)CrossRefGoogle Scholar.

18 Id. at 619-20.

19 Id. at 620-21.

20 See Randall & Venkatesh, supra note 2, at 190.

21 See Engle, Karen, Anti-Impunity and the Turn to Criminal Law in Human Rights, 100 Cornell L. Rev. 1069, 1069 (2015)Google Scholar (describing the “turn to international criminal law” by human rights advocates.)

22 See Randall & Venkatesh, supra note 2, at 191.

23 CEDAW, General Recommendation 19, UN Doc. A/47/38 (1992).

24 Randall & Venkatesh, supra note 2, at 191.

25 Convention on the Elimination of All Forms of Discrimination against Women: General Recommendations, United Nations Entity for Gender Equality and the Empowerment of Women.

26 See, e.g., CEDAW, Overview of the current working methods, para. 29, CEDAW/C/2004/1/4/Add.1 (explaining that the first step is an open dialogue between the Committee, NGOs, and specialized agencies. A Committee member then drafts the recommendation, which is discussed at a later meeting (the second step). At a following session (the third step), the revised draft is adopted.)

27 See Randall & Venkatesh, supra note 2, at 190.

28 Id. at 194.

29 World, Business and the Law: Protecting Women, World Bank Group.

30 Sherman, Lawrence W. et al., The Variable Effects of Arrest on Criminal Careers: The Milwaukee Domestic Violence Experiment, 83 J. Crim. L. & Criminology (1992)CrossRefGoogle Scholar. See also Iyengar, Radha, Does the Certainty of Arrest Reduce Domestic Violence? Evidence from Mandatory and Recommended Arrest Laws, Nber Working Paper NO. 13186 (2008)Google Scholar.

31 See Randall & Venkatesh, supra note 2, at 195.

32 Id.

33 See id. at 191-192.

34 Id. at n. 15.