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Published online by Cambridge University Press: 20 January 2017
There are cases that one never forgets. DPP v. Morgan is one of those for me. I read it as an eighteen-year-old in my first year of law school. It was in the criminal law class where we were being taught about rape. The facts left me shocked and outraged. Morgan went out drinking with his friends. At the end of the night, he invited the friends back to his house. He told them that they could have sex with his wife and added that they should not worry if she appeared to resist, because she liked it that way. The friends duly came over and helped themselves to his wife as per his instructions. Morgan also forced her to have sex with him despite her protestations. She experienced injuries which necessitated medical treatment. His friends were convicted of rape, but he was convicted of indecent assault. This seemed strange. Had they all not forced her to have sex with them despite her clearly expressed refusal? Why was he charged with a lesser crime? The reason was simple: he was her husband. Under the law as it then operated in England, there was no recognition of marital rape. Her consent to lifelong sex on demand, even if it was against her will, was taken as part of the contract of marriage. The words “I do” spoken at the time of the marriage, were taken to mean free access for the husband for as long as they both lived, or until the marriage was legally dissolved or a formal separation was in place.
1 DPP v. Morgan [1976] AC 182 (HL).
2 Randall, Melanie & Venkatesh, Vasanthi, Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations Under Human Rights Law, 109 AJIL Unbound 189, 190 (2015)Google Scholar.
3 Comm. on the Elimination of Discrimination Against Women, General Recommendation 19, para. 6, UN Doc. A/47/38 (1992).
4 The nonrecognition of same sex marriage in many societies means that the crime is still conceived in heteronormative terms. Indeed, it is telling that it is in those societies that are most resistant to permitting same sex marriages, or indeed recognizing the rights of same sex people, that still permit husbands to rape their wives.
5 The exchange of gifts is known by different names including lobolo, bogadi, (Southern Africa) ti-aseda (Akans), idana (Yoruba), maha-ri (Swahili) ikpo onu aku nwayi (Yoruba).
6 Change, Non Consensual Sex in Marriage, Marriage, Culture and Violence: Messages from the Survey (2002).
7 CEDAW, Concluding Observations: Uganda, para. 20, UN Doc. CEDAW/C/UGA/CO/7 (Oct. 22, 2010).
8 Id. at para. 23.
9 Mifumi (U) v. Attorney-General, [2015] UGSC 13 (Uganda).
10 The Muslim Personal Law Act of Sudan, 1991, Equality Now.
11 Gathered in Fareda Banda, Women, Law and Human Rights: An African Perspective 172-176 (2005).
12 The Sexual Offences and Domestic Violence Act, 1991 (Bah.), Equality Now.
13 There are still jurisdictions that permit religious tribunals to pronounce on divorce. This may result in a woman relying on the rapist-husband to release her from their contract of marriage.
14 H v. H 1999 (2) ZLR 358 (Zim.).
15 South African Law Reform Commission, The Practice of Ukuthwala, Revised Discussion Paper 138 (2015)Google Scholar; Monyane, Chelete, Is Ukuthwala another form of ‘Forced Marriage’?, 44 S. Afr. Rev. Soc. 64 (2013)Google Scholar.
16 UN Human Rights Comm., General Comment 28, Equality of Rights Between Men and Women (Article 3), para. 24, UN Doc. CCPR/C/21/Rev.1/Add.10 (2000).
17 Criminal Code (Malta), Equality Now. Equality Now notes that while Article 308 of the Palestinian Penal Code No. 16 of 1961 also exempts a perpetrator of rape, kidnapping, and statutory rape from prosecution and punishment if he marries his victim, it retains the possibility of reviving the prosecution.
18 The Penal Code (Leb.), Equality Now.
19 Criminal Code (Malta), Equality Now.
20 Holtmaat, Rikki, Article 5, in The UN Convention on the Elimination of all Forms of Discrimination Against Women: A Commentary 141 (Freeman, Marsha A. et al. eds., 2013)Google Scholar; Rebecca Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (2010); Ohchr Gender Stereotyping as a Human Rights Violation (2013).
21 CEDAW, Vertido v. Phil. Communication No. 18/2008, para. 8(9)(b), UN Doc. CEDAW/C/46/18/2008, (Sept. 1, 2010). See also, CEDAW, A.T. v. Hung, Communication No. 2/2003, UN Doc. CEDAW/32/D/2/2003 (Jan. 26, 2005), CEDAW, Isatou Jallow v. Bulg., Communication No. 32/2011, UN Doc. CEDAW/C/52/D/32/2011 (Aug. 28, 2012).
22 CEDAW, General Recommendation 33, UN Doc. CEDAW/C/GC/33, (July 23, 2013).
23 See for example the Democratic Republic Law 87-010 on the Family Code which gives the husband marital power over the wife including controlling her property, movements, and deciding where the family is to live, Law 87-010 on the Family Code (Dem. Rep. Congo), Equality Now.
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