When did marital rape become a crime?

A large number of Britons do not regard non-consensual sex within marriage as rape, according to “alarming” new statistics.

A YouGov survey of 4,000 people commissioned by the End Violence Against Women Coalition has revealed that many British adults “remain confused about what constitutes rape”, the Evening Standard reports. The survey also highlights why access to justice is “beyond the reach of many victims”, the group added.

A third of respondents believed that non-consensual sex should not be considered rape if there was no sexual violence committed, while one in five women said that would not generally be considered rape if the victim had flirted on a date.

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On the subject of marital rape, “more than a third of over-65s” do not consider forced marital sex rape, along with 16% of people aged 16 to 24. Overall, one in four Britons believed that non-consensual sex within marriage did not constitute rape.

“Marital rape is a serious and frequently occurring form of domestic violence,” says HuffPost, and “strikes at the heart of the marriage covenant, taking the promise, as in some Christian marriage ceremonies, to cherish the body of the spouse and turning it into a horror”.

Marital rape is illegal in the UK, but the legal history of the crime is a controversial one.

When did marital rape become illegal in the UK?

The earliest written legal source on marital rape in the UK appeared in a 1736 treatise entitled History of the Pleas of the Crown by Sir Matthew Hale, a former Chief Justice of the Court of King’s Bench in England.

Hale argued that “the husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract”.

This perspective proved “extraordinarily influential” in other countries, many of whom published similar legislation, according to Professor Jill Elaine Hasday.

In 1822, barrister John Frederick Archbold published the mammoth legal tome Pleading and Evidence in Criminal Cases, which remains the leading practitioners’ text for criminal lawyers in England and Wales. In it, he reiterated the position that a husband “cannot be guilty of a rape upon his wife”.

This remained the legal reality until a landmark court judgment in 1991. The previous year, a man identified only as “R”, was convicted of attempting to rape his wife, but challenged the decision citing the marital rape exemption laid out by Hale and Archbold.

Following multiple appeals, the case eventually reached the House of Lords, which ruled against it unanimously, stating: “Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances.”

The illegality of rape within marriage was laid out explicitly under the Sexual Offences Act 2003.

Where is marital rape legal?

Marital rape is outlawed in most countries around the world, but a review of laws in 82 countries by women’s rights organisation Equality Now between 2014 and 2015 found ten countries currently allow spousal rape.

It found that it is legal in Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania. In four of these countries, “it is permitted even when the victim is a child”, Revelist reports.

However, these are the countries in which spousal rape is expressly allowed by law - many more countries have legislation that does not cover marital rape and considers sex within marriage consensual by definition, and thus they do not punish it as a criminal offence.

These include India, China, 13 African countries and all Middle Eastern countries apart from Qatar and Israel.