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Marital Rape Laws in Canada–Was it Legal to Rape your Wife in the 1980s? Yes.

Canadian law only changed 26 years ago

1983 law change made spousal sexual assault an offence

CAROLINE ALPHONSO AND MARJAN FARAHBAKSH

Wednesday, Apr. 01, 2009

Afghanistan President Hamid Karzai was accused Tuesday of supporting a law that legalizes rape within marriage. But in Canada, it was only 26 years ago that the law changed to make spousal sexual assault an offence.

Canadian women had the right to vote, but when it came to sexual assault, their rights were limited.

Prior to 1983, rape was considered an offence outside of marriage. That meant a husband could not be charged with raping his wife, and a wife could only charge her spouse with indecent assault, common assault or assault causing bodily harm.

A year before the change to legislation occurred, NDP MP Margaret Mitchell raised the issue of violence against women. She was laughed at by MPs in the House of Commons when she demanded the government take action to stop domestic violence. The outcry from women’s groups brought attention to the issue.

Bill C-127 came into effect on Jan. 4, 1983, making sexual assault against one’s wife an offence. A wife can also charge her husband with aggravated sexual assault if the crime included a beating.

The crime of “rape” was removed from the Criminal Code and replaced with sexual assault. “The intention behind the change in terminology was to avoid the moral stigma connected to the word ‘rape’ and to stress the violent nature of the act,” according to the Toronto Rape Crisis Centre.

Spousal rape is a crime in most parts of the Western world. In its 1993 declaration on the elimination of violence against women, the United Nations High Commissioner for Human Rights established marital rape as a human-rights violation.

_______________________

Until rape was codified in the Criminal Code, rape was still a common-law offence. Rape itself is an offence with a long history. Canadian law derives from English common law, which can be traced back to medieval times. Common-law rules for rape have had some very hard criticism from women’s organizations. Historically, this crime was thought to be an offshoot of abduction. The view then taken was that the carrying off of a woman was of greater offence to her husband or father than to the woman herself (Estrich, 1987; Jones & Christie, 1992). This was best exemplified by the first U.S. statute, which was created in Massachusetts, that imposed death for the crime of rape except in circumstances in which the woman was single (Allison & Wrightsman, 1993).Sexism in society and law permeated the Canadian rape law before 1983, which reinforced the informal control of women and helped to perpetuate the ideological premises of the traditional gender order (Los, 1994). First, the patriarchal basis of marriage was protected when husbands had unlimited sexual access to their wives. A man was presumed to have some right of property over his wife’s body. Hence, marital rape was not recognized. Second, women were considered morally underdeveloped, and a woman’s testimony under oath could not be trusted; it alone could not convict the defendant. Rape complaints that were not made immediately after the attack were invalidated. Third, a woman’s credibility depended on her sexual reputation in that her previous sexual conduct could be freely questioned. The complainant’s sexual conduct with men other than the accused was considered important in establishing her consent. Finally, women’s sexuality was defined by men’s sexuality in that the requirement of vaginal penetration was the only standard with which a woman’s body could be sexually violated in rape.

Rape Law Reform in Canada: The Success and Limits of Legislation — Kwong-leung Tang

_______________________

“For centuries, husbands have been granted marital exemption to the crime of rape. It was not until the last half of the twentieth century that marital rape was even recognized as a legal problem. Most had believed that it was impossible for a husband to rape his wife due to 3 separate theories: the implied consent theory, the unities of person theory, and the property theory.”

The most common theory behind the impossibility of marital rape is the implied consent theory, which is structured around contract law.  Stated succinctly by Sir Matthew Hale in the seventeenth century, “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”  Hale believed that “matrimonial consent” was irrevocable.  Variations on Hale’s strict irrevocability principle allow for a wife to revoke her implied sexual consent only in times when “ordinary relations” in the marriage are suspended.  For example, a woman can revoke her implied consent when she and her husband are separated.  Until recently, this view was widely accepted.

The unity of person theory, on the other hand, does not even recognize the wife as a separate being capable of being raped.  This theory stems from the belief that when two people marry, they become one.  The being of the woman is incorporated into that of the husband such that the existence of the woman is effectively suspended during marriage.  Marital rape is thus impossible because a husband is not capable of raping himself.

From unity of person theory, it is not a far reach to the property theory. Under property theory, by marriage a woman becomes the property or chattel of her husband.  The goal behind this theory is to “inspire and perpetuate marital harmony.”  Under this view, sexual intercourse can never be rape because the husband is merely “making appropriate use of his property.”

Criminalizing marital rape: a comparison of judicial and legislative approaches.

Vanderbilt Journal of Transnational Law
| March 01, 2006 | Fus, Theresa | COPYRIGHT 1999 Vanderbilt University, School of Law.




9 responses

  1. http://rudhro.wordpress.com/2010/04/28/emma-goldman-marriage-and-love/

    April 28, 2010 at 8:43 pm

  2. It’s shameful how we in the West feel so superior to those in nations such as Saudi Arabia and Afghanistan, when we here in the lifetimes of those still living were just as backward. Women couldn’t vote here 91 years ago.

    April 28, 2010 at 8:48 pm

  3. I can’t agree with the concept of marriage because. . .
    I’m too far on the other side of rape.
    I want the special uterus in my life to be free.

    April 28, 2010 at 10:03 pm

  4. Kelly Kirkham

    And Canada’s shame continues……
    A Crown Attorney in Kitchener Ontario would not take my marital sexual assault/rape case to court in 2005 because judges sitting on the bench at that time in Kitchener still supported and accepted “implied consent” even though it had been removed from law as a legitimate defense in 1983.
    I was still considered to be “owned” by my husband.

    I am not lesser than. I can not be owned.

    March 6, 2011 at 6:56 pm

    • Sheila McKinnon

      I nearly fell off my chair when I saw this…
      But, guess what? It still hasn’t changed!
      My Ex husband refused to leave the matrimonial home after he ended a 28 year marriage. He sexually assaulted me on 3 separate occassions and I could not get him out of the house.

      I went to the police in 2007 after it happened and then could not pursue. I was strong enough this past year 2010 and the Crown Attorney will not lay charges.

      Does someone have to be in the room where the sexual assault is taking place for the Crown and Police to believe that it really happened!!!!

      I don’t know if a Private Prosecution done by myself would be of any value or not…

      April 9, 2011 at 6:23 pm

  5. Glenda

    In 1983 I was the second woman in Canada to have her husband charged with rape, this took place in Edmonton. He was given 6 months probation and broke in my home within a few weeks of his sentencing. I moved to another city but he found me again. The police tried to help but the courts always let him out even though he was continually being charged. Finally I changed my name took my kids and went into hiding. From reading the posts little has changed, whats the use of having laws in place if victims are not protected because of the court system that refuses to take the crime as a serious and life threatening crime. Why did I have to leave my home and change the lives of my children and myself moving away from the place I grew up and loved.

    April 20, 2011 at 9:58 pm

    • Melina

      I came across this in my criminology class.

      Bill C-41 (Sentencing) (proclaimed into force on September 3, 1996) amended the Criminal Code to require the courts to take into account the abuse of a spouse or a child as an aggravating factor in sentencing an offender for an offence. Spouses and children can now seek restitution from the offender for the expenses they incurred because they had to leave their home to avoid being harmed (Department Of Justice, 2011).

      April 13, 2012 at 3:58 pm

  6. Why is the definition of marital rape NOT gender neutral?

    July 14, 2011 at 10:33 am

  7. Pingback: [AUDIO] CBC RADIO’S QUIRKS AND QUARKS DISCUSSES THE HUMAN POPULATION REACHING 7 BILLION, HOW IT HAPPENED, WHAT IT MEANS, AND HOW WE SHOULD CARE « rudhro's ruminatoria

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