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.