Women and Justice: Keywords

Legislation

Code of Virginia: Rape (Va. Code § 18.2-61)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

This Virginia law defines rape as sexual intercourse with a complaining witness, or causing a complaining witness to engage in sexual intercourse with any other person, regardless of the existence of a spousal relationship and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim.



The Combating Rape Act (2000)

Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement

The Combating of Rape Act (the “Act”) seeks to prevent rape and provides minimum imprisonment sentences for rape. It also abolishes the previous law, which presumed that a boy under the age of 14 was incapable of rape and sexual intercourse. This Act also regulates the granting of bail to perpetrators to further protect the rights of the victim, and provides protection to victims of rape and sexual abuse. Finally, it abolishes the customary rule, common among rural areas, that marriage is a justification for, or a defense to, rape.  



Criminal Code of the Northern Territory of Australia (2019)

Sexual violence and rape

In the Northern Territory a person is guilty of a crime if he/she has sexual intercourse with another person without the other person’s consent and knows about, or is reckless as to, the lack of consent.  Consent is defined as “free and voluntary agreement.”  Circumstances in which a person does not consent to sexual intercourse include circumstances where: force is used; the victim fears force or harm to themselves or someone else; the victim is unconscious or not capable of free agreement; or the victim is unable to understand the sexual nature of the act.  In addition, consent is no longer assumed where the victim is married to the accused.  The prosecution must prove beyond reasonable doubt that the accused knew that the victim was not consenting or was reckless as to whether the victim was consenting.  Recklessness includes not giving any thought to whether the person is consenting to sexual penetration.  A defendant is not guilty of the offence if he or she mistakenly believed that consent had been given.



Domestic Case Law

Public Prosecutor of Canton Ticino v. A.A., 6S. 292/2004 Supreme Federal Court (2004)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A.A. and B.A., while estranged spouses but not having applied for legal separation, were living in the same house in two separate apartments, with A.A. paying for the rental of both units. The decision to live in the same house was accepted by B.A., as it allowed them to continue helping each other with everyday tasks and to oversee the children’s education together. On June 7, 2003, B.A. alleged that the two engaged in intercourse without B.A.’s consent. On May 24, 2004, the Canton Ticino Public Prosecutor indicted A.A. before the Court of Riviera for alleged sexual violence against his wife, B.A. On July 2, 2004, the Canton Ticino Court of Appeal dismissed the indictment of the Public Prosecutor, as B.A. had withdrawn the allegation of sexual violence committed against her by her husband. The Public Prosecutor appealed the decision before the Supreme Federal Court. Under Swiss law, sexual violence against a spouse can only be prosecuted where the victim has made allegations. The Supreme Federal Court, on the basis of the evidence collected in the course of the proceeding, and as argued by the Public Prosecutor, stated that the fact that the spouses were living in two separate apartments was not material, as they were nevertheless maintaining a “communion of life” status, which could be inferred from their mutual assistance, meals together, continued feelings of affection, and occasional sexual intercourses. Therefore, on the basis of such evidence, the Supreme Federal Court stated that the decision of the Court of Appeal to dismiss the indictment of A.A. was legitimate and rejected the Public Prosecutor’s appeal.



Jezile v. State High Court of South Africa: Western Cape Division (2015)

Domestic and intimate partner violence, Forced and early marriage, Harmful traditional practices, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The appellant was convicted in a regional magistrates' court of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault against a 14-year-old schoolgirl, whom he had married in accordance with customary marriage laws. After she ran away from the appellant, the appellant took the complainant to Cape Town by taxi, where they resided with the appellant's brother and his wife. There, the incidents of rape and assault occurred. The appellant raised as one of his defenses and as a ground of appeal that the alleged rapes took place in the context of a customary arranged marriage, or ukuthwala. According to expert evidence, ukuthwala was an irregular form of initiating a customary marriage. Experts have stated that, in its traditional form, ukuthwala was consensual and innocuous, but there existed an 'aberrant' form in which young girls were abducted and often raped and beaten to force them into marriage. The magistrate held that the matter was not about ukuthwala and its place in our constitutional democracy, but about whether the state had shown that the accused had committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. The court held that child-trafficking and any form of abuse or exploitation of minors for sexual purposes is not tolerated in South Africa’s constitutional dispensation. Furthermore, it ruled that the appellant could not rely on traditional ukuthwala as justification for his conduct because practices associated with an aberrant form of ukuthwala could not secure protection under the law. Thus, the Court could not find that he did not traffic the complainant for sexual purposes or that he had committed the rapes without the required intention  ̶  even on the rather precarious grounds of appellant’s assertion that his belief in the aberrant form of ukuthwala constituted a 'traditional' custom of his community.



Regina v. Gua High Court of Solomon Islands (2012)

Domestic and intimate partner violence, Gender discrimination, International law, Sexual violence and rape

Macberth Gua was charged with the rape of his estranged wife of ten years.  The victim had not filed any divorce proceedings and there was no formal separation.  The defendant dragged the victim into his vehicle under the threat of violence and drove her to a remote location where he forced himself on her.  The defendant’s defense relied upon the antiquated common law maxim that a husband could not be liable for involuntary sexual intercourse with his wife (the “marital rape exception”), as her agreement to wed constituted an irrevocable consent to marital relations.  Moreover, Section 136 of the Penal Code of the Solomon Islands provides an excessively narrow definition of rape: “Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband, is guilty of the felony termed rape.”  The question before the High Court was whether a husband could be held criminally liable for raping his wife.  The answer provided by the High Court was in the affirmative, which ruled that marriage is now regarded as a partnership of equals, and that this principle of equality has been reflected not only in international conventions to which the Solomon Islands is a party, but is also entrenched in the provisions of the Constitution.  In its rationale, the High Court noted that one of the international conventions to which the Solomon Islands is a party is CEDAW, which, in Article 15, calls on all State parties to accord women equality with men before the law and, in Article 16, calls for the same personal rights between husband and wife.  As for the Constitution, Sections 3 and 15 of the Constitution guarantee women equal rights and freedoms as men and afford them protection against all forms of discrimination, including discrimination on the ground of sex.  The High Court thus held that the rule exempting husbands from liability for rape on their wives is no longer applicable, that it is no longer supported by common law, and that it is offensive to modern standards and principles of equality found in international conventions and the Constitution.  Notwithstanding the foregoing, unfortunately in the sentencing decision following Regina v. Gua, the sentencing judge stated that “this is a case which has occurred as a result of domestic problems between a husband and his wife.  It is not an offence that has been committed to gratify one’s own sexual desires.  There is an underlying cause for the commission of the offence – the termination by the victim of her marriage to the accused.  Hence, the accused is not solely to be blamed for this incident.  The complainant must also share the blame.” 



Decision 2012Do14788 Supreme Court of South Korea (2013)

Gender-based violence in general

After threatening and assaulting the Victim (wife) with a deadly weapon, the Defendant (husband) had violent sexual intercourse with his wife after they had started using separate rooms due to consistent dispute.” The Supreme Court found that the term ‘female’ as the victim of rape as provided by Article 297 of the Criminal Act included the offender’s legally wedded wife and that the crime of rape was established when the husband had sexual intercourse with his wife by disabling or hindering resistance through violence or intimidation in a sustained marriage. The Supreme Court stated that the legal interests protected by rape laws are not ‘women’s fidelity’ or ‘sexual chastity’ concepts based on the premise of a man as a current or future spouse, but a woman’s own sexual autonomy as a free and independent individual. Therefore, the Court concluded that the crime of rape was established in this forced marital sex case.



PGA v. The Queen High Court of Australia (2012)

Domestic and intimate partner violence, Gender-based violence in general, Sexual violence and rape

This case concerns charges of assault and rape brought against a husband, the appellant, for the rape of his wife in 1963. In an appeal to the High Court, the appellant sought immunity for the rape of his wife, arguing that marital rape was not illegal at the time the events took place. The appellant argued that his wife gave irrevocable consent to sexual intercourse upon their marriage in 1962 pursuant to the era’s common law. The Court considered existing laws and writings from the time period in question, questioning whether the aforementioned immunity ever actually existed and ultimately deciding that “if it did, it had ceased to do so sometime before 1963.” On the basis of this analysis, the Court dismissed the appeal.



Minister for Immigration & Multicultural Affairs v. Ndege Federal Court of Australia (1999)

Domestic and intimate partner violence, Sexual violence and rape

A citizen of Tanzania sought protection on the basis that she feared persecution as a married woman in Tanzania. The applicant had been raped by her husband and argued that Tanzanian authorities were unwilling or unable to protect female citizens. The Refugee Review Tribunal denied the application because there was no evidence that the husband’s violence was related to any protected status. The court affirmed, but nevertheless remitted to the Tribunal to consider whether the husband’s violence against the applicant had been motived by a Convention related reason, such as race, religion, nationality, political opinion or of her membership in a particular social group.



People of the Philippines v. Edgar Jumawan Supreme Court of Philippines (2014)

Domestic and intimate partner violence, Gender-based violence in general, Sexual violence and rape

The appellant was convicted on two counts of marital rape. On appeal, the appellant argued that marital rape was not the equivalent of non-marital rape. This was the first documented case on marital rape to reach the Supreme Court. The Supreme Court rejected the appellant’s argument as essentially an attempt to revive old and now rejected standards that a husband could not be convicted of marital rape because of the “implied consent” of his wife. It found that under modern jurisprudence, the appellant’s argument would deny spouses equal protection under the constitution and that the elements and quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly regardless of the legal relationship between the accused and his accuser.



Williams v. State Alabama Court of Criminal Appeals (1986)

Domestic and intimate partner violence, Sexual violence and rape

A jury found Mr. Williams guilty of burglary and sodomy in the first degree. On appeal, Mr. Williams argued, among other things, that Alabama’s forcible sodomy statute was unconstitutional because it excluded a married person from liability. In other words, under the statute, a married person could not be convicted of forcibly sodomizing his or her spouse in Alabama. The appellate court held that the statute, on its face, discriminates between married and unmarried persons, and thus looked to see whether there was, “as a minimum, some ground of difference that rationally explains the different treatment accorded married and unmarried persons under the statute.” The court considered several traditional rationales for the marital exception. First, the court considered the implied consent theory – i.e., when a women makes her marriage vows, she impliedly consents to sexual intercourse with her husband during the marriage. The court rejected this rationale, finding that a “married person has the same right to control his or her body as does an unmarried person.” Because “any implied consent notion would give one spouse control over the other spouse’s bodily integrity,” it was not a rationale basis for the marital exemption. Second, the court rejected the proposed justification for the marital exemption that it protected against governmental invasion into marital privacy. The court found that marital privacy was not designed as a shield to protect against violent sexual assaults. Third, the court found untenable the argument that elimination of the marital exemption for forcible sodomy would disrupt marriages because it would discourage reconciliation: “When a marriage relationship has deteriorated to the point of forcible and unwanted sexual contact, reconciliation seems highly unlikely. Fourth, the court found problems with proof did not provide a rationale basis for the marital exemption because the evidentiary problems concerning one spouse’s lack of consent to an act of sodomy would be no more difficult than proving lack of consent by a victim involved in a non-marital relationship. Fifth, and finally, the court rejected the argument that the assault statutes provided alternative remedies available to a victim of forcible sodomy by a spouse, finding the vast differences in punishment disproved the alternative remedy theory. The court concluded that there can be no justification for forcible sodomy upon one’s spouse, and a rule that protected unmarried persons from forcible sodomy but not married persons could not withstand constitutional scrutiny. Therefore, the court severed and removed from the statute the marital exemption for the offense of forcible sodomy.



RH 1991:120 The Court of Appeal for Western Sweden (1991)

Domestic and intimate partner violence, Sexual violence and rape

["A person who, otherwise than as provided in Section 1 first paragraph (Author's note: rape), induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.] A woman was repeatedly forced, without the use of physical violence, to have sexual intercourse with her husband. In one instance the man tried to pull off the woman's pants after she had said that she did not want to have sexual intercourse with him. He then threatened her by saying he would forcibly open up her legs if she continued to refuse and twisted the woman's ankle, causing her substantial pain, as he attempted to keep her on the bed. The woman managed to run away from the bedroom and hold on to the door handle, thus making her husband unable to reach her. Instead, the man masturbated in front of the woman and then calmed down. The District Court found that in order to achieve sexual intercourse with the woman, the husband had used violence and threats. The woman had suffered pain, an injury to one foot, and probably also some bruising to her legs. The District Court found that the violence and the threats used could not be considered graver than those comparable to the coercion requirements in Chapter 6, Section 2 of the Swedish Penal Code and sentenced the husband to imprisonment for attempted sexual coercion. The Court of Appeal for Western Sweden upheld the District Court's ruling.



Cour d’appel, Bruxelles No. 89/3060 Court of Appeals of Belgium (1979)

Domestic and intimate partner violence, Sexual violence and rape

The Brussels Court of Appeal recognized marital rape and found that the husband who used serious violence to coerce his wife into having sex against her wishes was guilty of the criminal offense of rape.  Furthermore, this act was neither subject to bail nor to a defense of misunderstanding.



People v. Liberta New York Court of Appeals (1984)

Sexual violence and rape

The defendant's wife filed a criminal complaint against him, claiming that he raped her. He moved to dismiss the charge because, under New York Penal Law section 130.35 (“Section 130.35”), which contained a marital exemption, a husband could not be convicted of raping his wife.  The trial court granted Defendant’s motion and dismissed the indictment based on the marital exemption.  The Appellate Division reversed the decision of the trial court and remanded the case for trial.  The Court of Appeals affirmed the judgment of the Appellate Division, finding Section 130.35 was unconstitutional due to the marital exemption provision.  “Where a statute draws a distinction based on marital status, the classification must be reasonable and must be based upon ‘some ground of difference that rationally explains the different treatment.’”  The court found that there was no rational basis for distinguishing between marital rape and non-marital rape and thus declared the marital exemption unconstitutional.  The court reasoned that the marital rape exemption denies married women equal protection of the laws guaranteed by the New York and United States Constitutions.  Further, the court stated, “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 marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity.  A married woman has the same right to control her own body as does an unmarried woman.” 



State v. Rider Florida 3rd District Court of Appeal (1984)

Domestic and intimate partner violence, Sexual violence and rape

Rider was charged with sexual battery on his wife. The trial court dismissed the charges, reasoning that under a common-law exception to rape, a court could not convict a husband for the rape of his wife. The Court of Appeal disagreed, finding no legal authority for the exception and noting that Florida had replaced the common-law crime of rape with the statutory crime of sexual battery. Accordingly, consent to marriage did not include consent to acts of violence. Thus, the Court reversed the dismissal.



R. v. R. House of Lords (1992)

Sexual violence and rape

The defendant appeals his conviction for attempted rape on the grounds that a husband cannot rape his wife.   The House of Lords overturned the old common law rule that marriage automatically gave consent for sexual intercourse and held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to intercourse.



J.Y. Interpretation No.372 Supreme Court of Taiwan (1995)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A Supreme Court holding that "although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse's misconduct" is not unconstitutional.  To determine what constitutes "unbearable mistreatment in cohabitation," the courts should take into account the degree of the mistreatment, education levels, social status, and so on, determining if the degree of mistreatment goes beyond the violation of personal dignity and security that would be tolerated by most spouses.  Even with regards to cases where a "party temporarily loses control and overreacts to the spouse's misconduct," the precedent does not exclude applying the above factors to determine whether such overreactions threaten the continuity of the marriage.



Existencia del Delito de Violacion Supreme Court of Mexico

Sexual violence and rape

The Court held that for the crime of rape to have occurred, only penetration was necessary, not ejaculation. The Court also held that when two or more people conspire to commit rape, only one person need penetrate to hold all parties guilty of rape as long as the other people were involved in the steps leading up to the rape. The Court further held that when a husband rapes his wife, it is necessary for her to press charges before he can be charged with the crime. However, if her husband conspires with other men to rape her, then she need not press charges for her husband to be charged with the crime.

 

La Suprema Corte de Justicia de la Nación determinó que para que el crimen de violación sexual se considere consumado para propósitos legales, sólo penetración es suficiente, no eyaculación. La Corte también determinó que cuando dos o más personas conspiran para cometer una violación, sólo la penetración de la víctima por una persona es suficiente para contabilizar a todo el grupo culpable por la violación si todos participaron en los pasos y preparaciones para efectuar el acto. Cuando un esposo viola a su esposa, ella necesita presentar cargos contra él antes de que se le pueda encontrar culpable por el crimen. Sin embargo, si el esposo conspira con otros hombres para violar a su esposa, ella no necesita presentar cargos para que el sea encontrado culpable por el crimen.  

 



U1960.1075V Western High Court (1960)

Domestic and intimate partner violence, Sexual violence and rape

While in the process of obtaining a legal separation from his wife, the defendant broke into her bedroom and put her in a stranglehold until she surrendered to intercourse.   He was convicted of rape, thus recognizing marital rape within the definition of rape in the Penal Code.



U1984.253V Western High Court (1983)

Domestic and intimate partner violence, Sexual violence and rape

Over a period of fifteen months, the defendant kicked and beat his wife, forcibly sodomized her and introduced foreign objects into her rectum, which eventually contributed to her death.   Rejecting defendant's statement that his wife had consented to being beaten during intercourse, the Municipal Court found him guilty of assault and maltreatment and sentenced him to six years imprisonment.  The prosecution sought to increase the defendant's sentence.   The Court increased the defendant's sentence because of the aggravating circumstance of the long duration of grossly degrading sexual assault suffered by the victim. 



Cour de Cassation Chambre criminelle, Rejet, 5 septembre 1990, No. 90-83.786 Cour de Cassation (Chambre criminelle) (1990)

Domestic and intimate partner violence, Sexual violence and rape

Appellant appealed his indictment for aggravated rape, assault, and torture and acts of barbarism against his wife, arguing that marriage creates a presumption of consent to sexual relations between spouses. The Court found that such a presumption is not conclusive and that Section 332 of the Penal Code, which defines rape as "[a]ny act of sexual penetration, whatever its nature, committed against another person by violence, constraint, threat or surprise," does not exclude the possibility of rape within a marital relationship where there is a lack of consent. Furthermore, the same reasoning applies to sexual abuse other than penetration. The Court thus recognized that rape and other sexual abuse can take place within a marital relationship.



International Case Law

Jit Kumari Pangeni (Neupane) and Others v. Prime Ministers and Council of Ministers and Others Supreme Court of Nepal (2008)

Domestic and intimate partner violence, Gender discrimination, Sexual violence and rape

A woman who had been a repeated victim of marital rape petitioned the Supreme Court of Nepal to make sentencing for marital rape on par with sentencing for other types of rape. The Court found that punishing marital rape differently from other forms of rape violated equal rights provisions in the Interim Constitution and international law, especially considering that prior sentencing guidelines of three to six months put the victim in danger of repeated violence and rape. Although the Court did not have the power to change sentencing terms on existing offences, it directed the legislative authorities to change sentencing terms for marital rape, showing recognition of the gravity of rape as a violation of rights and dignity while also exhibiting a proactive will to reform legal codes in the name of equality.



A.S. v. Sweden CAT Committee (2000)

Domestic and intimate partner violence, Gender discrimination

A.S.’s husband was mysteriously killed during training with the Iranian Air Force, and the Iranian government subsequently declared him to be a martyr. As the widow of a martyr, A.S. was required to submit to the rigid rules of the Bonyad-e Shahid Islamic society, a foundation which supported and supervised the families of martyrs. In accordance with the aims of Bonyad-e Shahid, a high-ranking leader forced A.S. to be his wife in a sigheh marriage, a temporary marital arrangement that requires no registration or witnesses and is used as a measure to prevent women from being sexually active outside of marriage. A.S. was forced to live with her sigheh husband and perform sexual services for him at his command. A.S. later fell in love with a Christian man, and when the two were discovered together by the Iranian Revolutionary Guards, A.S. was taken into custody at the Ozghol police station in Tehran. A.S. was severely beaten by her sigheh husband for five to six hours. A.S. managed to obtain a visa to visit her sister in Sweden, and upon her arrival she applied for asylum; her application was rejected by both the Swedish Immigration Board and the Aliens Appeal Board. Since her departure from Iran, A.S. had been sentenced to death by stoning for adultery. In her complaint to the Committee, A.S. alleged that her forced return to Iran would constitute a violation of Sweden’s article 3 obligation not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Committee referred to the report of the Special Representative of the Commission on Human Rights on the situation of human rights in Iran which confirmed that Iran had recently sentenced several married women to death by stoning for adultery. Considering that A.S.’s account of events was consistent with the Committee’s knowledge about present human rights violations in Iran, the Committee held that in accordance with article 3 of the Convention, Sweden should refrain from forcing A.S. to return to Iran.



N.S.F. v. United Kingdom CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.