Rape Within Marriage
Marriage is the legal contract of a union between a couple, commonly between a man and a woman, although that situation is changing throughout the US to allow non-heterosexual couples to wed. There are expectations that come with marrying someone, and one of those expectations is that there will be sexual activity between the two participants. Of course many now choose not to marry, and sexual activity occurs outside of the marriage contract. However, the contract of marriage has been deemed to confer consent to sexual activity and sex is understood as essential to marriage and the expectation of procreation (should the couple choose).
The Law
The expectation of sex has been used in law to understand blanket consent is implicitly given when one swears the vows. Once the bride has said, "I do" that consent is understood to mean she cannot and will not say "no" for the entirety of the marriage. If an act legally definable as rape did occur it was treated under as a ‘domestic violence’ incident. Historically police and prosecutors did not wish to become legally involved. Too often, the ‘he said/she said’ basis of any legal case meant the victim received little or no support and there was little chance of there being a successful prosecution.
A report published by the United Nations in 2011 found that the majority of member countries still did not recognize rape as a crime when committed in the context of a marriage. Rape is legally defined as an act of penetration without consent. In the United States, rape within marriage is a relatively recently recognized crime. It is now illegal in all 50 states but even as late as 1976 rape was not recognized as a crime that could be committed within marriage in any state. The exchanging of the marital vows was deemed to be the giving of consent to sex from that point onwards. Even now, rape within marriage is not deemed as serious a crime as other forms of rape. Only 18 states make no distinction between rape committed within the legally defined relationship that is marriage and rape committed outside of marriage.
The change in law has not led to a widespread change in attitudes, and as with most prosecutions of rape, the burden of proof is on the victim rather than the accused. When the rape occurs within marriage, the presumption of consent in the marriage vows imply make successful prosecution only possible when physical injury or corroborating evidence is available, or if the couple are estranged in some way.
Marriage
Although wording may vary according to ceremony chosen, vows include words giving one’s body to your spouse, and historically this vow has equated to sex. This legally has been and socially still is interpreted by many as the giving of one’s body to one’s partner and as conferring ongoing consent to sex. Rape is not a consenting act; it is an act of asserting the right to sex and the power to force sex on one’s partner without their consent. Forcing sex on one’s spouse is not an act of support, respect and love; it is an act of violence and power. There are many reasons why one’s spouse may say ‘no,’ for example fatigue, feeling unwell, or simply not being in the mood. Rape is not ‘making love,’ which is how the act of sex is often referred to for and by married couples. Rape breaks the marriage vow.
Consent
Consent is not ongoing. Consent can only be given at the time sex occurs, and is renewed every time sex is potentially about to occur. Marriage is a partnership of loving people living and growing together. Consent is respect for each other, as is marriage. The mutual respect one expects to exist between married couples necessitates mutual consent to be a natural part of the sexual acts that occur between partners.
The marriage vows are a promise to love, respect, support and care for each other, throughout each other’s lives. Forcing sex on one’s partner does not respect the vow one has made, or one’s partner. Not only is rape a real fact of some marriages, it is as serious as any other form of rape. The betrayal by the perpetrator of the victim makes it so.
If you have found yourself in this position and feel you have no legal avenue to pursue because you lack "proof" of said rape, at minimum it is a sign that your marriage and its vows are meaningless to your partner. Whether you choose to press charges or not, you must look very closely at your marriage and ask yourself whether this is what you want for yourself in the long term. If not, please take steps to protect yourself and find some place safe to stay. If you need assistance getting the nerve to leave, please seek out a therapist.