Legislation should specifically allow a husband or wife or intimate partner to be charged with sexual assault of his or her partner, whether or not they were living together at the time of the assault. Legislation should clarify that the existence of an intimate partner relationship between the parties is not a defense. (See: Article 278 of Canada, Criminal Code (R.S.C. 1985, c. C-46) as amended by 1980-81-82-83, c. 125, s. 19; UN Handbook 3.4.3.1; and Marital and Intimate Partner Sexual Assault, StopVAW, The Advocates for Human Rights.)
- For example, the Combating of Rape Act, No 8, (2000) of Namibia states that:
“No marriage or other relationship shall constitute a defence to a charge of rape under this Act.” (Section 2 (3))
(See: Definition of domestic violence in the Domestic Violence section of this Module which states: “Legislation should include the following provision in a definition of domestic violence: “No marriage or other relationship shall constitute a defence to a charge of sexual domestic violence under this legislation.” (See: UN Handbook 3.4.3.1.))
Legislation should not provide for less severe penalties for married offenders or special procedural hurdles for married survivors. (See: “The Legal Response to Violence against Women in the United States of America: Recent Reforms and Continuing Challenges,” by Sally F. Goldfarb, a paper for the United Nations expert group meeting on good practices in legislation on violence against women, 2008.)
CASE STUDY:
Council of Europe body adopts resolution condemning marital rape.
In September 2009, the Parliamentary Assembly of the Council of Europe adopted a resolution recognizing rape as a serious criminal violation of women’s rights and dignity, asking member states to extend their definitions of rape to include sexual violence committed by a spouse or intimate partner. Resolution 1691 (2009) states:
It needs to be made clear that any woman can be raped, but no woman deserves to be raped, and that consent is necessary for sexual intercourse every time, whatever the relationship of the victim with the rapist. 4
The Parliamentary Assembly recommended that member states:
“… establish marital rape as a separate offence under their domestic law so as to avoid any hindrance of legal proceedings, if they have not already done so; 5.3 [and]
penalise sexual violence and rape between spouses, cohabitant partners and ex-partners, if they have not already done so; and consider whether the attacker’s current or former close relationship with the victim should be an aggravating circumstance…” 5.4
The resolution also recommends that member states ensure that their legislation on rape and sexual violence reaches the highest possible standard, including providing victim support services and avoiding re-victimizing survivors through the criminal justice process.
(See: Resolution 1691 (2009), Parliamentary Assembly of the Council of Europe.)