- 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. Drafters should criminalize marital rape by stating that the relationship between the perpetrator and the victim does not bar application of sexual assault provisions. Legislation should include a provision that states that “no marriage or other relationship shall constitute a defense to a charge of sexual assault under the legislation.” (See UN Handbook, 3.4.3.1, law of Nepal) Provisions should apply “irrespective of the nature of the relationship between the perpetrator and the survivor.” (Criminal Code (1958) of Canada, § 278; Marital and Intimate Partner Sexual Assault, StopVAW, The Advocates for Human Rights)
- For example, the Combating of Rape Act (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)).
- Many countries retain some form of marital immunity for sexual assault, for example, less severe penalties for married offenders, or special procedural hurdles for married survivors. (See Goldfarb Expert Paper p.11 and Spousal Rape Laws Continue to Evolve, Women’s Enews)
The Parliamentary Assembly of the Council of Europe 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: European Policy Action Centre on Violence against Women, European Policy Action Centre on Violence against Women, "Council of Europe Takes a Strong Position on Rape, Including Marital Rape" (22 January 2010); and Resolution 1691 (2009), Parliamentary Assembly of the Council of Europe)
- 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).
- In cases of child marriage, drafters should ensure that provisions on rape of a minor also apply in situations where the husband is the perpetrator. Laws should prohibit and punish sexual intercourse with a minor, defined as any person under 18 years of age, as rape. Enacting statutory rape laws may also facilitate legal reform on minimum age for marriage laws.