Summary
This article assesses the impact of the abolition of the marital rape
exemption in 1991 by analysing the outcome of cases of marital rape
heard at the Court of Appeal between 1991 and 1995. Sentences at the
Crown Courts are lower than for rapes by strangers and even so fifty per
cent of marital rape cases were reduced on appeal This article
criticises the reasons judges give for treating marital rape less
seriously in the light of research which indicates that marital rape is
just as, if not more, serious as rape by strangers and is linked in a
number of respects with marital murder.
Background
Marital rape is a relatively unresearched topic. An exception is a
paper by Naffine (1994) , an Australian sociologist, who seeks to
explain why it has taken so long in all jurisdictions to abolish the
rape immunity law for husbands. She argues that when laws giving women
substantial rights to the joint property on divorce had long been in
force, the rape immunity law survived precisely because its abolition
challenged the view of women as possessions and passive objects of their
husband's desires. Its abolition, therefore, carries the clear
implication that a woman now has the right to self determination.
It is significant that the law on rape evolved to protect the theft
of female sexual property from their husbands or fathers, not to protect
women themselves. The law gave male power over wives an institutional
legitimacy, in so far as the law on sexual assault was only significant
when it involved the 'property' of a man, usually a virginal daughter or
a wife. Rape violated not her bodily integrity, but the patriarchal
ownership of her sexuality. Therefore it was not possible for a man to
rape his wife as she belonged to him (see Clark 1987). The marital rape
exemption was an extension of the historic domination and control of
husbands over wives. The exemption had its origins in the following
statement by Lord Chief Justice Matthew Hale, in 1736: 'But the husband
cannot be guilty of rape committed by himself upon his lawful wife, for
by their mutual matrimonial consent and contract the wife hath given up
herself in this kind unto her husband which she cannot retract' (Hale
1971) . Hale wrote this at a time when marriage irrevocably bound a
woman to her husband as his property.
Rape originated as a crime at common law. The penalty for the crime,
and the fact that the crime was a felony, were referred to in a series
of statutes which were consolidated first in the Offences against the
Persons Acts (1861) and then in the Sexual Offences Act (1956). A
statutory definition of rape was not given until section 1 (1) (a) of
the Sexual Offences (Amendment) Act (1976) which expanded on the 1956
Act by providing that 'for the purposes of section 1 of the Sexual
Offences Act (1956) ( which relates to rape) a man commits rape if he
has unlawful sexual intercourse with a woman whom at the time of the
intercourse does not consent to it '. Where used elsewhere in the 1956
Act the expression 'unlawful' sexual intercourse had been assumed to
connote intercourse outside marriage, so it was generally accepted that,
by using the word unlawful, Parliament intended at least in some
respects to retain the marital immunity (see Law Commission 1992: 4).
The House of Lords precipitated a change in the law by its decision
in R v. R in 1991, in which they declined to apply the generally
accepted marital rape exemption. The decision abolished a man's immunity
from rape whether or not he was living with his wife. The exception to
immunity had previously been limited to husbands living separately under
court order as was shown by a case in 1955 where, although the husband
and wife were living separately, and the wife had started divorce
proceedings, there was no evidence 'to say that the wife's implied
consent to marital intercourse had been revoked by an act of the parties
or by an act of the courts'. The Criminal Law Revision Committee
considered the law should be changed but only in cases where the couple
were not cohabiting. The House of Lords had precipitated this action by
its decision in R v. R in 1991, in which they declined to apply the
generally accepted marital rape exemption.
In February 1991, Lord Lane, the Lord Chief Justice, headed the
special five judge Court of Appeal hearing and upheld the R v R decision
stating 'This is not the creation of a new offence. It is the removal of
a common law fiction which has become anachronistic and offensive'. In
doing so the Court overturned 250 years of legal immunity for wife
rapists, a decision that was upheld by the House of Lords on 23 October
1991. The House of Lords emphasised that Hale's statement no longer
represented the law and that the time has now arrived 'when the law
should declare that a rapist remains a rapist and is subject to the
criminal law, irrespective of his relationship with his victim' in the
following words:
the status of women, and particularly of married women, has changed
out of all recognition in various ways which are very familiar and
upon which it is unnecessary to go into detail. Apart from property
matters and the availability of matrimonial remedies, one of the most
important changes is that marriage is in modern times, regarded as a
partnership of equals, and no longer one in which the wife must be the
subservient chattel of the husband. Hale's proposition involves that
by marriage a wife gives her irrevocable consent to sexual intercourse
with her husband under all circumstances and irrespective of the state
of her health or how she happens to be feeling at the time.
The abolition of the marital rape immunity was finally integrated
into statute in June 1994.
Implementing the legislation
Since the Home Office do not categorise marital rape cases
separately, we do not know how many convictions occur. We do however
know that the number is tiny. In tracing the outcome of 100 cases of
reported rape from three police stations between 1988-1990 no cases
where the defendant and victim had had a previous sexual relationship
resulted in a conviction (see Lees 1997, Gregory and Lees 1999). It is
likely that if reported, such cases are more likely to be no-crimed by
the police, not referred onto the Crown Prosecution Service or dropped
by the CPS. One case involving a husband who had broken into the house,
attempted to rape and assaulted his wife, had initially been categorised
as attempted rape with ABH but had been downgraded to indecent assault
and ABH as the complainant explained:
"I was married for 17 years. I took a lot over the years for
the sake of the children. But you get to the point when you think
'that's it'. You can't explain the kind of pressure I was under when I
left, phone calls and hassle. I had an injunction as well to keep him
away. But he just flipped. I thought he was going to kill me. I'd
never seen him like that. He said 'Sleep with me and I'll give you
some money'. Then he tried to rape me. I fought and he beat me up. My
daughter was in the house and she heard everything. The police
arrested him for indecent assault. I said I wanted him arrested for
attempted rape. He got off for indecent assault but was found guilty
for ABH. I would rather he had been found guilty on the indecent
assault than the ABH charge".
At the hearing the indecent assault charge was not upheld and only
the ABH charge resulted in a conviction.
There is evidence from a number of studies that the closer the
relationship between the defendant and complainant, the more difficult
it is to gain a conviction (see Grace et al 1992, Gregory and Lees,
1996, 1999). It is likely that the Crown Prosecution Service (CPS) are
even more inclined to drop cases where there is a marital relationship.
For example, Temkin (1997) describes a case of marital rape where the
defendant had admitted the assault to the police, but the CPS decided
not to bring a prosecution, arguing that there was 'very little
likelihood' of the man reoffending and that charges would not be in the
public interest. Only the most extreme of marital rape cases are,
therefore, likely to reach court.
Sentences for rape cases have increased since 1986, when, in response
to public outrage at lenient sentences imposed by a number of judges,
Lord Chief Justice Lane issued new sentencing tariffs for rape, referred
to as the Billam Guidelines. These set down guidelines for contested
cases subject to various mitigating and aggravating factors. With no
mitigating circumstances 5 years was the starting point with fifteen
years for a campaign of rape. Where there were aggravating features,
such as two or more rapists acting together, rape which takes place in
the victim's home, rape coupled with the abuse of a position of
responsibility, or rape involving abduction and confinement of the
victim, the starting point was set at eight years. Various mitigating
factors were also outlined: that young offenders could claim special
mitigation, pleading guilty could reduce the sentence, and where the
victim 'had behaved in a manner which was calculated to lead the
defendant to believe that she would consent to sexual intercourse'. The
guidelines do not refer to the previous sexual relationship between the
victim and assailant as a mitigating factor, but does state the 'victims
previous sexual experience is irrelevant'. This, as we shall see, has
not prevented the courts using the existence of a previous sexual
relationship between the victim and assailant as a mitigating factor in
sentencing.
The Billam guidelines have led to some increase in length of
sentences, but the effect of these changes has been exaggerated. The
proportion of custodial sentences of at least five years (including
life) for the substantive offence of rape rose from 42 per cent in 1985
to 79 per cent in 1987 and for attempted rape from 10 per cent to 40 per
cent. Since 1987, however, the length of sentences has decreased.
According to research conducted by Robertshaw (1994) there appear to be
wide discrepancies in sentencing in different parts of the country. In
some places sentences of less than three years or non custodial
sentences are far more likely to be awarded than in other areas. This is
contrary to the Billam guidelines that sentences under three years are
not appropriate for rape even in cases with one or more mitigating
factors. The Court of Appeal regarded such low sentences to be justified
only in 'wholly exceptional circumstances' ( The Times 14 October 1993).
The Home Office does not collect statistics with reference to plea, so
it is not possible to know how many of those given low sentences had
pleaded guilty. Robertshaw concluded that 'nothing is known of the
particular combination of factors in each case, but the statistics
suggest at least that in some courts the 'wholly exceptional' is fairly
frequent'. According to his calculations 40 per cent of sentences in
1991 were of 5 years or less. He concluded that there were grounds for a
thorough monitoring and review of rape sentences and perhaps of the
criteria for approving judges for this class of cases .
Contrary to the 1991 instruction that the relationship between the
perpetrator and victim should not be a relevant factor in sentencing,
cases involving marital rape receive significantly lower sentences than
those involving rapes by strangers. In the past this appears to have
acted as a mitigating factor. Lloyd and Walmsley (1989) compared rape
sentencing in 1973 and 1985 and found that in both years stranger
rapists received much longer sentences than rapists who were
acquaintances or intimates. More recently following a change in the law,
Ranyard & Pease (1994:215) also concluded that the judiciary has
shown 'apparent indifference to the scaling provisions of Billam'.
Rumney (1999) argues that this is not due to inconsistency, but is a
deliberate policy. In his comparison of Court of Appeal cases, he found
that courts continued to discriminate against married women by passing
lower sentences for marital rape than for other types of rape. A
statistical comparison of sentences for different types of rape was
conducted. In comparing marital rape cases that went to appeal between
1988 and 1998, he found an average level of sentencing in cases of
stranger rape of 8.7 years compared to a level of 4.9 years in cases of
marital rape (which included an average of 3.3 years in cases where the
married couple were still cohabiting and 6.5 years where the married
couple were no longer co-habiting at the time of the rape). This
judicial response, he argued, mirrored the traditional ineffectiveness
of the judiciary in dealing with violence within the domestic sphere.
Court of Appeal Decisions
Before considering the Court of Appeal decisions, I shall briefly
outline judges comments about marital rape which give some indication of
the rationale used. In 1990, Sir Kenneth Jupp gave a man who twice raped
his ex-wife a two year suspended sentence, observing: 'This is a rare
sort of rape. It is not like someone being jumped on in the street. This
is within the family and does not impinge on the public' (Kennedy 1992:
121) . In 1992 Mr Justice McCullough sentenced Sean Riley to three years
after he had pleaded guilty to raping his wife. The judge made his views
of marital rape explicit: ' If you had done this to a stranger the
starting point would have been 8 years' . Riley's wife had decided to
leave at the time of the offence but the couple were still living
together. The prosecution alleged that Riley hit his wife and then raped
her. Minutes later he had held a carving knife to her throat and raped
her again. The judge did not appear to think this was life threatening
and commented: ' To be raped by a stranger must be more terrifying and
more long lasting in its effect'. Riley's wife Pauline was reported to
have said:
That suggests that being raped by your husband is not as awful as
being raped by someone you don't know. The judge has got it wrong.
Being raped by your own husband is very much worse. Here you are being
violated by the man you have loved, trusted and had children with.
It's unbelievably terrible and heart-breaking.
Judges who regard marital rape as less serious than stranger rape,
are failing to distinguish rape from sex. Such a view is also reflected
in the decisions of the Court of Appeal. The first case in 1988 after
the Billam guidelines were introduced was Berry where a man convicted of
raping his girlfriend after they had broken up was reduced from 6 to 4
years. Lord Justice Mustill summed up in the following way:
These facts show that this case if far from those which, for
example, a woman walking home has been set upon by a total stranger
and violated… the rape of a former wife or mistress may have
exceptional features which make it a less serious offence than
otherwise it would be… in some instances the violation of the person
and defilement that are inevitable features where a stranger rapes a
woman are not always present to the same degree when the offender and
the victim had previously had a long standing sexual relationship .
These same views are reflected in Thornton, another Court of Appeal
case,. In R. v. Thornton, the Court of Appeal had to decide whether to
uphold a two year sentence on a man convicted of raping a former
girlfriend. Lord Chief Justice concluded:
The way in which we view the matter is this. The mere fact that the
parties have over a period of nearly two years - 20 months - been
living together and having regular sexual intercourse obviously does
not license the man once that cohabitation or sexual intercourse has
ceased to have intercourse with the girl willy-nilly. It is however a
factor to which some weight can be given by the sentencing court for
the reasons which Lord Justice Mustill set out (see above).
Why the length of their relationship should have any relevance is not
explained. The problem is that judges are equating rape with sex rather
than with sexual violence.
Court of Appeal decisions regarding marital rape since its common law
abolition in 1991 were reviewed to investigate the effect of the change
in the law. These appeal cases represent the longer sentences awarded -
men receiving short prison or non-custodial sentences are unlikely to
appeal least their sentences are increased. Sentences can be increased
as well as decreased by the Court of Appeal. The Criminal Justice Act
1988 Section 36, confers power on the Attorney General to refer cases to
the Court of Appeal when it appears to him that a sentence imposed in
the Crown Court is unduly lenient.
Of the 10 cases which reached the England and Wales Court of Appeal
between 1991 and 1995, five of the appeals on sentencing were rejected
(the sentences averaged 5.4 years) and four of the remaining five
resulted in the reduction of the sentences which had originally averaged
5 years. All the cases in which the sentences were upheld involved
aggravating features, usually the use of a weapon combined with threats
to kill or injuries or in two cases theft. In all cases the wife had
either decided to separate or had already left, and there was evidence
of previous violence from the husband. However in no cases were the
sentences increased although the presence of such serious aggravating
factors and the generally low level of sentences, indicates that the
Billam guidelines were not been followed.
Only in the most extreme cases do judges take into account of the
need for women to be protected against violence from
husbands/exhusbands. Even when such violence is life threatening, there
appears to be a certain reluctance to view it with the opprobrium it
deserves. Even when the husband tracks his wife down in breach of
injunctions, breaks into the house, rapes and threatens her, Appeal
Court judges justify upholding sentences which are lower than Billam
advised. In the case of R v. Guy, for example, an estranged husband,
armed with a rifle and pistol, broke into his former wife's house, raped
her and threatened her life four months after the separation. He also
forced his penis into her mouth. Two months before he had attacked her
which had led to her taking out a non molestation order, the terms of
which were that he should not communicate with her or go within 100
yards of her house. He pleaded guilty to rape and possessing a firearm.
In upholding the sentence the Appeal judges stated:
We have to ask ourselves whether it can be said that this sentence
passed by the learned judge was either wrong in principle or
manifestly excessive in length. As we have said, this was a rape of an
extremely bad character. We are bound in these circumstances to put
first, in order of priorities, the plight of the victim and the need
for women to be protected from such behaviour, even against men to
whom they have formerly been married, before other considerations'.
The sentence of 6 years imprisonment was upheld, but in view of the
number of aggravating factors involved, including the breach of an
injunction, this sentence is well below the level recommended by the
Billam guidelines.
This contrasts with the sentences given to women who have been raped
by burglars and intruders. According to Billam where a man has 'broken
into or otherwise gained access to a place where the victim is living
the starting point in sentencing should be eight years'. However when
cases of stranger rape are analysed, the average sentence is 10.7 years
whereas in cases involving wives the sentence falls to 6.7 years and in
cases of relationship rape the average is only half the Billam
recommended starting point at 4.1 years. Rumney (1999) concluded that
'even in cases where there are serious aggravating factors the highest
sentence in any case of marital or relationship rape where the assailant
has gained access to the victim's home is one of eight years and in many
cases is significantly lower.
In two further cases (R v Malcolm) where the husband had threatened
his former partner at knife point, stolen from her and subjected her to
physical violence a sentence of 8 years was upheld and in (R v Stephen)
where the defendant was found guilty of rape, threatening to kill and
assault occasioning actual bodily harm, a 5 year sentence was upheld. In
the fourth case reviewed here (R. v. Henshall ) the wife had attempted
to withdraw the complaint of rape at knife point, the prosecution had
gone ahead. Yet in spite of the husband admitting to raping his wife
twice before, he was sentenced to a mere 3 years. A pre-sentence report
indicated that the attacks were motivated by revenge, and in view of the
aggravating features - the use of a weapon, threats to kill, the fact
that the man on the second occasion broke in and the protracted nature
of the second incident, the Court of Appeal did not increase the
sentence. Lastly, in the case of R v Haywood, a five year sentence for
rape was upheld, where the defendant had also been found guilty of
stealing and dishonesty, offences which appear to be taken more
seriously by the Court of Appeal.
According to Lord Taylor, the Lord Chief Justice, upholding these
sentences represented a shift in sentencing policy, in spite of the fact
that they are at the lower end of the scale recommended in the Billam
guidelines. He stated:
It should not be thought that a different and lower scale of
sentencing attaches automatically to rape by a husband as against that
set out in Billam. All will depend on the circumstances of the
individual case. Where the parties were cohabiting normally at the
time and the husband insisted on intercourse against his wife's will,
but without violence or threats, the consideration identified in Berry
and approved in Thornton will no doubt be an important factor in
reducing the level of sentencing. Where, however, the conduct is gross
and does involve threats or violence, the facts of the marriage, of
long cohabitation and that the defendant is no stranger will be of
little significance. Clearly between these two extremes, there will be
many intermediate degrees of gravity which judges will have to
consider case by case.
This is however a strangely contradictory statement and does take
into account that women are most at risk of being killed by partners
when they have decided to leave or shortly after they have left.
Appeals where sentences were reduced
There appear to be two grounds for reducing sentences: firstly, where
the couple are living together and, secondly, where there is evidence of
contact between the wife, even when estranged, and the defendant. This
is usually taken to imply that the couple are reconciled or considering
reconciliation rather than to indicate that the wife is terrified of
retaliation from the defendant on release. In the four cases where
sentences averaged five years, this was reduced to an average of 3.4
years. In the remaining case (Hind), a 10 year sentence was reduced to
six on the grounds that the 'victim had gone a long way to forgiving the
defendant' and had written to him and visited him in prison. The details
were as follows: when the victim had broken off the relationship the
defendant had broken into the house at midnight, tied her hands behind
her, undressed her, put a pillow over her head and raped her. He had
forced oral sex and put his hands round her throat and squeezed until
she became unconscious.
The details of the other four cases where sentences were reduced were
as follows: In R v Hutchinson a six year sentence was reduced to five
although again, the husband had broken into the house, after an
injunction has been granted to the wife who was separated. The grounds
for the reduction was a report that the wife had forgiven him and had
indicated in committal proceedings that she wished to withdraw the
complaint. Similarly, in Maskell the husband pleaded guilty to rape the
sentence was reduced from four to three years. The Court of Appeal
stated that 'he has regular visits from his children and friends and his
relationship with his wife is good'. Since they had separated some
months prior to the rape as a result of the defendant's heavy drinking,
this seemed to be rather unlikely and no evidence was produced in court.
(At the trial, defence counsel claimed to have seen letters from her to
the defendant) . In Brown, the defendant's sentence was reduced from six
to five years, although he had been subject to an injunction, and had
broken into his ex cohabitee's house, raped and badly injured her. Brown
had pleaded guilty to unlawfully wounding his former sexual partner by
kicking her about the head and body. She had been bleeding badly and had
to have seven stitches in her head wound. He was sentenced to two years
for unlawful wounding and six years for the rape, to run concurrently.
The judge who had sentenced him described him as 'an unreconstructed
chauvinist of the first order'. At the appeal, the three Lord Justices
reduced the sentence to five years arguing that 'having regard to the
previous sexual relationship between these parties, the absence of any
injury to Miss B and the absence of any weapon, we regard the sentence
of six years on the rape charge as being too long'. This seems a strange
argument in view of the conviction for unlawful wounding and the
admission by the defence that there was no mitigation.
In the case of couples still cohabiting together, even shorter
sentences appear to be the rule, and even these have a good chance of
reduction on appeal. In Collier the sentence was reduced on the grounds
that the appellant had pleaded guilty and 'while this was a serious
rape, a sentence of three years was appropriate for the offence'. The
details of the case gave no grounds for such a reduction. The defendant
had pleaded guilty to buggery and rape of his cohabitee in front of
their two children. He left the house returning several days later and
was again violent towards her. The Lords of Appeal stated that they had
taken into consideration that the assault had been aggravated by the
fact that the children had witnessed the incident, but nonetheless
reduced the sentence.
The Court of Appeal failed to consider in all these cases that an
aggravating factor is that many marital rape victims have a well founded
fear of the attack being repeated and are, for good reason, in fear of
their lives.
Why some wives resume contact
There are two main reasons why women who have testified against their
husbands or ex- husbands should try to retract evidence or communicate
with their husbands in prison. As I have shown, some women who try to
leave violent husbands are in real danger for their lives. When they
have also testified against their husbands this danger is intensified.
Cretney and Davis's (1997) study of the significance of compellability
in the prosecution of domestic assault found that women expressed fears
of retribution from their husband. One woman asked whether her
complainant had been withdrawn because she loved her husband replied:
'It was partly that and partly the threats he made. He was going to send
people up here to sort me out and for sex and things like that' (Cretney
and Davis 1997: 86). Yet the threat to their lives is not taken
seriously by the courts. Radford (1993) points out that legal provisions
for battered women such as the Domestic Violence and Matrimonial
Proceedings Act 1976 and the Domestic Proceedings and Magistrates'
Courts Act 1978 are not often enforced and do not guarantee protection
for wives.
Secondly, there is a strong tendency for women to minimise the threat
to their lives in order to cope with the fear. This often prevents their
escaping even when this is possible. This is analogous to the behaviour
of victims of disaster and war (see also Symonds 1979). Like battered
women, victims of disasters experience reactions of shock, denial,
disbelief, and fear as well as withdrawal and confusion. Such denial
leads to a delay in defining the situation accurately, and leads them to
respond with dazed or apathetic behaviour. (Browne 1987: 123) Later
reactions include suggestibility and dependence where victims may become
euphoric and convince themselves that somehow everything will be alright
and that they will wake up and find it was all a horrible dream.
Research on victims of rape in particular indicate that they experience
acute feelings of powerlessness, vulnerability, loss of control and self
blame (see Burgess & Holmstrom 1974, Koss & Harvey 1991).
Browne( 1987: 125) also draws parallels between the principles of
brainwashing used on prisoners of war and experiences of women in
battering relationships. Key ingredients include:
isolation of the victim from outside contacts, and sources of help,
humiliation and degradation followed by acts of kindness coupled with
the threat of a return to the degraded state if some type of
compliance is not obtained. Over time the victims of such treatment
become apathetic, sometimes react with despair, and may finally
totally submit.
Such reactions, combined with the real threat that their husbands may
retaliate on release, explains why wives may agree to communicate with
their ex-husbands., but such explanations do not appear to be introduced
in court.
Myths about marital rape
One of the main disputes about rape has centred on how exactly to
conceptualise and define rape and in particular its relationship to
violence. This is of particular important in marital rape cases where
the level of other physical violence appears to be more often present,
certainly in the cases that reach court. The latter form of violence
appears to be taken less seriously when inflicted by someone with whom a
sexual relationship has taken place.
It has been argued that rape should be seen as an act of violence and
humiliation rather than, as it is defined in Britain, as sexual
coercion. Zsuzsanna Adler, a British criminologist, for example, who
carried out the only previous study of English rape trials in the early
1980's, suggested that 'so long as rape is seen as an act of sexuality
rather than aggression and hostility, it will continue to be interpreted
as predominantly pleasurable to both parties rather than harmful to the
victim'. (Adler 1987 p 11) The refusal to link the crime to sex can
perhaps be seen as a reaction to claims that rape was the inevitable
result of innate male aggression coupled with an uncontrollable sexual
need. Research does not support this assumption. Groth and Birnbaum
(1979) American psychologists who ran a treatment programme for
convicted rapists, concluded that rape should be considered as
pseudosexual act, a pattern of sexual behaviour that is concerned more
with status, hostility, control and dominance than with the sensual
pleasure of sexual satisfaction. He concluded that men did not rape
because they were sexually frustrated. The offender always had other
alternatives or outlet for his sexual desires.
A problem with defining rape as violence is that it would lead to an
even greater need for the victim to have suffered physical injuries. As
Smart pointed out 'consent is a defence against the accusation of common
assault just as it is in rape. So, for example, if one boarded a crowded
bus and another passenger stood painfully on your foot, he/she would
have the defence that in entering such a situation you knowingly took
the risk of some harm. In many rape cases the fear of greater injury is
enough to make many women submit and, as is well documented, she may
have little in the way of bruises or cuts. Thus to call rape a simple
assault, or even actual or grievous bodily harm, would do little for
women who are already particularly vulnerable in rape trials because
they do not have visible physical injuries (Smart 1995 p 111). Calling
rape violence fails to address the coercive nature of some male sexual
behaviour when this is exactly what rape and rape trials are all about.
If rape is to be seen as a sexual crime, this does not mean that it is
an expression of sexual desire. Rather it should be seen as the use of
sexuality to express issues of power and domination.
Mackinnon (1987), American Professor of Law, agrees that in defining
rape as a crime of violence, the sexual aspect can be overlooked. She
observes (1989:172) 'under law, rape is a sex crime that is not regarded
as a crime when it looks like sex'. The injury of rape lies in the
meaning of the act to its victim, but the standard for criminality lies
in the meaning of the act to the assailant' ( 1989: 180). She points out
that the problem is that in a male dominated society it is difficult to
distinguish coercive and non coercive forms of social/sexual
interaction. However the level of coercion in marital cases would appear
to be extreme and even here, judges do not appear to acknowledge the
gravity of the attacks.
Treating rapes by strangers as more serious than rapes by partners is
based on other myths besides failing to make a proper distinction
between consensual sexual relations and rape: Such myths as the
assumption made by many judges, as we have seen, that that marital rape
is less serious experience for the victim, or that men who rape
strangers are a significantly more dangerous group of rapists. Regarding
the latter, there is no evidence that rapists can be divided into
distinct groups on the basis of whether or not they rape strangers,
acquaintances or sexual partners/ wives. Homicidal rapists sometimes
rape and kill both their wives and those they know less intimately.
Frederick West was charged in 1994 with killing 13 women many of whom
were tortured and raped, included his own wife and daughter. John Duffy,
a homicidal rapist charged with raping and killing three women in 1990,
also raped his wife before they separated. Richard Baker, a serial
rapist, who worked as a nightclub DJ, raped both women whom he dated and
leapt on women from behind in the classic 'stranger rape' scenario
(Guardian, May 21, 1999). We do not know how many rapists have
previously raped their wives but it certainly seems likely that many
have. In 1993 Heather Gordon gave evidence that her husband, who was
found guilty of raping and attempting to rape two girls aged 18 and 19
in Perth, had viciously raped her some time before. It is a myth that
different types of men rape their wives than rape strangers.
Research into the effects of marital rape indicates that the trauma
of being raped by someone with whom you are having or have had a
previous sexual relationship is just as traumatic, if not more
traumatic, than rape by a stranger. Russell (1990) in her US study of a
random sample of 930 women interviewed in the 1980's, where 14 per cent
said they had been raped by their husbands, found that a similar
proportion of women had been extremely upset by marital and stranger
rape. Moreover the long term effects of marital rape were greater than
for rape by strangers. 52 per cent of women raped by their husbands and
39 per cent raped by strangers stated that they suffered 'great' long
term effects. Russell concluded that her findings refuted the idea that
wife rape is less traumatic than other forms of rape.
Painter (1991) in her study of a representative sample of 1,007 women
in eleven different cities in the UK, found that 1 in 7 married women
said they had been 'coerced' into sex which had had a very detrimental
effect on their marriages. Yet only 20 per cent had revealed the rape to
a police officer, social worker or Rape Crisis Centre ( p 54). Those who
did disclose the rape were those who had been subjected to violent rape.
Rape was often associated with other physical violence. 70 per cent of
wives raped had been hit by their husbands and over half (56 per cent)
said they had been threatened with physical violence. Victims
experienced a variety of physical injuries including cuts, bruises,
black eyes, broken bones and psychological traumas including depression,
fear, shock, nausea and headaches. Painter concluded that ' not all
cases are equally grave or serious, but the fact that almost half of
those women raped by a husband had sought medical attention as a
consequence is clear indication that rape by a husband is a serious
matter'. Another factor that adds to the gravity of wife rape is that,
unlike stranger rape, it tends to occur more than once. Painter,
(1991:53) for example, also found that 'once a woman had been raped by
her husband, the rapes continued to occur frequently'. 80 per cent of
wives who said they had been raped had been raped on more than one
occasion. (p 53).
In their extensive study of rape trauma and how it should be treated,
American researchers, Koss & Harvey (1991:76) concluded that
comparisons between victims and stranger and nonstranger rape uncovered
no differences in reactions or recovery. Another comparative study of
victims of stranger, nonromantic acquaintance, date and marital rapes
found no differences in degree of psychological distress as measured by
psychological tests of depression and anxiety (Koss et al 1988).
Some researchers argue that marital rape is more traumatic than
stranger rape. Gidycz & Koss (1991) point out that rape by someone
you know is an even more personal attack that rape by a stranger. It
usually occurs in a situation previously associated with safety and
privacy. Having been raped by someone she knows causes a woman to
question her own judgement: her internal security checks have failed.
Katz (1991) collected information on 87 victims, women over 17 who had
been raped at least 6 months prior to the interview and compared the
reactions of those who had been raped by strangers with those raped by
acquaintances. He argued that a woman raped by an unknown assailant may
suffer more brutal physical violence but in his view 'it is probably
easier for her to see her own victimisation as a more random and less
personal event' (p254). He found that women raped by strangers blamed
themselves less for the rape, saw themselves in a more positive light,
and felt closer to recovery than did victims of an attack by an
acquaintance. The Law Commission !992 Report also accepted the view that
that 'marital rape ought to be viewed by the criminal law on the same
basis as extra-marital rape' (n10 at para3.18) since 'a number of
respondents agreed that one reason why marital rape was as serious as,
if not more serious than rape by a stranger was that it was an abuse of
an act used to express love and an abuse of trust'.
In research carried out for the 1993 Dispatches documentary, Getting
Away with Rape ( see Lees 1997) a questionnaire was completed by 100
women over the age of 17 who had been raped. I 4 of the assailants were
raped by complete strangers and 86 had had some contact with the victim
beforehand. This varied from minimal social contact to non-cohabiting
boyfriends and ex-cohabitees or husbands, ex-lovers, or other relatives.
20 were raped by men with whom they had had previous consensual sex, 46
by general acquaintances such as work colleagues, friend's friend,
person in a position of trust. and 20 by men they had met within the
previous 24 hours.
The use of violence was similar and substantial in both the stranger
and acquaintance groups (69.6% and 63.9% respectively). A higher
proportion of strangers threatened to kill their victims (39% against
14%) and twice as many of the women raped by strangers believed their
life was in danger (81.1% compared to 42%). Both groups however were
likely to slap, push or handle their victims roughly, or forcibly hold
them down (70-80%) and more of the acquaintance group choked or
strangled their victims (23% as against 15%). This puts women in greater
danger than is often appreciated as, in England, strangulation is a
common method by which men kill women they know ( see Home Office
Statistics 1997). Injuries and physical effects suffered by the women in
both groups were remarkably similar. About half of both groups suffered
minor bruises, scratches and soreness( 55% and 46%) and 27% , and 28% of
respective groups suffered severe bruising and 2% serious cuts ( see
Lees 1997).
The analysis of the questionnaires indicated that the effects on
survivors were often dramatic and long lasting. Many changed their life
style, moved house through fear that the rapist might return, had time
off or gave up work, broke up relationships with men and required long
term medication or counselling which was not often available. Many
reactions are typical of what American researchers, Burgess &
Holmstrom (1974) named the 'rape trauma syndrome' which many rape
victims suffer from. Women raped by acquaintances found the experience
even more difficult to come to terms with than those raped by strangers.
They felt betrayed - not just by the men but by their own judgement. It
also made them more fearful of men generally, since they no longer knew
whom to trust. The fact that some women also blamed themselves for the
rape made it harder for them to recover.
A woman I interviewed who had been raped by a cohabitee explained the
lack of trust that ensued:
If you are raped by someone you think you know, you're totally
shocked because you - you had an impression of this man and you think
you know him and suddenly he shows a wild animal side of himself and you
keep asking yourself 'Was I blind? Did he show these signs before, early
in our relationship? Didn't I want to see it or has he suddenly turned
into someone else? It makes it harder to trust people.
This body of research fails to support the reasoning by Appeal Court
judges. In no case did the judges mention the possibility that marital
rape may involve a breach of trust that should surely act as an
aggravating factor in sentencing. This is in spite of breach of trust
being taken into account in cases of child abuse (for example in D(1993)
14 Cr. App. R.(S.) 639 a father was convicted of rape and indecent
assault on two daughters over a long period. The case was described as
involving 'the gravest breach of trust imaginable'. Even in cases of
theft, breach of trust is seen as an aggravating factor, and in this
respect theft is being treated more seriously than rape ( see Rumney
1999)
MARITAL RAPE AND MARITAL MURDER
Rather than less serious than stranger rape, marital rape can
indicate a woman's life has been and still is at risk. Around half of
homicides of women in the UK are by their husband or co-habitee ( See
Radford 1993) Stark & Flitcraft (1996: 130) in their review of
homicide research world wide confirmed Lachman's 1978 conclusion that
'almost a third of all homicides take place within the immediate family,
another 21 per cent in romantic triangles or lover's quarrels and 27 per
cent among less intimate relatives and friends. In sum, at least half of
all homicides and approximately 66 per cent of primary homicides are
directly or indirectly domestic.
It is at the point of separation or divorce that women are most
vulnerable to being killed. It is also the time they are vulnerable to
being raped. Finkelhor & Yllo (1985) interviewed American women who
had experienced rape by a husband or lover and concluded that wife rape
is also most likely to occur during or after the break up of a
relationship. Diana Russell (1990) found that most of the cases that
reached court involved separated couples. In only one fifth (21 per
cent) of the cases in which wife rape occurred was the couple still
living together.
Ann Jones, who undertook a major American study of women who killed
their partners, concluded that 'it is because women leave or try to,
that they are killed'. (1991:367). She found that the reasons women kill
men are different. Women most often kill when violent men simply will
not quit. As one woman testified at her murder trial ' It seemed like
the more I tried to get away, the harder he beat me'. At least half of
all women who leave abusers are followed and harassed or assaulted
again, many of them fatally. It was at the point of separation that
their lives were most at risk.
In another US study Angela Browne found that 90 per cent of the women
subjected to violence in the family thought the abuser could or would
kill them and many were convinced that they could not escape this danger
by leaving. She found that some violent men searched desperately for
their partners once the woman left, often spending days and nights
'stalking her'. Even if she had moved away, they frequently attempted to
follow her, travelling anywhere they thought she might be. Browne
concluded 'She is theirs. She cannot leave and refuse to talk to them.
They may nearly kill their mates, but they do not want to lose them' (
Browne 1987: 115). Some of the women had been separated or divorced for
up to two years and yet were still experiencing life threatening
harassment and abuse. She concluded that many women stay in violent
marriages because they believe their partner would retaliate against an
attempt to leave him with further violence ( See Browne 1987 : 113).
More recently, Canadian researchers, Wilson and Daly (1998) computed
uxoricide rates for co-residing and estranged wives and also found an
increased risk immediately after separation. They found that a
remarkable proportion of uxoricide victims are estranged from their
killers. They draw on a number of Australian research studies: Allen
(1990), for example, reported that almost half of all wives who were
killed in New South Wales in the late nineteenth century were separated
from their killers at the time of the murder and the proportion was even
higher in the 1930s.
Wilson & Daly (1998) presents the term sexual proprietariness to
provide a guide to the repetitive theme which runs through homicide.
They argue that violence against wives is a product of aggressive
masculine inclinations to coerce and control wives and these
inclinations evolved and assumed their present forms in order to deter
infidelity and autonomy. Violence in pursuit of male sexual
proprietariness, they argue, is an adaptive mechanism which evolved as a
way of 'contributing to personal reproductive success in ancestral
environments'. They see wife assault and wife murder as motivationally
similar. Women who leave proprietary husbands are pursued, harassed, and
threatened and sometimes killed and/or raped. Historically, as we have
seen, the marital rape exemption embodied such proprietary control.
CONCLUSION
Marital rape and murder are linked in a number of ways. Both tend to
occur when a relationship is breaking up or shortly after the couple
have separated. Ending a relationship with a violent man places a woman
at particular risk for her life - either at the point of separation or
shortly afterwards. Marital rape can be the final straw that leads a
woman to leave a violent relationship or it can be an act of revenge by
a husband for leaving. In either case it indicates extreme proprietary
control. Both marital rape and murder are forms of extreme coercion
fuelled by revenge at the woman daring to leave or planning to leave
proceeded by extreme possessiveness (Wilson et al 1993).
Two conclusions can be drawn from a review of Court of Appeal
decisions between 1991 and 1995. In spite of the abolition of the
marital rape exclusion, marital rape is still not regarded as 'real
rape' by the judiciary. Sentences are both lower than the Billam
guidelines laid down and yet have a fifty per cent chance of being
further reduced on appeal. Lenient sentences passed by the lower courts
even where the victim, as in the case of Hind, became unconscious when
being strangled, are not increased. Moreover, in half the cases where
sentences were reduced, the main ground for allowing appeals is that
there has been some contact, however minimal, between the husband and
wife. Such contact was often minimal, unsubstantiated and and could well
have been caused by fear of retaliation since giving evidence against a
husband or partner is likely to place the woman's life at risk from
further violence.
Secondly, Court of Appeal judges fail to take into account the
connection between marital rape and murder. Even when the victim has
become unconscious due to strangulation, the charge is not attempted
murder and judges do not adhere to the Billam guidelines ( See Hind
1993). This is in spite of evidence that women are more likely to be
killed by an ex-partner or partner than by a stranger and some are
killed in exactly the circumstances of the rape. Judges implicitly
regard a husband as having certain sexual rights over his wife. The
notion that rape is merely an extension of the sexual relationship
reflects the myth, strongly contested by survivors and researchers, that
rape is an expression of sexual desire rather than proprietary control
often associated with murder.
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