Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 215
Marital rape and impunity through marriage of rapist and
victim
Achieving access to justice for marital rape may be rendered
difficult or impossible in jurisdictions that do not recognize
marital rape as a crime, or where marital status is recognized
as a defence to rape. The underlying assumption for this is a
particularly tenacious cultural premise that it is impossible for a
man to rape his wife, as the institution of marriage implies a
constant and on-going agreement of the wife to sexual contact
with her husband at any time. In some States, this is also
expressed in legal rules that allow a rapist to avoid prosecution
if he marries his victim after having raped her.
The European Court of Human Rights has denounced the notion
of marital immunity as incompatible with human rights
principles. In the case of S.W. v the United Kingdom, where a
man sought to rely on the legal tradition that rape of a wife
was not possible in the law, the European Court of Human
Rights declared that:
“The essentially debasing character of rape is so
manifest that the result of the decisions of the Court of
Appeal and the House of Lords - that the applicant could
be convicted of attempted rape, irrespective of his
relationship with the victim - cannot be said to be at
variance with the object and purpose of Article 7 of the
Convention, namely to ensure that no one should be
subjected to arbitrary prosecution, conviction or
punishment. What is more, the abandonment of the
unacceptable idea of a husband being immune against
prosecution for rape of his wife was in conformity not
only with a civilised concept of marriage but also, and
above all, with the fundamental objectives of the
Convention, the very essence of which is respect for
human dignity and human freedom.” 568
568
S.W. v UK (1995) 52, paragraph 44.