Jurisprudential Analysis of Criminalization of Marital Rape

By | April 29, 2020
Criminalization of Marital Rape

Last Updated :

This article ‘Jurisprudential Analysis of Criminalization of Marital Rape’ will analyze from the Natural law and Utilitarian perspective as to whether marital rape should be criminalized or not.

Introduction: Jurisprudential Analysis of Criminalization of Marital Rape

The frequency of Marital Rape cases has increased in the last few decades. The real components of the marital rape consist of mental agony of being raped, the injury of being exploited and victimised by own Husband and the helplessness of being silent and unforgettable scars of the occurrences. The government of India has been focussing on making streets free from crimes but the women of this country have not been safe from the crimes committed on them in their own houses and which gets unnoticed by anyone.

The laws associated with Marital Rape have been enacted in most of the countries in the last couple of decades. The Criminalization of Marital Rape in most of the Countries is a sign that Marital Rape is a violation of human rights. Marital rape was criminalized in England in the case of R v. R[1]in the year 1991. It was suggested by the Verma Committee in to criminalize Marital Rape by amending the sexual assault laws in India.[2]

This article will analyze from the Natural law and Utilitarian perspective as to whether marital rape should be criminalized or not. Further, the article draws a comparative analysis and then separately criticizes the Natural Law and Utilitarian perspective over marital rape from a feminist perspective. Finally, a conclusion on the basis of this limited comparative study has been drawn to provide suggestions based on a feminist perspective.

I. Natural Law Perspective

A. Origin of Marital Rape Exemption

The contemporary debate over the exception of marital rape became controversial for the first time in the twentieth century. But for understanding this change, exemption of marital rape must be understood. For this, it is necessary to understand how the legal researchers of the eighteenth century upheld the validity of a marriage contract.

Blackstone discussed the marital contract under the heading of “private economical relations,” likening “husband and wife” to the other private relationships of “master and servant” and “parent and child”.[3]

B. Blackstone’s Conception of Marital Contract

All three legal relationships discussed by Blackstone for explaining the marital contract shows the unilateral distribution of power. Considering the “master-servant” and “parent-child” relationship first, ‘master’ and ‘parent’ can be seen as figures with clear authority. According to Blackstone, the ‘husband’ in the eighteenth century belonged to the same category as of ‘master’ and ‘parent’.

Blackstone drew a parallel relationship in all the three relationships and further calls it as ‘their rights and duties in private economical conditions’. But there exists an ideological difference between other private relationships and the contract of marriage because the marital contract identities of both husband and the wife are collectively understood as one identity. Inside the marital contract, the husband is superior to the wife.

In the nineteenth century, with the emergence of the ideology of individual rights, the idea of ‘right-less’ status of wife under the marital contract became problematic for the American Society.[4] The natural law philosophers in nineteenth-century again justified the unequal status of husband and wife and rerooted the marital status under natural law.

The inequality of power between husband and wife came to be understood as the reflection of natural law, rather than a man-made dictate.[5] The marital contract which can be defined as the codification of natural law placed institution of marriage above the individuals. The eighteenth, as well as nineteenth-century legal scholars, considered sexual intercourse as the fundamental aspect of the marital contract.

Blackstone said marital contract regulates the sexual instinct of the men. Further, the purpose of the marital contract turned into procreation. A central immunity is provided to the husbands in the form of ‘conjugal rights’ by the sexual core of the marital contract.  The theory of unity in marriage and the theory of the superiority of husband over the wife resulted in man’s natural sexual authority over the women set free in marriage.

C. Hale’s Conception of Marital Rape Exemption

Sir Mathew Hale, Chief Justice of England in the 17th century formulated the marital rape exemption on the basis of sex right.

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”[6]

The husband gains mental as well as physical control over the sexuality of his wife through a marital contract. Pateman defines marriage or sexual contract as the owner of a sexual property in another person.[7]

II. Critique of Natural Law Perspective

As already discussed, the natural law scholars of the 19th century justified the right-less status of wives on the basis of the theory of marital unity and the theory of the superiority of husband by finding its origin in natural law.

The 19th-century feminist scholars including John Stuart Mill, Elizabeth Cady Stanton and William Thompson used the same justification for attacking the Contract of Marriage. The contention put forward by the feminists of the 19th century was that women are not inferior to men but derives the equal and same natural rights.

A. Attack on Marital Contract

Elizabeth Stanton exposed the unequal treatment and unequal rights of men and women under the contract of marriage and asserted the independence and individuality of women.[8] The feminist scholars earlier criticized the idea of a wife as a piece of property. The criticism of the 19th century feminist scholars was aimed at a different idea of the wife as property and not only as ‘sexual subject’ as said by Pateman.[9]

The movement for equal rights of women made equality between the men and women an increasingly contemporary issue of the 19th century. The feminist theories proposed by feminist scholars on the subject matter criticised the natural law perspective on the marital rape exemption. The chief contention of the feminist was that just because a woman gets married, it does not mean she loses the right over herself.

There shall be no discrimination between married and unmarried women for providing the protection of the law against the rape. They further contended that marital rape shall not be exempted from the category of rape. The non-criminalization of marital rape is violative of the right to equality of married women and also violates their other fundamental rights. Every woman married or unmarried owe independence over herself over her sexuality.

In India, Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.[10] However, the decision in the case of Independent Thought v. Union of India,[11]directed the state to increase the age 18 above which a man can have forceful sexual intercourse with his wife. Still, the discrimination between the married and unmarried women exists because of the non-criminalization of marital rape.

III. Utilitarian Perspective over Marital Rape

Bentham believed that two principles are commonly accepted under the philosophy of utilitarianism which are i) Suffering is evil and ii) Happiness is good.[12] The utilitarian perspective over every contestable issue can be drawn on the basis of these two principles. For a better understanding of the theory of utilitarianism the meaning of the phrase ‘the greatest happiness of the greatest number’ must be understood.

For Bentham, happiness is merely pleasure. However, Mill has rejected Bentham’s concept and explained happiness as maximization of eudaimonia or human flourishing.

A. Application of Utilitarianism on Marital Contract

The institution of marriage creates an imagination of goods and gains. The people who are married are better off than, then the unmarried people.[13] The institution of marriage provides maximum happiness to the maximum people. The people who are married have a higher life expectancy as compared to those who are unmarried.[14] Entering into the marital contract makes people better off. The researcher in this chapter is going to analyze the effects of the criminalization of marital rape from a utilitarian perspective.

The Criminalization of marital rape will destroy the institution of marriage and will reduce the maximum happiness of the maximum people. The criminalization of marital rape will imprison of the husband which may adversely affect the interests of every member of the family. Getting imprisoned reduces the happiness of the husbands and the after husbands getting imprisoned, the wives will have no source of income and subsequently, their happiness will also reduce. The children of such a person will also have to suffer for petty things for the whole life and it reduces their happiness as well. In case of huge prejudice caused to those children due to deficiency of resources, they may choose to indulge in criminal acts which will reduce the overall happiness of society.

Let us suppose that the happiness of the wives is less because of becoming the victims of rape by their own husbands but a huge majority of wives will still suffer after the criminalization of marital rape because the imprisonment to their husbands will leave no source of income to wives. In the case of non-criminalization of marital rape, only wives will not be happy but the happiness remains maximum for all other people. However, in the case of criminalization of marital rape, the happiness of the maximum people will reduce.

IV. Critique to Utilitarian Perspective

The equation of happiness under the utilitarian theory is not clear. Bentham equated happiness equivalent to pleasure. The equation of happiness proposed by Bentham was overruled by Mill as he equated happiness equivalent to human flourishing. The problem associated with utilitarian perspective is the ambiguity associated with the ways of measurement of happiness. However, modern utilitarian thinkers contended that everyone can roughly measure their own happiness and can also measure the benefits and loses monetary terms.

The ambiguity associated with the expression ‘maximising happiness’ under the utilitarian theories is associated with the lack of clarity as to the exact meaning of the expression. Either the maximising happiness should be considered as maximising total happiness or average happiness or any other happiness. The modern utilitarian thinkers respond to this by contending that the meaning of the expression maximising happiness is the average satisfaction and the average happiness which should be maximised in general.

Challenges: Application of Utilitarianism On Marital Contract

The theory of utilitarianism does not tell us about the good things about which a man cares about.[15] Simply equating happiness with the pleasure will not suffice for applying the utilitarian perspective on the marital contract and it will be difficult to analyze from the utilitarian perspective to recognize whether the marital rape should be criminalized or not.

Married people are better off than the unmarried people but it does not necessarily mean that people by entering into marital contract get better off.[16] In another way, a person who is not in a better condition or is unhealthy not gets married. And hence the presumption on the basis of which it can be said that the non-criminalization of marital brings maximum happiness to maximum people fails.  And it becomes difficult to say that because of the non-criminalization of marital rape, the maximum people are happy.

V. Conclusion and Suggestions

The author in this article has comparatively analyzed the issue of criminalization of marital rape from the Natural Law Perspective and the Utilitarian Perspective. The Natural Law philosopher Blackstone has developed a relation between the three relationships which are ‘master-servant’, ‘parent-child’ and ‘husband-wife’ wherein all the three relations, one is superior and has authority over the other. From where the right less status of the wife has emerged and on such basis it was considered that marital rape should not be criminalized. The Natural Law perspective over the criminalization of marital rape was highly criticized by 19th-century feminist thinkers.

Alternatively, the utilitarian perspective suggests the non-criminalization of marital rape on a different line of thinking. The utilitarian thinkers including Bentham and Mills suggested that the non-criminalization of marital rape brings maximum happiness to maximum people. However, the theory proposed by the Utilitarianism fails as several ambiguities are present with respect to the basic component of Utilitarianism. The concept that marriage makes people better off proposed by Utilitarianism becomes problematic when it is proposed and proved that the people who are better and healthy gets married and unhealthy people don’t get married.

On the basis of the Natural Law and Utilitarian perspectives, the conclusion is made by the author that marital rape should not be criminalized in light of the traditions and sentiments of the society. Such a conclusion is drawn because the study is restricted to only Natural Law and Utilitarian Perspective. However, the conclusion reach can be criticized by the feminist perspective based on the conception of marital rape drawn by various feminist philosophers including John Stuart Mill, Elizabeth Cady Stanton and William Thompson.


[1] R v R, [1991] UKHL 12.

[2] Report of the committee on amendments to criminal law, 2013.

[3] William Blackstone (1986) Blackstone’s Commentaries: Philadelphia Lippincott Co.

[4] Rebecca M. Ryan (1995) ‘The Sex Right: A Legal History of the Marital Rape Exemption’, Wiley: American Bar Foundation, 20 [Online]. Available at: https://www.jstor.org/stable/828736 (Accessed: November 2019).

[5] John Locke, 2 Two Treatises of Government, ed. P. Laslett (2d ed. Cambridge: Cambridge University Press, 1967).

[6] Lord Chief Justice Sir Matthew Hale (1778) The History of the Pleas of the Crown, edn. 1, London: Sollom Emlyn.

[7] Carole Pateman (1988) The Sexual Contract, Stanford, California: Stanford University Press.

[8] Elizabeth Cady Stanton (1989) Address to the New York State Legislature, The search for self sovereignty edn, New York: Greenwood Press.

[9] ibid 7.

[10] Indian Penal Code 1860, s 375 exception 2.

[11] Independent Thought vs Union of India, (2017) 10 SCC 800.

[12] Raanan Gillon (1985) ‘Utilitarianism’, British Medical Journal, 290, p. 1412 [Online]. Available at: https://www.jstor.org/stable/29519166 (Accessed: 7th November 2019).

[13] Anita Bernstein (2003) ‘For and against Marriage: A Revision’, Michigan Law Review, 102 [Online]. Available at: https://www.jstor.org/stable/3595381 (Accessed: 6th November 2019).

[14] Linda J. Waite and Maggie Gallagher, ‘The Case for marriage why married people are happier, healthier and better off financially’, 2000.

[15] Mary Gatherine Geach (2008) ‘Lying with the body’, Oxford Journals, pp. 531 [Online]. Available at: https://www.jstor.org/stable/27904097 (Accessed: November 8, 2019).

[16] Raanan Gillon (1985) ‘Utilitarianism’, British Medical Journal, 290, p. 1412 [Online]. Available at: https://www.jstor.org/stable/29519166 (Accessed: 7th November 2019).


  1. Analytical School of Jurisprudence(Opens in a new browser tab)
  2. Relation between Law and Morality(Opens in a new browser tab)