This is a response article to Amartya Talukdar’s recent article, “Marital rape- a feminist tool to criminalize marriage in India“.

Note: AVfM frequently publishes views with which it disagrees, and publication of a given piece must not be interpreted as even tacit support for the arguments offered therein unless one of senior management (which includes myself) say otherwise. This article, however, is an AVfM editorial.

The core thesis of Talukdar’s article is that the notion of marital rape is a contradiction in terms on the ground that marriage is irrevocable, explicit and on-going consent to sex.

I disagree and, further, I think that this position is incompatible with the values and moral basis of the Men’s Human Rights Movement. Here’s why.

Definitions

Since frequently arguments of this nature revolve around the meanings of words I will spell out what I understand these core concepts to be and the meaning with which I use these core words, just like a contract would.

Rape is the crime of sexual intercourse without consent. There are subtle definitional differences in each western and first world jurisdiction (and many others besides) — in many instances, for example, the legal definition makes it nearly impossible for a woman to be guilty of the crime solely by virtue of her physiology — but all of them share that core principle.

Marriage is a legal, civil and social concept that binds two people together, much in the same way a contract does and, like a contract, obligates one to the other in various ways until the contract is legally dissolved. For some people, marriage entails additional meaning, but I am explicitly excluding any meaning born out of personal conviction (more on this later).

Precisely what those obligations are vary from jurisdiction to jurisdiction. For example, according to Talukdar:

A woman in India has a right to maintenance even when husband is sick, and incapable of earning or is unemployed. He is duty bound to pay his wife alimony even after divorce. The Indian Courts have held that a man must “beg, borrow or steal” but he must maintain his wife.

In contrast, western definitions of marriage include provisions for alimony and division of marital assets after divorce, but I’m not aware that there is (now) any explicit obligation to provide for maintenance during marriage (the assumption being that, in cohabitation and in providing for himself, he provides for his wife also). There once was, but the legal doctrine of Courverture has long since been abolished.

Principle and practice

There is an important legal principle relevant to this discussion: Nullum crimen, nulla poena sine praevia lege poenali — “There exists no crime and therefore no punishment without pre-existing applicable criminal law” or, more simply put, “everything which is not forbidden is allowed”. This is important because it codifies the primacy of liberty, but also the prerogative of law to curb liberty. In other words, if there is a law against an act, then that act is illegal unless another law provides for an exception.

So, we have an explicit law that criminalises rape and, to my knowledge (though I am no legal scholar), there is no explicit legal obligation, by either spouse, to submit to sexual intercourse — at least, not in any western jurisdiction I know of. Whether there is such an explicit provision in Indian law, I cannot say.

On the face of it, therefore, the law requires that, even within marriage, sex requires consent from both spouses or it is a crime .

The complicating factor, however, is interpretation. What is “consent”, legally speaking? Though it shouldn’t be the case, it is a fact that judicial interpretation of legislation is subject to social mores. Once, when marriage was more than a civil, contractual matter, judges frequently understood marriage to imply consent to sex, even if such consent was never codified in the black-letter of the law, and would therefore not convict a man of rape who forced himself on his wife. Talukdar hinted at this when he cited Hale:

The noted English jurist, Sir Matthew Hale, stated the position of the common law in The History of the Pleas of the Crown (1736) that a husband cannot be guilty of the rape of his wife because the wife “hath given up herself in this kind to her husband, which she cannot retract”.

It should be noted that Historia Placitorum Coronæ (the original title of Hale’s treatise) is a chronicle, a contemporary description of facts and events as they were understood at the time; such works were and are not law and have no judicial authority (then or now), and can be nothing more than of historical interest.

It should also be noted that Historia was written in 1736, and that both the law and social mores change over time. Once, slavery was lawful and only landed people (which included women, by the way) had the right to vote. If defences of such law offered before slavery was abolished have no moral relevance in the 21st Century, then Hale’s nearly 280-year-old interpretation of marital consent is of questionable relevance today.

While on the subject of other jurists Talukdar quoted, I think he misunderstood William Blackstone’s remarks (he who gave us Blackstone’s Formulation):

The great jurist Sir William Blackstone wrote in “Commentaries on the Laws of England” that “Consensus, non concubitus, facit nuptias” [“Consent, not cohabitation, makes the marriage”]. Hence consent for sex is implied when a man and woman get married.

Blackstone wasn’t saying that marriage implies consent, he was saying the complete opposite: that the appearance and trappings of marriage (e.g. cohabitation) do not mean one truly is married, but rather only consent proves that the marriage is real. In other words, marriage is the consequence of consent, not the source of consent.

Sometimes, the legislature is moved to direct judges’ interpretation and remove all doubt by passing legislation. This happened in respect of marital rape throughout most of the western and first world countries mostly in the decades either side of 1980 (but some earlier, and some later still). It was outlawed in Sweden, Norway, Canada, New Zealand, Austria and Ireland in 1965, 1971, 1983, 1985, 1989 and 1990 respectively and all of Australia, the United States and the United Kingdom by 1993.

Israel’s judiciary (as opposed to legislature) outlawed marital rape in 1980, but what makes that case interesting is that the decision was based on and cited the Talmud, which dates back to at least the 6th Century CE!

Personal conviction versus law of the land

For some, marriage is a palpable evil (a view shared by certain MGTOW with certain radical feminists as cited by Talukdar). For others, it is little more than a formality done because it has always been done; for still others, it is a public declaration of mutual and exclusive commitment and for yet others still, marriage is a spiritual matter and a sacred institution.

I know for a fact that not everybody shares my thesis that marriage does not imply consent to sex but, so far as I can see, those who have disagreed with me in private do so out of personal conviction concerning those additional, special meanings they personally assign to marriage, rather than on any basis or principle of law.

I appeal to those for whom marriage has a special meaning, and especially those who are disinclined to impose their personal convictions on others, to keep that distinction clear in their minds: it is their freedom to include in their own marriage implied, on-going consent to sex if personal belief so moves them — because they choose to, which necessarily requires that others can choose not to.

Put in other terms, having the option puts everybody on an equal footing without regard to personal belief (which is a poor basis for making law).

The law is an ass (and why I think marriage does not imply consent)

All that is legal is not necessarily moral (e.g. much of what led up to the 2007 financial crisis), and all that is moral is not necessarily legal (e.g. format-shifting CDs you have paid for to your iPod. Yeah, until recently, that was technically illegal in the UK).

Much of what we do, as Men’s Human Rights Activists, is to challenge unjust laws and lobby for their change. But first, we have to figure out what changes we want, why and on what basis to argue for the change. Talukdar identified the change (or rather, the preservation) of law he’d like to see, but the only contemporary justification (since, as I demonstrated above, and as Pastor Phil Snider of Brentwood Christian Church demonstrated in his speech before Springfield City Council, MO — you have to watch the whole of that short video to get the point — historical justifications count for little); the only contemporary justification for his point of view that he offered seemed to lie in the following:

Rights come with duties. A woman in India has a right to maintenance even when husband is sick, and incapable of earning or is unemployed. He is duty bound to pay his wife alimony even after divorce. The Indian Courts have held that a man must “beg, borrow or steal” but he must maintain his wife. Then why shouldn’t a man have right to have coitus with his wife if he is duty bound to maintain her?

There’s something to that, insofaras Talukdar quite reasonably questions what rights the man has in return for the obligation to support and maintain his wife. But, the point could equally be used to argue for abolition of the man’s obligation to maintain his wife as much as to argue that his wife owes him sex in exchange for that obligation.



But how shall MHRAs come to a principled view on conjugal relations in law — the legal basis on which the courts will judge allegations of rape by husbands of their wives?

Every aspect of our activism is underpinned by two, basic principles:

That men deserve protection under the law equal to women, and

that men’s liberty, agency and autonomy, both bodily and financial, are not negotiable and are as inviolable as those of women.

A concrete example that embodies both is circumcision. Baby girls have the legal right to bodily integrity from birth where boys do not.

But that equality principle cuts (pardon me) both ways and what’s good for the gander is good for the goose.

Since we, as MHRAs, demand that willing sex is not consent to parenthood, and that marriage is not open and on-going consent to access to a man’s wallet, how can any MHRA support the proposition that marriage is open and on-going consent to sex regardless of whether the other spouse wants it?

Put in other words, if we demand bodily autonomy and integrity for men, women must necessarily enjoy the same right. In this case, that means the right to say ‘no’ to sex, even in the context of marriage. Some (of either sex) might choose never to say ‘no’ because of what marriage means to them, but at least they have that choice to make freely, and of their own will.

Moral relativism

I am not a moral relativist, which is to say that I think that morality transcends culture and that therefore, what is adjudged morally wrong in one culture — to the extent that I think anybody has any business prescribing moral strictures for others — is almost certainly not moral in others. If that sounds arrogant of me, then let me provide a two examples followed by two counter examples:

Murder and theft are mala in se — wrong in and of themselves — because they are detrimental to society.

— wrong in and of themselves — because they are detrimental to society. We forbid genital cutting of girls in the West (including by those from other cultures living in the West) because it is detrimental to individuals and a violation of their bodily integrity.

I do not see how cultural background is a relevant factor in either of these cases. The two counter examples:

Sex out of wedlock and choice of gender of sexual partner are questions of what two consenting adults choose to do in private. For as long as those adults take responsibility for the consequences of their actions, it is nobody else’s business.

Substance use is a matter of personal choice that affects only the user and therefore is nobody else’s business, unless use becomes excessive and leads to antisocial behaviour such as theft (to maintain the habit), violence or neglect of the user’s obligations (e.g. employment or dependent children).

One problem with moral absolutism is that because all the rules that apply in one culture don’t necessarily apply in another, certain moral codes might be justified in one place but not another, therefore making pan-cultural statements about morality is a sticky proposition at best.

In this instance, who will provide for the vulnerable of India, some of whom are women and children, if not their husbands or the state (by way of social security good enough to provide for basic housing and nutritional requirements)?

I don’t know the answer to that, therefore I don’t feel comfortable passing moral judgement on an Indian husband’s legal obligation to maintain his wife, even if I do feel comfortable in saying that that is a shitty deal for the husband.

At the same time, I feel quite comfortable in saying that rape is a malum in se — a wrong, in and of itself — anywhere and everywhere in the world, and that, by our own standards (as MHRAs), marriage cannot be on-going consent to anything (including sex) and that, therefore, there is no entitlement to sex inherent in marriage.

So to return to Talukdar’s article and answer some of his questions; if—

A woman who does not want to have sex with her husband should separate from him and file for divorce.

then, presumably, he has the same freedom to divorce and find a wife who will consent to sex or, if he can’t—

What should a man do if he is regularly denied sex by his wife? Should he masturbate, visit brothels or should be commit adultery?

then, frankly, yes; if extramarital sex is a sin, then better to sin with a willing partner than to sin with an unwilling partner (and using the services of a prostitute is probably a lot cheaper, from the man’s point of view, than an on-going obligation to maintain a wife and children).

It can quite reasonably be argued that marital rape laws add a few grains to the gun in the room, particularly in divorce proceedings — they do — but I’d say that’s about all they do. Rape is still illegal, whether within marriage or not. Accusations of rape add to the already numerous risks inherent in marriage (and men would do well to consider all of them, including potential maintenance obligations, before deciding to marry) but they cannot outweigh the right of any individual to self-autonomy, and certain rights cannot be contracted out of, even by marriage.

Sex without consent is rape. Nobody has the right to sex, even if most have the desire for it. Part of being an adult who takes responsibility for him- or herself is to recognise the difference between needs and wants (c.f. Maslow’s Hierarchy of Needs), and to arrange their own affairs such that their needs are taken care of first, and that they are able to fulfill their wants to the extent they are capable — but without any sense of entitlement from anybody else.