Re-examining the Marital Rape Exemption

“The study of inequality” should be concerned with power at its extremities, in its ultimate destinations, with those points where it becomes capillary.”


The existence of marital exemption in today’s laws indicates an acceptance of the archaic power relations and the marriage contract as an entitlement to sex. In general, marital rape has been defined as the act of sexual intercourse by a man with his wife without obtaining her consent. This note first explains the origin of the marital exemption and then argues that the factors which justified marital exemption in past are not valid in today’s world. It then gives counter-arguments against the defenses taken by the State for not making it an offence.


The origin of the concept of marital exemption lies in the assumption that by marriage a woman gives irrevocable consent for her husband to have sex with her any time he asks for it. This view was described by Sir Matthew Hale (1609-1676) when he wrote that “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”.

Another principle which justifies marital rape has its roots in property rights. In the past, a father could trade his daughter’s virginity for economic or social gain from a prospective suitor. Husbands, too, had a property interest in their wives’ fidelity. In other words, women’s virginity has been considered as a property or a commodity. This implicates that a woman is considered as the property of the father first and then upon marriage, she is considered the property of her husband. Consequently, no legal basis existed to prosecute husbands for raping their own wives, since the husband infringed no man’s property rights.


The formulation of marital exemption by Hale was relevant at those times when marriage was the only case in which people were legally allowed to be sexually active. For most of the history of English common law, legitimate sexual activity was confined to marriage. Therefore, when the marital exemption developed, there were no legal intimate relationships besides those in marriage. Marital sexual relations comprised the whole category of legal intimate relations. Extra-marital sexual acts-whether consensual or nonconsensual-were proscribed by laws on adultery and fornication. So, it is important to incorporate the criminalization of these other sexual acts into the analysis. As Anne Coughlin argued, “we cannot understand rape law unless we study the doctrine, not in isolation, but in conjunction with the fornication and adultery prohibitions with which it formerly resided and, perhaps, continues to reside”.

Thus, where the non-marital sexual activity was illegal, the rape immunity used to protect the husbands against charges by women with whom only they could have been sexually active. So, it can be inferred that the rape immunity was not centrally about the formal status of marriage between husband and wife per se (except to the extent that marriage conferred legal authority for sexual activity), rather it was about the sexual activities between the parties. It would not be wrong to say that Hale’s ongoing consent theory also lends support to this view. Hale’s analysis reveals the centrality of sexual relations to the immunity. Hale described that “the wife hath given herself up in this kind unto her husband,” he was referring to giving “her body to her husband,” as he stated two sentences later. According to Hale, the marriage provided the never-ending consent to sexual. Hence men who had gained legal sexual access (through marriage) to women could not be charged with raping them and men who had not previously gained legal sexual access to women, by contrast, could be charged with the offence of rape. The law, therefore, protected men from being charged with sexually assaulting only those women with whom they could legally be sexually active.

It will be wrong to make that principle as a basis for giving marital exemption in today’s statutes because at that time only marriage could make legal intercourse. This is in contrast to the present time where there can be legal sexual intercourse between a man and a woman of age with consent.


It is pertinent here to quote Bertrand Russell who wrote “Marriage is for women the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution.”

Thus, ensuring that women have full autonomy over their bodies is the first crucial step towards achieving substantive equality between women and men. Personal issues—such as when, how, and with whom they choose to have sex, and when, how and with whom they choose to have children—are at the heart of living a life in dignity. Whether it is rape by a stranger or by a spouse, it is a grave violation of women’s rights. Until it is stopped, it will continue to be an expression of male domination and misogyny, a tool to terrorize and subordinate women.


  1. Fostering Marital Harmony and Intimacy. – The most compelling modern rationale behind the marital exemption is fostering marital harmony and intimacy by protecting the privacy of the marital relationship. This rationale, however, falsely assumes that all marriages are true to the ideal conception of the harmonious and intimate nature of marital relations. Rape itself disintegrates the marriage; a wife’s criminal complaint testifies to the absence of marital harmony and intimacy.
  2. Encouraging Reconciliation of Spouses – A second rationale advanced for the marital exemption is that of encouraging the reconciliation of the spouses. This rationale, however, also falls short under intermediate scrutiny. It is the violent act of rape and not the subsequent attempt of the wife to seek protection through the criminal justice system which ‘disrupts’ a marriage.
  3. Overcoming Evidentiary Difficulties – A third rationale addresses the evidentiary difficulties in proving a lack of consent in the prosecution of marital rape claims. This view, rooted in a fear that wives will threaten their husbands with fabricated rape claims to avenge personal wrongs or to extort large property settlements upon divorce, reflects a profoundly discriminatory attitude towards women. The element of consent in rape is always difficult to prove. Yet it has never been suggested that the criminal offense of “stranger rape” be eliminated due to the difficulties of proof posed by a consent standard. Besides, the evidentiary rationale ignores reality. There is no reason to believe that false charges of rape are brought more often than false charges of any other crime. In fact, women in general and wives in particular are deterred from bringing legitimate complaints of rape by the social stigma associated with such a charge.

Every law can be misused and therefore, if we accept the above argument, it would simply mean not having any law at all. Moreover, this cannot be taken as an excuse by the state to let the criminal scot-free.


The offence of rape is considered to be the most reprehensible of all offences, a deathless shame, and the gravest crime against human dignity. The consequences remain the same irrespective of the marital status of the woman. Besides, when this heinous offence is committed within the confines of the four walls of a matrimonial home, it downgrades the status of a woman from a human to a mere object for sexual gratification. The purpose of the legislature to protect women and punish those who engage in the inhumane activity of rape is frustrated by exempting husbands from punishment. The fear of false complaints cannot be a reason to proscribe protection to those who have been suffering in these abusive traps from years. In the Smith Case, it was pointed out that “it is hardly uncommon for our criminal justice system to deal with false and fabricated criminal charges. Indeed, our jurisprudence is designed to test the very truth or falsity of accusations in all criminal proceedings.” The evolution of a woman’s status from a chattel to a full-fledged person with rights and the responsibilities of the state to protect and uphold the same forces the legal system to rethink many of its platitudes and policies. The time has come to realize that no legal, political, or moral justifications exist to allow a man to use force to invade his wife’s bodily privacy. The law must embody this conclusion.




Akanksha is a first-year LL.B. student at Campus Law Centre, Faculty of Law, University of Delhi. She has a keen interest in Criminal Law and Law of Torts.

Ravi Singh Chhikara

Ravi Singh Chhikara

Ravi is a second-year LL.B. student at Campus Law Centre, Faculty of Law, University of Delhi. He has a keen interest in Criminal Law and Constitutional law. He has publications on diverse topics in the field of Gender issues, Contract laws, Policy-making etc.

One response to “Re-examining the Marital Rape Exemption”

  1. It then gives counter-arguments against the defenses taken by the State for not making it an offence.
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