Rape and dating violence
Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely recognized by law and society as a wrong and as a crime.It is recognized as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.Marital rape (or spousal rape) is the act of sexual intercourse with one's spouse without the spouse's consent.
Following this logic, if consent is not part of marriage, then it is not necessary for intercourse.
The autonomy of the wife is also often compromised in cultures where bride price is paid.
This view was described by Sir Matthew Hale (1609-1676) in History of the Pleas of the Crown, published posthumously in 1736, where 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"." Also, American and English law subscribed until the 20th century to the system of coverture, that is, a legal doctrine under which, upon marriage, a woman's legal rights were subsumed by those of her husband. 455 (1981), a United States Supreme Court case in which the Court held a Louisiana Head and Master law, which gave sole control of marital property to the husband, unconstitutional.
In the US, the wife's legal subordination to her husband was fully ended by the case of Kirchberg v. English common law also had a great impact on many legal systems of the world through colonialism. Marriage was traditionally understood as an institution where a husband had control over his wife's life; control over her sexuality was only a part of the greater control that he had in all other areas concerning her.
A husband's control over his wife's body could also be seen in the way adultery between a wife and another man was constructed; for example in 1707, English Lord Chief Justice John Holt described the act of a man having sexual relations with another man's wife as "the highest invasion of property".
For this reason, in many cultures there was a conflation between the crimes of rape and adultery, since both were seen and understood as a violation of the rights of the husband.
In some cultures, marriage is arranged for the purpose of creating access to procreation (Yllö, 2016).
In these situations, the parties do not necessarily consent to marriage (in the case of forced marriage) (Yllö, 2016).
This was illustrated most vividly by Sir Matthew Hale, (1609-1676), in his legal treatise Historia Placitorum Coronæ or History of the Pleas of the Crown (posthumously, 1736) where 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." Sir Matthew Hale's statement in History of the Pleas of the Crown did not cite any legal precedent though it likely relied on earlier standards.
In a case of Lord Audley's (1488-1544), for instance, his citation of the jurist Bracton (c. 1268) supports this rule, said to have derived from laws of King Æthelstan (r.
Rape as a crime was constructed as a property crime against a father or husband not as a crime against the woman's right to self-determination.