Marital rape law rejected due to family concerns

LAW:A LAW on marital rape was not introduced in 1981 partly because it was believed it might be an obstacle to the reconciliation of the couple, State papers show.

Under common law, a husband had always been immune from being charged with the rape of his wife.

A briefing note prepared for then minister of state at the department of justice Seán Doherty in advance of a Dáil debate on the Criminal Law (Rape) Act 1981 said the reason most usually advanced to justify the husband’s immunity was that the wife on marriage gives a general consent to intercourse with her husband, “so that the husband can never be regarded as having intercourse without her consent”.

“This reason can perhaps be regarded as anomalous in present-day circumstances,” it conceded.

It also mentioned a report from the Criminal Law Revision Committee in the UK, which examined the matter.

Though the UK group recommended the crime of marital rape be introduced, the view of a minority of the committee, who opposed its introduction, was emphasised. The minority had said if a husband had forced a wife to have sexual intercourse without her consent, the consequences for her and for any children could be grave.

“In many, probably most such cases a quarrel would be likely, followed a few days later by reconciliation. But if an angry wife could call in the police, who would have a duty to investigate her complaint with all that follows when rape is alleged, some of us consider there might be little chance of reconciliation,” the minority report had said.

An early draft of the minister’s speech to the Dáil was also included in the file.

It said marriage was a “very complex relationship” and the introduction of an offence of marital rape “could be very detrimental to the family”.

“I feel that the situation between husband and wife could be irretrievably damaged if it were possible for the wife, however unjustifiably, to allege rape which would require investigation by the gardaí,” the minister’s draft said.

Doubts were also expressed about how such an allegation could be proven.

Without corroborative evidence resulting from violence, it would be very difficult for a jury to be satisfied beyond reasonable doubt, it said. And if there was violence, legislation already existed to charge a husband with assault.

“I might add that I am not satisfied that women generally are suffering from a burning sense of injustice of the existence of the rule relating to the husband’s immunity,” the draft of the minister’s speech said.

The Criminal Law (Rape) Act 1981 came into force in June that year. Marital rape did not become a crime until January 1991 after the introduction of the Criminal Law (Rape) (Amendment) Act 1990.