Conjugal obligation or rape?

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It is not customary to talk about sexual violence in marriage, because it is believed that such a problem does not exist – allegedly, marriage (or a relationship between partners) itself implies consent to sex. There are many misconceptions in society that sexual violence can only happen when the perpetrator and the victim are strangers, or even if they are, they are not in a relationship, and the rape is committed out of the blue. For example, it is dark time of day, the victim and the offender are outside their places of residence, where there is no one but them, the victim actively resists physically, and the offender inflicts physical injuries on her. Like in the movie “Irreversibility”. In it, a young girl returning from a party at night was brutally raped by a man in an underpass. At the same time, in the American series “Unbelievable”, the main character is raped by a stranger who breaks into her apartment. The girl informs the police about what she experienced, but is faced with the fact that her testimony is not believed, and the case itself is closed. That is, those who should have helped, traumatize the victim even more and turn away from her. The problem of sexual violence is shrouded in various prejudices, unrealistic ideas, stereotypes and ultimately myths that are deeply rooted in society. What’s more, victim blaming often happens – shifting the responsibility for committing violence to the victim instead of the offender, blaming the victim for what happened. Meanwhile, films mostly depict sexual violence by outsiders, and society perpetuates patriarchal narratives about sex in marriage as a “marital duty.” Such a situation takes sexual violence between spouses or partners “beyond the frame”, and society does not realize that such a problem exists. Does rape happen in a marriage or relationship? In the well-known American TV series “Big Little Lies”, one of the main characters, Celeste, is supposedly happily married, the couple is raising children, and they have harmony and mutual understanding. However, it later becomes clear that the woman is experiencing physical, psychological and sexual violence from her husband. Voluntariness and consent are replaced by “marital duty”, and aggression is equated with passion and temperament. Voluntariness is the main feature that allows you to establish whether there was violence or not. The absence of physical resistance, bruises, injuries, from the point of view of our national legislation, does not mean that the sexual act took place by mutual voluntary consent. So, if the victim felt the fear of violence, was afraid of manifestations of aggression or there were other circumstances that prevented her from saying “no” or expressing objection to sexual intercourse, then this means that there was sex without consent, that is, rape. According to the results of the OSCE study on the welfare and safety of women, 28% of women in Ukraine experience physical/sexual violence from their partners. And according to the World Health Organization, 35% of women worldwide suffer from sexual violence by an intimate partner. These data are not conclusive, as there is a high probability that a significant proportion of women do not seek help. And sometimes they don’t even realize that rape in marriage is even possible. Unfortunately, there are no official statistics on sexual violence in marriage in Ukraine, which makes it impossible to assess the real scale of the problem. Specialists of the Association of Women Lawyers of Ukraine “YurFem” submitted requests for statistics on articles related to rape and sexual violence. The Criminal Code of Ukraine provides for liability for rape committed between spouses/ex-spouses or with a person with whom the offender is not in an officially registered marriage, but is in a family or simply close relationship (Part 2 of Article 152 of the Criminal Code). In this case, the code provides for stricter liability for the offender compared to situations where the rape was committed by an outsider. And in response to the request, we received information that the law enforcement officers do not filter the number of proceedings by parts of the relevant articles (and in particular, the part that concerns rape in marriage). That is, it is still impossible to determine the number of such cases recorded by the police. And one more important point: although the national legislation establishes responsibility for rape in marriage, however, reviewing the judicial practice, I did not find any decisions on prosecution for this. At the same time, the legal aid line “YurFem: support”, which provides free legal and psychological assistance to victims of sexual violence, repeatedly received appeals about sexual violence in marriage. Women reported being forced to be intimate with their husbands against their will. Due to various factors, in particular, previous traumatic experience of physical violence, fear of male aggression in response to rejection, they kept silent about their reluctance to have sex. As part of working with such cases, the lawyers of “YurFem: support” are faced with the reluctance of law enforcement agencies to open criminal proceedings based on the fact of marital rape. Lawyers are forced to appeal this inaction of the investigators to the court. So what’s the bottom line? First, during rape, the victim may not physically resist, and there may be no physical injuries. The mere fact that a person did not resist sexual intercourse does not mean that he consented to sex. Secondly, rape can also occur in marriage (or relationships between partners), for which stricter liability is provided in comparison with the situation when the victim was raped by a stranger. Therefore, until society realizes these two aspects, and sex in marriage is not considered as always consensual, until then the approaches to the investigation of sexual violence, particularly in marriage or in relationships identical to family, will not change. And until we start talking about sexual violence in marriage or in a relationship, we will not be able to highlight the true extent of this problem, nor will we be able to change the way we investigate and prosecute abusers. Marta Zmysla, lawyer, coordinator of the legal aid line “YurFem: support”, especially for UP. Life Publications in the “View” section are not editorial articles and reflect exclusively the author’s point of view.

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