Keith Mack
Marital rape laws have been enacted in many countries since the 1970s, when women's rights groups initiated the anti-rape movement, demanding sexual autonomy over their bodies, including within marriage. In Canada, marital rape was made illegal in 1983, when the rape provisions in Canada's Criminal Code were overhauled, and the term 'rape' was replaced with 'sexual assault'. This change meant that a husband could be charged with raping his wife, and spousal sexual assault became an offense.
| Characteristics | Values |
|---|---|
| Year of enactment | 1983 |
| Previous situation | Rape was considered an offence outside of marriage. A husband could not be charged with raping his wife. |
| Changes | The term rape was removed from the law and replaced with the language of sexual assault. It became a crime for a man to rape his wife. |
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What You'll Learn
The law changed in 1983
The change in the law was a direct result of these campaigns, and it was a huge step forward for women's equality in Canada. The new legislation made it a crime for a man to rape his wife, and it was no longer legally acceptable for a husband to use force to have sex with his wife. The term 'rape' was removed from the law and replaced with the language of 'sexual assault'.
While this was a huge victory, it did not mean that the issue of marital rape was immediately resolved. Women in abusive marriages often do not report this aspect of their abuse to the police due to shame, fear of not being believed, and a desire to protect their husband and save their marriage. There is also the societal attitude that a marriage contract requires a wife to provide sex when her husband wants it. Despite these challenges, the law change was a crucial step in recognising women's rights to bodily autonomy and consent.
The law of sexual assault has continued to be refined since 1983, with the Supreme Court of Canada setting precedents and refining the legal approach to consent. This includes the requirement of active, express, and ongoing consent, meaning consent given once does not imply consent for all future instances. While there is still work to be done, the law change in 1983 was a pivotal moment in recognising and protecting women's rights in Canada.
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Women's equality rights
Prior to 1983, rape within the context of marriage was not considered a criminal offence in Canada. Women's rights to vote, work, and serve in parliament did not extend to protection from sexual assault by their husbands. This discrepancy highlighted the inequality inherent in the system, where societal attitudes and legal loopholes enabled abuse and hindered reporting. The reform in 1983 addressed this by removing the term 'rape' and replacing it with 'sexual assault', making it explicit that spousal sexual assault was a punishable crime.
The push for this legislative change was driven by women's rights groups and activists who demanded sexual autonomy and an end to violence against women. The United Nations High Commissioner for Human Rights further bolstered these efforts in 1993 by declaring marital rape a human rights violation. These collective actions brought attention to the issue and pressured governments to take action, resulting in the criminalisation of marital rape in approximately 150 countries as of 2019.
Despite these legal advancements, challenges remain in the form of societal norms, lack of awareness, and varying cultural perceptions of marriage and consent. For instance, traditional marriage contracts are often associated with expectations of sexual availability, hindering women from reporting abuse. Additionally, as seen in the case of Justice Smith in Canada, there is still a need to address pervasive rape myths and ensure a clear understanding of consent in legal interpretations.
To further advance women's equality rights, it is essential to address these remaining challenges. This includes continuing to raise awareness about marital rape laws, challenging societal norms that enable abuse, and ensuring a consistent understanding of consent in legal interpretations. By doing so, we can work towards a future where women are truly equal and free from sexual violence, with their rights recognised, respected, and protected under the law.
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The term 'rape' was removed
In 1983, Canada's Criminal Code underwent a significant overhaul with regards to rape provisions. This change in legislation was a result of women's rights groups initiating the anti-rape movement, demanding sexual autonomy over their own bodies, including within marriage.
One of the key changes was the removal of the term 'rape' from the law, which was replaced with the language of 'sexual assault'. This change in terminology was significant as it made a clear statement that rape within marriage was a crime. The new language also reflected a shift in focus towards the concept of consent, which required active, express, and ongoing consent. This meant that consent given once did not imply consent for all future instances.
However, the disappearance of the term 'rape' from the criminal code and media reports of charges had a detrimental effect as well. 'Rape' had been a major rallying cry for the women's movement, and its removal from public and official language was seen by some as a setback, burying the issue out of sight.
Prior to 1983, rape was considered an offence outside of marriage, and a husband could not be charged with raping his wife. Women's rights to vote and work existed, but their rights concerning sexual assault were limited. Wives could only charge their spouses with indecent assault, common assault, or assault causing bodily harm.
The changes in 1983 were a significant step forward in recognising women's rights and providing legal protection against sexual assault within marriage. However, the removal of the term 'rape' from the criminal code had both positive and negative consequences in the ongoing fight for women's rights and safety.
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Sexual assault definition
In 1983, Canada's Criminal Code underwent significant changes, including the criminalisation of spousal rape. Prior to this, rape was considered an offence outside of marriage, and a husband could not be charged with raping his wife.
Sexual assault in Canada is defined as any unwanted sexual activity, including rape, sexual grabbing, kissing, and fondling. It is an assault committed in circumstances of a sexual nature, violating the sexual integrity of the victim. Consent is a key aspect of the definition, with sexual activity only being legal when both parties consent. Consent must be voluntarily given and can be communicated through words or conduct. Silence or passivity does not imply consent.
Canada's definition of sexual assault is broad and covers a range of offences, including incest, anal intercourse, and voyeurism. The severity of the assault determines the level of sexual assault charge, with Level 1 involving minor or no physical injuries, and higher levels involving the use of weapons, threats, or causing severe harm to the victim.
The law of consent in sexual assault cases is clear; only 'yes' means 'yes'. Consent cannot be assumed based on an individual's past sexual behaviour or their previous consent to sexual activity with the same person. The responsibility for ensuring consent lies with the person initiating the sexual activity, and consent cannot be given in advance for future instances of sexual activity, especially when the individual will be unconscious or will suffer bodily harm.
The legal approach to consent requires active, express, and ongoing consent. This means that consent given at one time does not imply consent for future instances. The law focuses on the thoughts and feelings of the individual at the time of the sexual activity, and societal attitudes or beliefs about the marriage contract do not override the requirement for consent.
Impact of the 1983 Law Change
The change in the law regarding spousal rape in Canada was a significant step towards recognising women's rights and equality. However, there is still criticism that the term 'rape' was removed from the criminal code, impacting the public perception and understanding of the issue. Additionally, despite the legal changes, women in abusive marriages continue to face challenges in reporting spousal rape due to shame, fear of disbelief, and a desire to protect their marriage or spouse.
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Women's groups brought attention
Women's rights groups have played a pivotal role in bringing attention to marital rape and demanding change. In Canada, the issue of violence against women, including spousal rape, was raised in the House of Commons in 1982 by NDP MP Margaret Mitchell. Despite being laughed at by MPs, the outcry from women's groups brought much-needed attention to the issue.
The efforts of women's rights groups in the 1970s and onwards were instrumental in challenging societal attitudes and legal exemptions surrounding marital rape. They advocated for women's sexual autonomy within marriage, arguing that spousal rape should be recognised as a violation of human rights. The anti-rape movement, driven by women's groups, led to legislative changes and a shift in societal perceptions.
In the United States, for example, the case of Oregon v. Rideout in 1978, although resulting in the husband's acquittal, spurred the movement towards reform. By 1993, due to two decades of activism by women's rights groups and court rulings, all 50 states recognised marital rape as a crime. However, the laws were not uniform, and some states, like South Carolina, continued to treat marital and non-marital rape differently.
The #MeToo era has also brought renewed attention to legislative attempts to modify or eliminate exemptions for spouses in marital rape cases, especially when the partner is drugged, unconscious, or otherwise incapacitated. Women like Jenny Teeson, who went public with her story of marital rape and invasion of privacy, have further driven the conversation and pushed for legal reforms.
The work of women's groups has been essential in bringing about legal and societal change regarding marital rape. Their efforts have resulted in increased recognition of women's rights to sexual autonomy and the criminalisation of spousal rape in many parts of the world.
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Frequently asked questions
Marital rape was made illegal in Canada in 1983.
The rape provisions in Canada's Criminal Code were given a significant overhaul. The term "rape" was removed from the law and replaced with the language of sexual assault, and it became a crime for a man to rape his wife.
Women had the right to vote, work, serve in parliament, and access contraceptives. However, when it came to sexual assault, their rights were limited. Before 1983, rape was considered an offence outside of marriage, meaning a husband could not be charged with raping his wife.
