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18-Mar-2017 09:30

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.

The autonomy of the wife is also often compromised in cultures where bride price is paid.

Under customary law in certain parts of Africa, forced sex in marriage was not prohibited, although some specific circumstances, such as during advanced pregnancy, immediately after childbirth, during menstruation, or during mourning for a deceased close relative, were recognized as giving the wife the right to refuse sex.

Rape has been, until recent decades, understood as a crime against honor and reputation - not only in domestic legislation, but also in international law; for example according to the Article 27 of the Fourth Geneva Convention, "Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault". This can be seen in English common law, in force in North America and the British Commonwealth, where the very concept of marital rape was treated as an impossibility.

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.

Marital rape is often a chronic form of violence for the victim which takes place within abusive relations.

It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways.

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Still, in many countries, marital rape either remains outside the criminal law, or is illegal but widely tolerated.The reluctance to criminalize and prosecute marital rape has been attributed to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and to cultural expectations of subordination of a wife to her husband—views which continue to be common in many parts of the world.These views of marriage and sexuality started to be challenged in most Western countries from the 1960s and 70s especially by second-wave feminism, leading to an acknowledgment of the woman's right to self-determination (i.e., control) of all matters relating to her body, and the withdrawal of the exemption or defense of marital rape.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.