Saturday, October 13, 2007

Why the marital rape exemption is senseless

I was prepared to leave this letter well alone until I read that the author is a philosophy tutor at NUS and this is an attempt to emulate the system of Aquinas in Summa Theologiae.

And better still I think this was one of the rare instances where everyone on the political spectrum in YoungRepublic condemned it, which is a remarkable show of unity and demonstrates how absurd his position is. But leaving aside the argument to popularity which might have been applied in the prior statement, here's why it's still fundamentally wrong in the first place.

I REFER to the article, 'Rape is rape, so husbands should not have immunity" by Dr Andy Ho (ST, Oct 2).

To remove bias, 'rape' here means only 'non-consensual sex', with no overtone.
With no overtone?! Sorry, the very fact that it is non-consensual makes it wrong. Unless you want to adopt the positions that facially a person's consent is not needed for acts done to him, this statement is latent non-sense (unsinn) in a Wittgenstein fashion i.e. it does not make sense insofar as one cannot imagine it to be falsifiable.

Dr Ho rebuts arguments for 'marital rape is not a crime'.

One: A woman's consent to marriage implies her lifelong consent to sex. Rebuttal: Lifelong consent becomes a 'legal fiction' when the husband turns into a violent stranger. Comment: The law makes no such exception, and no supporting argument is offered for this assertion.
One general comment. He presumes an A/Not A situation wherein rebuttal of Dr. Ho's positions means that his positions stands when in fact he bears the burden of demonstrating why the wife is not equally situated with non-married women with whom the rapist has sexual relations with and therefore the marital rape exemption might be justified despite an ostensible violation of the principle of the equal application of the law.

Two, maybe some believe that a woman's consent to marriage implies her lifelong consent to sex but I don't see a reason why this is the case. If so, then this entire comment is irrelevant. Why does marriage imply consent to sex anymore than it implies consent to say subjugation to the husband or the husband's dominion his hand in discipline? Marriage is a civil and legal institution (so if the Catholics allow for the annulment of marriage on the basis of non-consumation according to their religious beliefs, then so be it) and therefore all the wife consents to are the legal duties that are imposed by law. The common law has come a long way from saying that the wife has no legal personality (no standing before the law) because she is simply an extension of her husband. Since she is recognize to be her own legal person, it must be established why she somehow loses the right not to be raped by her husband as opposed to when she was not married to him.

Three, even if this was the basis of the law, Dr Ho's rebuttal stands.

Four, even if it did not, the interpretation of the letter writer is erroneous. One the matter of lifelong consent to sex, it would be more akin to the idea that the wife cannot withhold sex and still have the marriage stand NOT that the wife cannot withhold consent to sex.

Two: Marriage is a private intimacy, into which the law should thus not intrude. Rebuttal: Marriage as a private intimacy wrongly presumes the interests of husband and wife are aligned. Comment: Neither 'private' nor 'intimacy' presumes interests are aligned.
Nope, good try. The penal code (first drafted for India) is a very old piece of legislation and is a codification of the common law on criminal matters (with some exceptions like the right to self-defense where apparently the drafter's belief was that the natives were so submissive that there would not fight back even if attacked to death and therefore a right of private defense had to be added. Go figure). One of the ideas in the common law was that the wife was simply the extension of her husband and one of the rationales was that their interest were aligned.

Even if this were not true, it still misses the point of similarly situated for an equality of law analysis.

Three: Making marital rape a crime will poison reconciliation. Rebuttal: Marital rape already poisons reconciliation. Comment: Many marital rape victims do 'forgive and forget', and reconcile.
Battered Wife Syndrome. Go google it. They eventually crack and murder their husbands.

Also many don't, prosecution can still be done. Except that because we can't use the rape provision (which allows for sentences of up to 20 years), we have to get them on much lesser charges under use of force, causing hurt (max of a year unless grievous hurt is caused and the definition of grievous hurt is very exactly defined only to include stuff like emasculation, breaking of a limb, causing the person to be hospitalized for more than 30 days etc. which is not what rapes are about) or the stupid 377 provisions. The point to be emphasized is that the act of rape itself is the harm not the harm caused which tends not to be physical).

Four: Making marital rape a crime makes wives more likely to falsely accuse husbands. Rebuttal: England and Ireland have made marital rape a crime, without increasing false accusations. Comment: Dr Ho has a counter-example.
Actually, Dr Ho's point would have stood anyway since it would be the onus of those who advocate the marital rape exemption to prove that false accusations would be a serious problem or even a problem at all. The problem of prosecuting rape is not that of false convictions (although it might happen) but more so that of not being able to convict the rapist because of due process requirments in criminal law that (rightly in principle) make conviction hard. Should it boil down to a he-said-she-said situation, it is not going to be easy to convict on the basis of beyond a reasonable doubt. Add that to the situation of a marriage and in fact unless one puts in presumptions of non-consent, convictions are going to be very very difficult.

Dr Ho argues for 'marital rape should be a crime'.

One: Almost all aspects of women's legal subordination to men have been rejected. Comment: A traffic sign saying 'No entry - except ambulances' will insist on the exception.
There the exception can be justified. Here it cannot be. Therefore there are not analogous and the analogy does not stand.

Two: 'Rape is rape, so the marital rape exception should be completely erased.' Comment: The marital rape exception is built into the law. Insisting the exception be removed does not entail it should be.
The onus is on those wanting the marital rape exemption to justify why the woman once married is not similar situated to a woman who is not married when it comes to the application of rape laws.

Two, it is irrelevant that the exception is built into the law. Unless one commits the fallacy that the status quo is necessarily good, there is no merit to the point. Laws can be amended and repealled and that was the whole point of this exercise in the first place.

UNLESS he wants to argue that even the limited amendment to the marital rape exemption here was wrong? Good luck

Three: Marital rape harms the victim more than does stranger rape, which is a crime. Comment: First, harm may not be a sufficient reason here. Husbands also have duties to wives that strangers do not. Second, the alleged greater harms of betrayal, entrapment and isolation likely presume marital sex must be consensual, rendering the argument circular.
I will wrote the following brilliant response from a member of the YoungRepublic here
"He [the letter writer] also claimed to have found 'circular thinking':

1. Being raped by your husband is shittier than being raped by a stranger
2. But it is only shittier because there is some kind of meta-consent
insofar as he is your husband
3. But rape is a sexual act without consent therefore this is circular

When in fact it is:

1. Being raped by your husband is shittier than being raped by a stranger
because you trusted your husband to treat you with love and respect.

2. Being raped by your husband is therefore both a betrayal of the respect
he owes you as a woman AND as wife.

3. Therefore marital rape, far from being an exception to rape laws, should
be treated as a more heinous form of rape."

So yeah...whatever he said above.

Four: 'Why does the system then deny her what she considers to be in her best interest?' That is, if a wife considers it in her best interest that marital rape is a crime, then marital rape should be a crime. Comment: First, the law must consider the general interest, not that of just one party. Second, wives do not dictate the law.
The general interest is the protection of the individual from crimes, one of which is the protection of the individual from even simply being touched without consent, see here the tort of trespass to the person or what is in the vernacular called battery. Mind you this goes even further than people think it goes, even a simple touch is grounds for liability where there is no consent or implied consent to some de minimis touching when in public. So the consideration here is not that of one party.

Second, one can all too easily replace the word wife with victim to see how utterly fallacious the above is. We have a trial system for a reason.
In summary, we have a case for 'marital rape is not a crime', and none for 'marital rape should be a crime'.
In summary, what we have here is a perfect example of GIGO i.e. Garbage In Garbage Out. If your assumptions and premises are wrong, then you logical analysis will necessarily lead to garbage conclusions.


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