NCJ Number
69841
Date Published
1979
Length
83 pages
Annotation
The history of German legal provisions regarding penalties for spouse rape, the pros and cons in the discussion of new laws to protect wives, and concrete law reform recommendations are outlined.
Abstract
For centuries wives were regarded as the property of their husbands; the concept of rape in marriage was unthinkable because husbands could do as they wished with their own property. After the French Revolution, however, wives were released from the obligation to submit to forcible, unnatural satisfaction of lust, with emphasis on moralistic values rather than on force, and this became the predominant position in the 19th and 20th centuries. Not until 1965 was the argument forwarded that an absolute obligation of wives to sexual relations is not in keeping with modern views of women's rights. Despite vigorous discussion, the movement favoring penalization of rape in marriage has been successfully opposed. A brief review of the international legal situation shows a gradual tendency toward penalizing rape in marriage starting in Eastern European communist countries and spreading after the Second World War to Western Europe. Arguments against penalties for rape in marriage hold that the absence of a penalty is legally justified, and that penalization entails more disadvantages than advantages by endangering the family and the institution of marriage and encouraging blackmail and false charges. It is further argued that changing the law would not be cost-effective or effectual, that rape in marriage is rare, that husbands would rarely be reported or convicted, and that existing penalties suffice, and that wives can always seek divorce. Moreover, penalization would create unnecessary work for the justice department, other provisions of the criminal code would have to be altered, and there would be great evidentiary problems, with the sharp definition of rape becoming unclear. Arguments in favor of penalization maintain that lawgivers are obligated to uphold human dignity, that existing definitions of marriage are inadequate, that the internal logic of the fourth criminal code reform demands penalization, that penalization would stabilize marriage and prevent long term damage to families, and that elimination of patriarchal privileges is inevitable. Recommendations call for specific changes in laws, flexibility of penalties in specific cases, early questioning of wives to avoid blackmail, a 3-month time limit on reporting, the possibility of excluding the public from proceedings at the request of involved parties, and a specific provision to protect divorced wives from incursions of former husbands. Notes are supplied. --in German.