NCJ Number
55462
Date Published
1978
Length
6 pages
Annotation
CANADIAN LAW SHOULD CRIMINALIZE RAPE WHICH OCCURS WITHIN MARRIAGE AND CHANGE RAPE LAWS TO SEXUAL ASSAULT LAWS. DIFFICULTIES IN ENFORCING SEXUAL ASSAULT CHARGES WITHIN A MARRIAGE ARE EXAMINED.
Abstract
IN CANADA THE MARITAL EXCEPTION TO THE CRIME OF RAPE RENDERS SUCH SEXUAL ASSAULT LEGAL WHEN IT OCCURS BETWEEN SPOUSES. IN ENGLAND A WIFE WHO HAS OBTAINED A SEPARATION ORDER OR OTHER LEGAL RECOGNITION OF MARRIAGE BREAKDOWN MAY CHARGE A HUSBAND WITH RAPE, BUT IN CANADA A RAPE CHARGE CANNOT BE PRESSED UNTIL A DECREE OF ABSOLUTE DIVORCE IS OBTAINED. THE ORIGIN OF THIS MARITAL EXCEPTION IS TRACED. IT IS CONSIDERED A PERPETUATION OF THE STATUS OF THE WIFE AS A SUBORDINATE TO THE HUSBAND. CHANGING TIMES INDICATE THAT A CHANGE IN LAW IS NEEDED. IT IS RECOMMENDED THAT THE OFFENSE OF RAPE BE REMOVED FROM THE CANADIAN CRIMINAL CODE AND REPLACED BY A SEXUAL ASSAULT STATUTE. THIS STATUTE WOULD COVER ALL UNWANTED INTERCOURSE FOR BOTH MEN AND WOMEN AND WOULD EMPHASIZE THE ASSAULT ASPECT OF THE CRIME. THE OFFENSE SHOULD BE EXTENDED TO THE MARRIAGE SITUATION. THE PROBLEM OF VINDICTIVE SPOUSES FILING CHARGES IS ADDRESSED, AS IS THE PROBLEM OF PROOF. IT IS CONCLUDED THAT VINDICTIVENESS IS NOT A PROBLEM BUT PROOF IS. IT IS ARGUED, HOWEVER, THAT THE LAW SHOULD BE CHANGED AND THE PROBLEMS ADDRESSED AS THEY ARISE. IT IS ALSO ARGUED THAT CRIMINAL INTERVENTION IS NOT THE MOST APPROPRIATE RESPONSE TO INTERSPOUSAL SEXUAL ASSAULT. INSTEAD CIVIL ACTIONS, FAMILY COURT INTERVENTIONS, SOCIAL SERVICES INTERVENTIONS, AND SIMILAR SUPPORTIVE SERVICES ARE URGED WITH CRIMINAL SANCTIONS USED TO PROVIDE A SYMBOLIC VALUE STATEMENT. THE CRIMINAL LAW SHOULD BE A LAST RESORT ON A CONTINUUM OF RESOURCES. NOTES ARE APPENDED. (GLR)