Marriage Does Not Equal Consent
As a law student working for a public agency for the summer, I have the opportunity to participate in some very interesting court cases. Recently, I watched a trial in which a husband was trying to claim that he didn’t do anything wrong when he made unwanted sexual advances toward his wife with whom he was going through a divorce at the time.
Essentially the argument his attorney was trying to make was that because they were married, the wife presumably consented to any sexual advance her husband made towards her. That what he was doing was normal for them when they were “intimate” and “making love.” Having listened to testimony from both the wife who repeatedly stated under oath that she did not consent to this touching and the husband who repeatedly proclaimed this to be normal for their relationship, I found myself repulsed by the idea that any spouse would claim that the fact they are married automatically presumes consent.
It’s the old “there’s no such thing as marital rape” argument long made in the law. Now, I’m sure many of you are not lawyers nor have you had any legal training. I can assure you though, that there is little to no case law to support this assertion. The defense attorney in this particular case I watched tried to pull statements from a case dating as far back as 1835. Let’s just say the judge wasn’t buying it at all thankfully.
Why does this argument repulse me in every way possible? To me, consent is an essential element in all sexual activity, regardless of the marital status of those engaging in it. Even in the world of dominant and submissive relationships, a world I frequently find myself in, does consent play an extremely important role. In d/s relationships, I feel it is the submissive that holds the power. It is they who consent to being in such a relationship. A healthy d/s relationship in my mind is one where the dominant understands that the submissive is consenting to be there and consents that the dominant be the one “in control.” An intelligent dominant knows that the submissive can stop any play at any time and withdraw consent.
In “vanilla” relationships, consent is just as important. Just because a couple may be married does not mean that the woman automatically consents to every sexual advance her husband may make towards her. To think anything else would be to relegate women to second class citizens and throw the feminist movement in reverse several decades. As society has come to recognize, a married woman is not her husband’s property. She has every legal right he does under the law, separate and distinct from him. While I don’t consider myself a strong feminist, in this matter I definitely am.
Do I think a man has to stop and ask for permission before every sexual advance he may make towards his wife? No. But at the same time it’s a matter of being smart. If a woman is saying no in any way, whether verbal or non verbal, she is not consenting. Don’t be a jerk or worse do something illegal and persist in your efforts to have intercourse with her when she doesn’t want it.
Bottom line is that rape is rape, whether married or not. Don’t ever forget to receive consent for your actions or you may find yourself in my courtroom one day, a place you don’t want to find yourself.
This article hits home on so many levels. My wife used to simply have sex with me at times to shut off my whining(I now know how unsexy whining is) and would compromise her desires and limits in silence because it was easier. While I was not respecting her at the time, I had no idea what I was doing. Unfortunatly the communication between us was not condusive to her having me understand my behavior. Evetually it came out and we know communicate and have mutual respect. My advice men if you can’t look your wife in the eye with love and talk about doing whatever take a step back and rethink it. Wives, if you can’t say no easily then seriously think about what may be wrong with the relationship. I’m not blaming the victim rather if the victim cannot stop an advance it is a strong indicator of problems in the relationship
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I have a few problems with this.
- The example given really doesn’t cover unwanted advances during marriage. You stated that the couple was going through a divorce. Anyone with a brain would err on the side of caution and assume if there’s divorce proceedings any prior consent is revoked. Obviously this guy wasn’t very intelligent, and probably deserves whatever he gets.
- I think it’s ridiculous to suggest that a spouse needs permission before touching their significant other each time the urge presents itself. There’s exceptions to every rule, but in a healthy, honest marriage I think suggesting such a thing is incredibly silly. No one is a mind reader, and it’s possible that you’ll make a sexual advance when your spouse isn’t in the mood. Normal married couples would say “No, not in the mood”. Obviously, that “no” is the end of it, and if it goes any further I’d have to agree it’s assault. Misunderstanding your spouses mood, and backing off when told to, isn’t “rape” (but oh we love to throw that word around at every opportunity these days).
And while we’re at it? If you’re capable of speaking, and aren’t interested in advances, open your mouth and say so. I completely disagree with non-verbal cues in almost all cases, because it is very subjective. Someone may not see the subtle eye roll, or misinterpret the dramatic sigh as an invitation. It’s not a game, and shouldn’t be left up to whether the other person in question can magically divine the meaning for your body language. I’ve yet to meet a sane human being that’s a mind reader.
- These posts, by the way they’re worded, seem to buy into the stereotype that all men want sex at all times. You seem very adamant that a husband not make any sexual advances towards his wife without consent, leaving it as if there could never be a problem in the other direction. The correct message to give is: Consent is required. Period. The sex of the people involved are irrelevant.
- I would agree that in a D/s relationship (meaning, specifically, “Dominant” and “submissive”) that the submissive is the one ultimately in control. Not all of us are in a D/s relationship. In my case, rayne is a slave. Her consent was obviously required prior to becoming my slave. However, that consent allowed me to make all life decisions for her. I no longer need consent from her, as it’s already been given.
I’m starting to wonder if I’m turning into a masochist. Heh.
I probably didn’t provide enough details from my example. She was clearly objecting both verbally and non-verbally and yet he persisted in his advances.
I agree with you about the dual edged sword between men and women. I work in a domestic violence courtroom and we see cases in which wives have abused husbands and husbands abused wives. I am very adamant in my view that violence is not gender-specific and can be directed towards anybody. This specific instance just happened to be man-on-woman violence.
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I don’t know, I didn’t get the same vibe from the article as Melen did. I don’t think anyone is really saying a man or a woman for that matter needs to ask permission before making an advance, but if it’s been made clear that the advance is unwanted then it should stop. period. End of story, married or not you still need consent to persue once the initial advance has been made.
I think that yes, if the wife says no then the husband should respect her and accept that but I would never consider it assault if it was someone I was planning to spend my life with. Dis-respect? Yes. Mis-communication? Yes. Assault or Rape? A big No. I don’t expect my husband to ask permission for every advance he makes, I don’t even expect him to stop every time I say no. I have even “assaulted” him myself MANY TIMES, if saying no makes it so! I do think that many women take advantage of this when they shouldn’t be…and it is usually why they end up living alone…and should stay that way.
Your story is a bit different with the divorce proceedings, in a case like that he probably shouldn’t be making any advances…. but I have read about a few where the a wife is complaining about waking up from being asleep to find her husband touching her – and considering charging him with sexual assault even though he stopped when she asked him to! I think it is utterly ridiculous and I feel very badly for any husband that has to deal with a wife like that. If someone considers that assault then they should not be married or sharing a bed with anyone.
Women these days seem to love throwing the victim card around, but a husband being charged with sexual assault or rape from his wife is the victim in my eyes unless it is an extreme case. Most of the time half of the “victims” story is exaggerated or a downright lie anyways. Do you know how many men are charged, convicted, and jailed for an assault that never happened? They are labelled for life and it is sickening.
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The problem with your comment is naivete and that’s maybe not a bad thing. I’m glad you haven’t had the experiences that would enable you to imagine the situation where you’d feel raped by your husband. Still, there are a lot of situations in which sex without explicit consent, even in marriage, constitutes as rape. What if you frequently use sleep aids and realized your husband had been having sex with you, while knocked out, for years?
Obviously, some couples have given consent to that sort of activity beforehand but you have to remember that a sleeping person cannot legally consent to sex, anyway. So even if a person doesn’t necessarily mind, it’s still legally rape.
Should women call “rape” for power? No. But is victim blaming ever the answer? No. I hope you are able to remain in that naive place. I should hate to think that anyone is ever in the situation where they’ve been raped but aren’t believed.
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I live in the South and hear of problems like this all the time. Women are used to being abused by their husbands around here. It’s easy to say they’re all stupid hicks that don’t know any better, but really, they DON’T. Many wives have taken their husbands to court for rape, but the olde-tyme judges and good-ole boys…they just don’t care. They can’t be bothered with the paperwork from such cases.
Most of the time, the women give up. You can see it in their eyes. These old, withered, ignorant women who just can’t win.
Thank you for writing this. It needed to be said that marriage does not equal consent.