Eugene Volokh is a fairly well-known legal blogger, and an intelligent guy I enjoy reading from time to time. When it comes to sexual politics he’s pretty moderate as far as today’s attitudes are concerned. However, the contemporary understanding of the terms “rape” and “marriage” are radical departures from anything the world has ever known up to the last forty-odd years, so the term moderate must be kept in its proper context.
In his latest piece he condemns Muslims for refusing to accept that there is such a thing as marital rape.
The problem with this is that the contemporary, Western understanding of rape is not the historical standard. Some of Volokh’s commenters bring up Jewish and Christian views on marriage, including some who blame the fact that marital rape did not exist as a concept in the West until very recently on Christianity, as though before the emergence of those bad old patriarchal religions good people all agreed that a woman’s consent prior to each sexual act was required to prevent the commission of a heinous crime.
This is ridiculous. Prior to the advent of these religions, and Christianity in particular, women were the property of men in their family, and the crime of rape was generally held to be a violation of a man’s property. In Roman law, a man could be executed for rape even if the woman had consented, because he had violated the honor of her family. In the Torah, the punishment for despoiling a maiden required payment to the father and subsequent marriage. Raping another man’s wife has been almost universally held to be a grave crime, usually punishable by death.
However, the idea that the legal definition of rape ever had anything to do with whether a woman wanted sex or not at the time is a very recent innovation, which arose largely out of Christian societies, and was based on the idea of redemption, i.e. a fallen woman such as a prostitute could be redeemed through confession and dedication to Christ, and her spiritual maidenhood thereby restored. In fact, as we see with Roman law rape and fornication were interchangeable, and punishment of the male transgessor was to avenge the woman’s closest male relative.
Although it may seem humane and right on the face of it to call sex by force within marriage rape and punish it accordingly, the logical conclusion of this is to invalidate the religious concept of marriage, and indeed almost all traditional concepts of marriage. So while it may be “progressive” to put the crime of marital rape on the books, a better and more honest solution would be to eliminate marriage altogether from our law, and classify all sex crimes as sexual assault rather than rape, since the very concept of rape itself is outdated and inextricably tied up with religious attitudes concerning marriage and ecclesiastical law.
The imam who said there can be no such thing as marital rape is only speaking honestly about his beliefs. If he said and felt otherwise he would be committing heresy, or even apostasy.
It is time we truly separated church and state: it is time to eliminate marriage from all state and federal law and leave such arrangements up to the various faiths and cultures to define it as they always have.
And lest anyone suggest that this will encourage Muslim and Christian men to force sex on their wives, all we would have to do to prevent that is enforce criminal codes concerning sexual assault, but at the same time allow the various faiths to make adjustments, such as giving husbands recourse to easy divorce and compensation for neglect under their own religious arrangements. For example, religious marriage contracts could stipulate trust funds of some sort (e.g. dowries), payable to a husband forced to divorce a wife for frigidity, so that he could more easily find another with more dedication to the faith. Rather than force sex on the woman, he would have a financial incentive to turn her loose, which would surely prevent a great deal of marital friction and make many women happy and free to live a godless life.
As it is, the state is playing the surrogate of the church in defining marriage, and in America that is not only unacceptable, but unconstitutional as well.