Margaret Creear: No immunity

[Militant International Review, No 47, 1992, p. 26-30]

Margaret Creear examines the questions raised by the January report of the Law Commission, which reversed a 250-year-old ruling on marital immunity for rape.

In 1917 the new Soviet government in the USSR abolished marital immunity for rape. This was part of wholesale changes made in the law which ended legal discrimination against women in general, and wives in particular, which had been based on Russia’s feudal laws. In 1991 the British state decided to review the situation. In doing so they were bending to the overwhelming pressure in society to oppose discrimination against and abusive treatment of women. This pressure is based on the growing confidence and relative independence of women themselves, especially younger working-class women. Women going out to work in larger numbers will no longer tolerate the second class status and outrageous discrimination experienced in the past. In spite of the recession, women have maintained themselves as almost half the workforce, even though their wages and conditions have come under further attack.

In the past when women were a much smaller proportion of the workforce, such discrimination was easier to maintain. Even so, it was challenged wherever women were drawn into industry, such as in the textile industry. where women’s demands were often incorporated into the programme of the early labour movement. However, most women left paid work when they became wives. They became economically dependent on their husbands and were to a large extent isolated in their homes, bowed down with the responsibilities of child birth and rearing and domestic drudgery.

What went on ‚behind closed doors‘ was only the individual family’s business – a completely personal and private matter. The state and the ruling-class relied very heavily on the economic dependence of non-workers – women, children, the elderly and the sick – on individual men rather than on public finances. This is something they are trying to reinforce at the moment with the new legislation on single parents and maintenance, The Tory government try to give the impression this is being carried out to alleviate the poverty in which single parents live. But any maintenance is deducted pound for pound out of the income support of single parents, and after £15, for family credit recipients. In other words, the main beneficiary of the maintenance collected will be the treasury. Most single parents will be no better off than before.

Apart from the economic role the family has played, the state has always portrayed it as, and encouraged it to be, a unit of authority vested traditionally in the father. Children are brought up to do as they are told, backed up by physical force where necessary. This system of authority was backed up by religion and enshrined in law.

The recent abortion controversy in Ireland underlined the concept of a woman as a vessel for the production of children, with no separate existence. A 14-year-old was raped. became pregnant, and then effectively had her passport withdrawn to prevent her from having an abortion in Britain. She had no more rights than those of the ‚unborn‘, Such traditional ideas, which relegate women to a biological function, treating them as an object or a means to an end for someone else, were once much more openly stated than they are today in most advanced industrialised countries. But they still influence behaviour and attitudes towards women.

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Male authority in the family was written into British law. It was not until the mid-nineteenth century that this was seriously challenged. The Married Women’s Property Act of 1895 made conviction for assault grounds for divorce, along with custody of the children and maintenance from the husband’s family. In 1891 the legal right of a husband to force his wife to live with him against her will, by locking her in the home, was removed.

But it was very difficult for working-class women to take advantage of the laws, due to cost and due to their total economic dependence on men. It was not until some women were drawn out to work and could to some degree maintain themselves financially – along with the struggle of the labour movement for better wages, municipal housing and the various provisions of the welfare state – that working-class women could realistically consider divorce.

The drawing out to work of women has had a very important and now deeply rooted effect on working-class women in particular. Isolated from other women, in your own home. with the propaganda about how to create a happy marriage putting all the responsibility on the shoulders of women, it is quite possible to believe that anything which goes wrong – your husband losing his temper or criticising the housework, your children ‚going off the rails‘, your inability to cope on low wages – is all your own fault. It must be something you have done. Women can feel a paralysing guilt or make enormous efforts to adapt their behaviour – spend their lives ‚treading on egg shells‘, as many describe it. Usually this is to no avail.

However, when you go to work and start to talk to other women – especially when an event such as Sara Thornton’s hunger strike is in the papers – then it becomes clear that what you thought was a personal, private matter is actually experienced by many if not the majority of women. In other words it becomes a social issue, for which a solution has to be found not by adapting the behaviour of individual women, but through government policy. Inevitably, women workers begin to look to their trade unions and/or campaigns such as that on domestic violence.

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The first response of the state to such shifts in social attitudes is to change the law. After all, it costs nothing, Such legal changes on social issues. whilst raising further the confidence of women to make more demands, are not seen as so fundamental to the capitalists as, for example, the restrictions they have placed on the trade unions, which give them an advantage in the class struggle.

But it is ironic that capitalism is making these concessions because of women’s growing confidence at a time when their own system is yet again in recession. One of the effects of this situation is that, whilst passing legislation which should enable women to defend themselves from violence and escape violent relationships, the Tory government is enacting other legislation – such as that on maintenance – and pursuing other policies – such as cuts in social services and council housing – which will make it more difficult for working-class women to leave. In the past, British law, and through imperialism that of many other countries. was based on Hale – Sir Matthew Hale, the head of the judiciary who wrote his History of the Common Law in the period of reaction which followed the English revolution of the 17th century.

Women will no longer tolerate a second class status.

Generally, married women had no legal existence and no rights separate from their husbands. Hale held. in a 1736 dictum, that rape in marriage could not take place because „by their mutual matrimonial consent and contract the wife hath given herself in this kind to her husband which she cannot retract.“ On marriage a woman signed away all her rights, even to her own body. Unlike rape by a stranger, it was not even a case of establishing that a woman had meant ’no‘ when she said ’no‘. She had no right to say ’no‘, Such attitudes and laws reflect the origins of the bourgeois family in slave society.

Gradually these laws have been undermined by other gains women have made. Exceptions to marital immunity for rape have been brought about by divorce and judicial separation. If a husband and wife were still married but no longer cohabiting there was some doubt about whether the man would be immune from a charge of rape, especially if there was a court injunction against him.

The 1956 Sexual Offences Act described rape as ‚unlawful sexual intercourse‘. Unfortunately, in this context unlawful usually means ‚outside marriage‘. Therefore marital immunity was still assumed to apply. In 1976 the law was allegedly clarified to define rape as being without the consent of the woman. However, the word ‚unlawful‘ was still retained, so the confusion and wide scope allowed to judges to exercise their ‚discretion‘, not to mention their backward ideas, continued.

In 1990 in the case Regina v R, the House of Lords rejected marital immunity. The Law Commission, the official law reform body for England and Wales, began work to clarify the position. And in January this year it reported that, in fact, marital immunity no longer exists.

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On the surface you might think this was a particularly uncontentious matter. But the discussion it has thrown up shows the remnants of the old ideas in places of influence. More especially, it revealed again the material difficulties which stand in the way of women taking advantage of the law, and therefore the strictly limited effect legal change has on the lives of working-class women in particular. Obviously any changes in the law of this kind are welcome. A recent survey carried out for Granada Reports by Manchester University came to the not surprising conclusion that 96% of married women thought rape in marriage should be made a crime.

However, the main dissent in the law commission’s report comes from the very people who will have to implement it – the Council of Her Majesty’s Circuit Judges. They thought it would be impractical to prosecute a man for raping his wife and therefore they wanted to limit it to couples who were no longer cohabiting. They felt unsuccessful prosecutions would undermine the seriousness of rape in general. Whilst there are obviously difficulties in prosecuting cases where there are normally only two witnesses, it is hard to see how the difficulties in prosecuting marital rape would undermine the general seriousness of rape any more than allowing a whole section of the community to be immune from prosecution in the first place.

But as usual it was left to the benighted ranks of Tory MPs, in this case Tony Marlow, to defend slavery and slavish attitudes, and doing so using the most ridiculous language, in the debate in parliament. He opposed the law commission’s report on the grounds that women could always get a divorce. Never mind how long that might take and how many more times you might be raped and generally abused in the meantime. He thought the changes were motivated by a combination of „unfortunate women who need our help and support“ and ‚wimmin‘ – „the ghastly feminist lobby who think men are made of slugs and snails and puppy dogs‘ tails, and women are made of sugar and spice and all things nice.“

What the distinction between the two groups really signifies is that he can ’sympathise‘ with women who he sees as poor little helpless victims deserving of charity and pity. What he can’t stand is not just feminists but women who are prepared to stand up and fight and make demands his system may not want to concede, He continued his arguments on the same nursery rhyme level with the statement that these proposals would create a two-tier marriage system – a church wedding where a wife would promise „to love, honour aid obey until death do us part“ and her husband would be allowed to rape her: and a registry office wedding, presumably with no obligation to obey, where marital rape would be a crime.

Although it is quite likely that prosecution will be difficult, the existence of legislation of this kind has the effect of spelling out what is socially unacceptable and gives a legitimacy to women’s struggles. The same can he said of the Equal Pay, Sex Discrimination and Abortion Acts. even though everyone recognises they have not solved the problems and disadvantages of working-class women. In fact the passing of such legislation shifts the focus to how can these socially recognised, just demands be achieved in practice.

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Some discussion has taken place in both the commission report and the newspapers as to whether rape in marriage is as serious as rape by a stranger. This is really a reflection of people dragging their heels over the issue. The key question with rape is not the details or the degree of physical violence which accompanies it but the lack of consent by the woman. Carol Sadler in The Sunday Times, 2 February 1992. argued that there should be a graded scale of sexual offences as an alternative to the single offence of rape. The implication was that marital rape would be lower down the scale. She dismissed the claim by Women Against Rape that „rape by husbands is just as painful and traumatic as rape by strangers, in some ways worse“, as ‚bullshit‘. She instances a woman who was raped when she was nine months pregnant by a stranger.

However, a married woman described the excruciating pain and long-term emotional damage done when her husband raped her two weeks after giving birth while she still had stitches from the birth. Another woman describes how she was raped by her husband when she was ill in bed with flu. „He really hurt me physically and mentally. I’ve never forgotten the humiliation of someone you thought you loved doing that to you. It had a dreadful effect on me, I felt cheap. It was as if I was nothing.“

A survey conducted amongst married women showed that 84% of women who had been sed by their husbands thought it was as serious as rape by a stranger. Twelve per cent thought it was worse.

One of the problems in proving marital rape, and one of the reasons why it might not always be accompanied by the obvious violence which attracts sympathy, is that although physical violence is often used, the threat of it, especially to a woman who has already been beaten, is often enough. It can also be accompanied by threats not to give the woman money from his wages to run the house, to hurt the children. take them away from her or verbal abuse and mental cruelty.

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One of the most controversial proposals from the commission report, which highlights the limits of the law, revolved around the ‚compellability‘ of wives as witnesses. Basically in the past a wife could not be forced to give evidence against her husband. This has gradually been removed until now wives are compellable for most crimes.

There is a fringe element reflected in the report who believe that if women are given legal rights they are likely to use them frivolously or maliciously and therefore they support compellability to prevent women from wasting police and prosecution time.

However, the law commission itself recommends compellability as a form of protection for the woman on the grounds that if she has no choice but to testify then there would be little point in her husband intimidating her to withdraw the case. They also point out that if wives are not compellable. the police and prosecution service would be reluctant to take the issue seriously.

One of the dangers with compellability is that if a woman refuses to testify she could be charged with contempt of court and imprisoned or fined. The commission points out that a judge can ignore contempt where there is evidence that a woman has been intimidated, as in fact they do now. However, there are cases such as that of Susan Mellor, who was jailed for a week for refusing to give evidence after she had been threatened by her partner. Other women have been fined.

The commission appealed to the ’sensitivity‘ of the judiciary on this issue. However, given the inconsistent way in which the law is sometimes applied, women might well feel that ’sensitivity‘ is found in rather variable amounts amongst judges and it would be best not to have to rely on it. And the final appeal is to the Director of Public Prosecutions, the last having been removed from his position after he was arrested for kerb crawling!

Democratic control of the judiciary would be a safer alternative in producing a judiciary which recognised social changes and applied the law consistently. But in any society the judiciary will reflect the interests of the ruling class, including their ideology. Inconsistency is likely to be the case where no fundamental change in the position of women and the nature of society has taken place.

Many of the women’s organisations made the point that compellability will not protect women from intimidation any more than it does now in relation to other crimes, Getting a non-molestation order, an injunction with powers to. arrest a violent partner, is difficult and even more difficult to enforce. On the other side, a woman who realised that she could be compelled to give evidence against her will, might be reluctant to call the police in the first place. The continuing prejudice displayed by some judges towards rape victims would also deter some women from reporting rape.

There seems little point in pushing compellability since it is not just the physical presence of the woman in court which is required but the quality and relevance of her evidence which might not be forthcoming if she is there against her will. In the end the legal system would have to take into account her wishes and her assessment of the risks she might face.

In cases of child abuse, rape and domestic violence, the police may show a lack of interest if there is difficulty with evidence, because in the end what matters to them is prosecution and crime statistics and they measure their job accordingly. However, this conflicts with the views of women. Although many women demand the arrest of violent partners only to find that the police do not arrest them, others call the police for immediate protection and to stop the violence rather than having any intention of proceeding with a prosecution. Others may have an ambivalent attitude. The safety of the woman and her wishes is more important than the certainty of a prosecution.

We have to look at these questions from the point of view of the women who are experiencing abuse, and what will contribute to the morale and unity of the working-class, which cannot be based on the abuse of one section by another. Legal action alone cannot protect women.

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At present the ideology regarding women is undergoing change because of material conditions in society and the law is adapting to this. But continuing social and economic inequalities make it difficult for women to resist coercion and limit women’s ability to leave a man who acts as if the law has not changed. Whilst in the past women were totally dependent on men economically, there are now many single parents who manage to live on low pay and benefits. But they are amongst the poorest sections of society and therefore economic dependence is still a factor.

Similarly, lack of refuges and cuts, especially in council housing, mean that there may be nowhere else to go. According to the Women Against Rape survey, 79% of women trying to leave a husband who raped them were trapped by lack of money or housing.

In addition to such material problems is the situation created still by capitalist propaganda, the mass media and conditioning in general in society, where women are still led to believe a successful marriage is their main aim in life and depends on their efforts.

Recent propaganda about children suffering as a result of divorce, are an attempt to make women feel guilty as they are the ones who usually end up with the children. The government are trying to deflect attention from the fact that in many cases it is the poverty of single parent families which causes the problems and that children suffer in two-parent families as well. Many harrowing marriages are held together ‚for the sake of the children‘.

However, unlike changing the law, a minimum wage and benefits linked to it so there would be no fear of poverty; a publicly funded network of refuges; a massive housebuilding and refurbishment programme and so on, would cost money. The real ability of working class women to take advantage of the law will depend on the willingness of the labour movement to fight for such reforms and consolidate these through the socialist: transformation of society. A socialist society based on the rational use of resources under democratic planning, rather than exploitation and coercion, would have no use for the inequalities and feudal attitudes still fostered in capitalist: society.