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The Injustice of the Marital Rape Exemption: a Survey of Common Law Countries
American University International Law Review Volume 4 | Issue 3 Article 3 1989 The njuI stice of the Marital Rape Exemption: A Survey of Common Law Countries Sonya A. Adamo Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Adamo, Sonya A. "The nI justice of the Marital Rape Exemption: A Survey of Common Law Countries." American University International Law Review 4, no. 3 (1989): 555-589. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. NOTES AND COMMENTS THE INJUSTICE OF THE MARITAL RAPE EXEMPTION: A SURVEY OF COMMON LAW COUNTRIES Sonya A. Adamo* INTRODUCTION A woman is raped by her husband the day after undergoing gyneco- logical surgery, which causes her to hemorrhage and return to the hos- pital.' Another woman is forced to have sex at knifepoint by her es- tranged husband. Conscience and justice dictate that the perpetrators of such crimes must suffer some punishment. Many common law coun- tries, however, still sustain the misbelief that a husband is incapable of raping his wife, due to the presumption of a wife's absolute, irrevocable consent to any sexual acts during the course of marriage.3 These laws provide a husband with immunity from prosecution for marital rape simply because of his status as husband.4 Yet, this prospect is unsound. -
A Brief Guide to the Divorce Procedure in England and Wales V2.Pdf
A brief guide to the divorce procedure in England and Wales Grounds for Divorce To obtain a divorce in England and Wales you must demonstrate that the marriage has broken down irretrievably. In order to establish this you need to cite one of five possible facts: 1. Adultery 2. Unreasonable behaviour 3. Desertion 4. Two years separation with the consent of the other person 5. Five years separation without consent In the vast majority of cases the divorce is dealt with by paperwork and there is often no need to attend Court at any stage. Petition for Divorce and Service of Documents The first step for the ‘Petitioner’ (the person starting the divorce process) is to prepare a Divorce Petition. This is a legal document which sets out the details of the parties and the marriage and the reason for wanting the divorce. This is all sent to the Court to be issued. The Court will tell you when this has been done. At the same time the Court will send the divorce petition to your spouse the ‘Respondent’. The Respondent then has seven days to acknowledge the divorce by completing the Acknowledgement of Service sent to them by the Court. This is a straightforward form, mostly consisting of ‘yes/no’ answers, which confirms that they have received the petition. It will also ask whether they agree that the Courts of England and Wales have jurisdiction to deal with the divorce and whether or not they intend to defend the divorce. Most cases are not defended. Decree Nisi Once the Acknowledgement of Service has been returned to the Court the Petitioner can then apply for the Decree Nisi (provided that the divorce will not be defended). -
Lawful Wife, Unlawful Sex-Examining the Effect of the Criminalization of Marital Rape in England and the Republic of Ireland
NOTES LAWFUL WIFE, UNLAWFUL SEX-EXAMINING THE EFFECT OF THE CRIMINALIZATION OF MARITAL RAPE IN ENGLAND AND THE REPUBLIC OF IRELAND Melisa J. Anderson* Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistresses of every house.' I. INTRODUCTION There is no question that "ordinary" rape is a difficult crime, whether from the perspective of the victim, the accused or the state. It presents evidentiary problems for both the prosecutor and the police, may socially and economi- cally ruin a falsely accused man, and causes unimaginable emotional challenges for the victim. But the crime of rape is perhaps even more problematic for all concerned when the assailant is someone known and trusted by the victim-such as a friend, a relative, or worst of all, a spouse. It is obviously most difficult to prove lack of consent in a spousal rape situation, and frequently victims of spousal rape will not report the crime. Underreporting and social stereotyping of women has made marital rape one of the most misunderstood crimes of the modem era.2 Despite the social and legal condemnation of all types of domestic violence in its many forms, the very concept of marital rape is a legal problem unique to the latter half of the twentieth century. This is not to imply that there were no cases prior to this time where a wife accused her husband of rape. On the * J.D. 1998, University of.Georgia. 'JOHN STUART MILL, THE SUBJECTION OF WOMEN, 1869. 2 For purposes of time and space considerations, this Note will focus on marital rape as the act of a husband having forcible sex with his wife against her will. -
MARITAL RAPE and INTIMATE PARTNER SEXUAL VIOLENCE ACROSS the COMMONWEALTH Title Goes Here Text to Come
THE CRIMINALISATION OF MARITAL RAPE AND INTIMATE PARTNER SEXUAL VIOLENCE ACROSS THE COMMONWEALTH Title goes here Text to come The Equality & Justice Alliance is dedicated to advancing equality and promoting equal protection of the law for all Commonwealth citizens regardless of sex, gender, sexual orientation, gender identity or expression. www.equalityjusticealliance.org.uk 2 The criminalisation of marital rape and intimate partner sexual violence across the Commonwealth 1. Origins and developments in 1.international and regional standards 2. 3. Origins and developments Legislative protections in relation to Country reports in International and marital rape and intimate partner sexual regional standards violence across the Commonwealth This report This report commissioned by Sisters For Change analyses the criminalisation of marital rape and intimate partner sexual violence across the Commonwealth. Marital rape and intimate partner sexual violence constitute acts of gender-based violence prohibited under international human rights law. The report explores the colonial origins of the marital rape exemption before examining in detail the development of international and regional human rights standards relating to marital rape and gender-based violence. Almost half of all Commonwealth countries require legislative reform to remove the marital rape exception in order to establish a statutory definition of rape that complies with international and regional standards. Through a series of country case studies, the report analyses inadequate legislative protections in relation to marital rape and the challenge that religious and customary laws in plural systems pose to legislative reform before discussing three different legislative models which have been adopted by Commonwealth countries to criminalise marital rape and intimate partner sexual violence. -
No Contest: Defended Divorce in England & Wales
No Contest: Defended Divorce in England & Wales Liz Trinder and Mark Sefton www.nuffieldfoundation.org About the authors • Liz Trinder is Professor of Socio-legal Studies at the University of Exeter Law School. • Mark Sefton is an independent researcher. About this report This report explores the relatively rare phenomenon of the ‘contested’ or ‘defended’ divorce in England & Wales. It is a companion study to Finding Fault?, published in October 2017, which examined undefended divorce cases. Both reports present findings from a Nuffield- funded project to explore how the current law regarding divorce and civil partnership dissolution in England and Wales operates in practice, and to inform debate about whether and how the law might be reformed. All reports from the project are available to download from www.nuffieldfoundation.org/finding-fault About the Nuffield Foundation The Nuffield Foundation funds research, analysis, and student programmes that advance educational opportunity and social well-being across the United Kingdom. We want to improve people’s lives, and their ability to participate in society, by understanding the social and economic factors that affect their chances in life. The research we fund aims to improve the design and operation of social policy, particularly in Education, Welfare, and Justice. Our student programmes - Nuffield Research Placements and Q-Step - provide opportunities for individual students, particularly those from disadvantaged backgrounds, to develop their skills and confidence in quantitative and scientific methods. We are an independent charitable trust established in 1943 by William Morris, Lord Nuffield, the founder of Morris Motors. www.nuffieldfoundation.org | @NuffieldFound Extracts from this document may be reproduced for non-commercial purposes on condition that the source is acknowledged. -
Iguide: a Guide to Divorce Procedure in England and Wales
iGuide: A Guide to Divorce Procedure in England and Wales www.iflg.uk.com | [email protected] | +44 (0)203 178 5668 Obtaining a divorce is usually quite straight forward - particularly if you and your spouse agree that the marriage is over. Difficulties tend to occur more in agreeing the practical issues such as where to live, arrangements for the children and financial matters. As you will be concentrating on those related issues, the procedure of actually getting the divorce may seem unnecessarily complicated. The purpose of this brief guide is to explain the process. Who can start divorce proceedings? Either spouse may start divorce proceedings, provided that they have been married for over a year and satisfy the jurisdictional criteria (connectedness) for the English courts to accept a divorce petition. You must satisfy one of the following criteria: 1. Both of you are habitually resident in England or Wales; 2. Both of you were last jointly habitually resident in England and one of you still resides here; 3. The Respondent to the divorce is habitually resident in England and Wales; 4. The Petitioner is habitually resident in England and Wales and has been residing here for the past 12 months; 5. The Petitioner is domiciled here and is habitually resident and been residing here for at least 6 months; 6. Both of you are domiciled in England and Wales; 7. Either of you are domiciled in England (this basis is not available if any other EU state has jurisdiction and can cause difficulties with some financial claims). We can advise you further about the meaning of habitual residence and domicile and which is the best and most appropriate jurisdictional ground for you. -
A Postcolonial Theory of Spousal Rape: the Carribean and Beyond
Michigan Journal of Gender & Law Volume 22 Issue 1 2015 A Postcolonial Theory of Spousal Rape: The Carribean and Beyond Stacy-Ann Elvy New York Law School Follow this and additional works at: https://repository.law.umich.edu/mjgl Part of the Common Law Commons, Family Law Commons, Law and Gender Commons, and the Legal History Commons Recommended Citation Stacy-Ann Elvy, A Postcolonial Theory of Spousal Rape: The Carribean and Beyond, 22 MICH. J. GENDER & L. 89 (2015). Available at: https://repository.law.umich.edu/mjgl/vol22/iss1/3 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Gender & Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. A POSTCOLONIAL THEORY OF SPOUSAL RAPE: THE CARIBBEAN AND BEYOND tacy-nn lvy* Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Depart- ment Country Reports on Antigua and Barbuda, the Bahamas, Bar- bados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to elimi- nate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Com- monwealth Countries have retained the common law spousal rape exemption. -
Sanctity and Shariah: Two Islamic Modes of Resolving Disputes in Today’S England John R Bowen
Sanctity and shariah: Two Islamic modes of resolving disputes in today’s England John R Bowen Amid the din of tabloid accusations that Britain now enforces “shariah law” has been lost the variety of ways in which British Muslim scholars have combined religious legitimacy, quasi- judicial procedures, and social outreach to create new kinds of Islamic institutions. I set out two such institutions here to give a sense of that variety. Together they illustrate the complex ways in which British Islamic institutions can and do articulate positions on registers of spirituality and legalism. Muslim trajectories to England Alone among countries in Western Europe, England has a wide range of highly-organized institutions that mediate or arbitrate conflicts among Muslims (Bano 2004; Bowen 2011). Only one of them, the Muslim Arbitration Tribunal, headquartered at the Hijaz College north of London, arbitrates in commercial or, less often, family conflicts.1 Other institutions offer various forms of non-binding mediation, where the documents produced are not enforceable in civil court. Some of these institutions are quite informal, in that a relative or local imam may be called upon to resolve a dispute. But in many cases involving family issues, the parties may seek the aid of a Shariah Council. Muslims can easily find such Councils in London, Birmingham, Bradford, Manchester, and elsewhere. They provide downloadable forms on their web sites, charge set fees for service, and meet on scheduled days of the month. These tribunals bring to England modes of resolving disputes that had been established in South Asia. That they were able to emerge and develop successfully in England is due in part to the concentrated nature of Muslim settlement in English cities and in part to the relative English receptivity to the formation of local religious associations. -
How Could English Courts Recognize Shariah? John R
University of St. Thomas Law Journal Volume 7 Article 3 Issue 3 Spring 2010 2010 How Could English Courts Recognize Shariah? John R. Bowen Bluebook Citation John R. Bowen, Keynote Address, How Could English Courts Recognize Shariah?, 7 U. St. Thomas L.J. 411 (2010). This Keynote Address is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information, please contact [email protected]. KEYNOTE ADDRESS HOW COULD ENGLISH COURTS RECOGNIZE SHARIAH? JOHN R. BOWEN* INTRODUCTION Nowhere in Europe or North America is the legal system closer to “recognizing” Islamic judgments than in England. In his widely discussed February 2008 remarks, Archbishop of Canterbury Rowan Williams ex- plored ways that the legal system might “recognise sharia.”1 He observed that doing so would require “access to recognised authority acting for a religious group” and mentioned the Islamic Shariah Council, London, as such a body.2 Despite the storm of media criticism that emerged in response to the Archbishop’s comments, Britain’s highest Justice, Lord Phillips, joined the Archbishop later that year in saying that English law should rec- ognize certain elements of shariah since shariah seemed to be here to stay.3 These two addresses conveyed an authoritative stamp of approval, but did not clarify what it means to “recognise sharia.” Part of the confusion could have resulted from the Archbishop’s juxtaposition of commercial ar- bitration and family law. In England and Wales these two areas of law have very different degrees of openness to private dispute resolution.4 Commercial disputes are subject to resolution under the Arbitration Act 1996; few obstacles stand in the way of a religion-based body carrying out binding arbitrations of commercial disputes as long as a proper contract * Dunbar-Van Cleve Professor in Arts & Sciences, Washington University in St. -
Working Paper No. 116 on Rape Within Marriage
The Law Commission Working Paper No. 116 Rape within Marriage HMSO The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr. Justice Peter Gibson, Chairman Mr. Trevor M. Aldridge Mr. Jack Beatson Mr. Richard Buxton, Q.C. Professor Brenda Hoggett, Q.C. The Secretaty of the Law Commission is Mr. Michael Collon and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 280. This working paper, completed on 17 September 1990, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments before 1 March 1991. All correspondence should be addressed to: Mr. A. Cope Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 280 (Tel: 071-242 0861 Ext. 225 Fax: 071-242 1885). It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this working paper. Whilst any request to treat all, or part, of a response in confidence will, of course, be respected, if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Working Paper No. 116 Rape within Marriage LONDON: HMSO @ Crown copyright 1990 First published 1990 ISBN 0 11 730198 1 THE LAW COMMISSION WORKING PAPER NO.