State Obligation to Criminalize Marital Rape : Through the Lens of International Law

Although international human rights law has made great strides over decades in addressing violence against women in the public and the private spheres as human right violations, marital rape still remains an insufficiently addressed form of domestic violence in this area. Marital rape, even in the 21st century, where marriage is seen as a union between equals, in some States is not even considered as a form of domestic violence and is thus explicitly exempted from criminalization in these domestic legislations. This exemption of criminalization of marital rape gives legal immunity to a perpetrator who can rape his wife with impunity and who would have been punished by law if such a crime had been committed outside the purview of marriage. The criminalization of marital rape is opposed by some States for reasons which are arguably incompatible with international human rights law. The aim of this research is to examine how the exemption of marital rape by some State legislations violate various international human rights law norms and in doing so fail to uphold their duty to protect the fundamental rights of women to equality, non-discrimination, privacy and self-dtermination. Marital rape, when examined through the lense of international human rights law, potentially violates many of its norms, yet the fact that some States till do not criminalize it shows that there is a wide gap between international human right norms and the conformation of domestic legislation with them which only demonstarates that the exemption of criminalization of marital rape requires by some States is a matter that needs to be addressed in international human rights law more seriously and with persistence as a matter that is violation of the fundamental rights of women all over the world. The research in this thesis has been conducted in a legal dogmatic method. The research examines that if rape is condemned as a human rights violation in international law and as such States have a duty under due diligence standards to criminalize it, marital rape should also be criminalized by States as it violates various norms in international human rights law and therefore, the exemption of criminalization of marital rape by some States violates their due dilligence standards under international human rights law to combat violence against women. As States, under international human rights law have an obligation under due diligence standards to combat all form of violence against women by preventing, investigating, prosecuting and protecting women from violence, the exemption of criminalization of marital rape by States violate various fundamental rights of women. As such, failure to criminalize marital rape signifies that States fail in their performance of the due diligence standards in combating violence against women and to condemn marital rape as one of the hidden and gravest forms of violence which needs immediate legal redressal