“O  the woman God said, “I will greatly increase your pains in childbearing; with pain you will give birth to children. Your desire will be for your husband, and he will rule over you.” Genesis 3.16)

“If a husband calls his wife to his bed and she refuses and causes him to sleep in anger, the angels will curse her till morning.” (Bukhari v.4, b.54, no.460).

“Now I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.” (St Paul, I Corinthians 11.3)

Marital or spousal rape is now illegal in most of the developed and much of the developing world.  But it is one of those subjects that came late in the discussion of women’s rights and criminal sexual abuse.

As the West tries to redefine “traditional” marriage in a way that respects the concept of a consensual relationship between equal partners of either sex,  it needs to acknowledge that its own view of traditional marriage has actually been an impediment to solving a problem enshrined in that understanding: the idea of contractual privilege–superiority–of the man over the woman.

Most of the confusion in law stems from unacknowledged theological beliefs that have been papered over by a slew of case law, but like mildew keeps seeping through to reveal the ancient conceptual rot underneath.

A lot of this is blamed ( maybe rightly) on Saint Paul, who commended women in Christian marriage not to refuse their husbands their conjugal “rights” (1 Corinthians 7.5; cf 1 Cor. 11.13), and a half-mad interpreter of Paul who saw pregnancy as the fast track to salvation for obedient wives (1 Timothy 2.15). Not that the church invented this model of nuptial happiness: it was already a part of the family law of ancient Rome, before the Church came along.  The paterfamilias–the pinnacle of patriarchal development in the West– had power of life and death over wife, children and slaves, with few legal constraints.  The Christian church made male authority canonical in the Church, where women were excluded from governance,  and in the family, and preserved the man-on-top philosophy for two millennia, with almost no one raising serious objections.

Christianity also went the Romans one step better: it declared that God wanted it this way.  In Book VI of his Confessions, Augustine recalls that he acquired a concubine, while waiting for his bride-in-waiting to become of marriageable age,  because “he was not a lover of marriage but a slave of lust”–a view of woman’s functionality that he scarcely budged from at any point in his career: “[O God] Thou hast granted to man that from others he should come to conclusions as to himself, and that he should believe many things concerning himself on the authority of feeble women (Conf. i)…. Woman who is simple and knoweth nothing (Conf. iii).”

Women’s consent in sexual matters was further compromised by the theological premise that they were lacking in reason, which only the male possessed in significant measure, and “nothing so casts down the manly mind from its heavenly heights as the fondling of woman and those bodily contacts which belong to the married state.” The woman is the source of pain and guilt, the incitement to lust, by God’s decree,  a permissible distraction for the eminently reasonable man who sometimes must take his fist to to the woman’s face to release his passion.

Along the way, inevitably, the theology of men on top–the male as dominant partner–seeped into the Common Law that formed the basis for the legal systems of America and the British Commonwealth. A famous 17th century treatise by Sir Matthew Hale (not published until 1736) called marital rape “an impossibility in law” because by virtue of marriage “the wife hath given up herself in this kind unto her husband, which she cannot retract.” The chatteled staus of the woman in the partnership was simply assumed as a point that need not be argued.

A number of movements in the nineteenth century began to eat away at the logic of Hale’s commentary.  Letters and diary entries from Elizabeth Cady Stanton, Lucy Stone and Susan B Anthony illustrate the intensity of the struggle:

Stanton: “‘Woman’s degradation is in man’s idea of his sexual rights,’ Stanton wrote to Anthony. ‘How this marriage question grows on me. It lies at the very foundation of all progress.’”

Stone: “It is clear to me, that [the marriage] question underlies, this whole movement and all our little skirmishing for better laws, and the right to vote, will yet be swallowed up, in the real question, viz, has woman, as wife, a right to herself? It is very little to me to have the right to vote, to own property &c. if I may not keep my body, and its uses, in my absolute right. Not one wife in a thousand can do that now, & so long as she suffers this bondage, all other rights will not help her to her true position.”

But after the nineteenth century there was real progress in understanding marrriage as a pact of equals–a fact not just reflected in the changing nature of marriage rituals (“love, honor and obey” becoming a rare form of the Anglican promise required of a bride after 1965) but the progressive criminalising of marital rape after 1970 and the United Nations declaration hat marital rape is a violation of human rights in 1993. In 2006, it was estimated that marital rape could be prosecuted in at least 104 countries, and since 2006 several other nations have outlawed spousal rape.  Surveys show that Islamic countries and most African countries have been the slowest to implement penalties for marital rape, and that even in those countries where the rape of a spouse has been criminalized, a category of exemptions and special considerations exists (for example, the notion that the marriage contract constitutes “implied consent”) that make prosecution of the crime a difficult matter.

HE question is at the center of the religion- and- state- issue that affects many countries around the world, but especially those trying to create a civil legal system against the backdrop of religious law and traditional attitudes about marriage.  Deference toward tradition affects not only couples living in the culture where the marriage conventions and laws were formed, but also dispersed populations, such as the Pakistani diaspora in the U.K., that embrace some but not all of the “western” values indigenous to liberal European democracies.

A recent article by Aneka Chohan highlights the problem in Islamic societies.  She puts the dilemma as starkly and forcefully as I have seen it:

When it comes to marital rape, women are often confused whether they have been raped or not. The scenario of a stranger raping a woman on the street is immediately identified as  rape, where as forceful acts by a husband upon a wife are considered acceptable. This is partly due to the cultural belief that is rooted in women’s minds that ‘submitting’ to their husband is a sign of a dutiful wife.

The West tends to feel terribly privileged and liberal in the discussion of marital rape, but the premises used by Islamic theologians and “experts” are hauntingly like the rationales used in Europe and America for centuries: it is based of a thelogy of opposites, discredited Aristotelian biology (which saw the male as “propagative” and the female as “nutritive”), and a system that was designed specifically to keep women in their place as help-meets to their masculine superiors.

Take for example the words of Sheikh Maulana Abu Sayeed, the president of the Islamic Sharia Council of Britain–a Muslim cleric living in England–where any report of spousal rape would be treated as a crime:

“Clearly there cannot be any rape with the marriage. Maybe aggression, maybe indecent activity…because when they got married, the understanding was that sexual intercourse was part of the marriage, so there cannot be anything against sex in marriage. Of course, if it happened without her desire, that is no good, that is not desirable….In Islamic sharia, rape is adultery by force. So long as the woman is his wife, it cannot be termed as rape. It is reprehensible, but we do not call it rape.”

There may be a superficial logic to this preposterous claim, but it has no more bearing on the nature of rape than the seventeenth century notions of Sir Matthew Hale.   Add to this the lack of consensuality that precedes the marriage contract in much of Islamic society and the rape provision becomes even more invidious: a woman who did not marry a man of her choosing can be held accountable for not giving that man his conjugal “rights.” A girl taken by force and gang raped can be judicially executed (“honor killing”) for bringing shame on her family, as in the case of seventeen year old Kainrat Soomro who was declared a kiri(blackened woman) by a council of elders for losing her virginity outside marriage.   As Habibi Nosheen says in her superb Atlantic article from September 2011, “The most recent report from the Human Rights Commission of Pakistan noted that in 2009 roughly 46 percent of all female murders in Pakistan that year were in the name of ‘honor’. The report noted that a total of 647 incidences of ‘honor killings’ were reported by the Pakistani press. However, experts say that actual incidences of ‘honor killings’ in Pakistan are much higher and never get reported to the police because they are passed off by the families as suicides.”

Underlying the judgments of the religious experts is more than two thousand years of male superstition, male insecurity, and male power.  Coercion and dominance within marriage is the last hurrah of a concept of marriage that keeps daddy on top and mother–as the writer of I Timothy advocates–barefoot and pregnant.

It keeps women ashamed to tell the truth about the thugs they married and daughters silent about the men who drugged them and bruised them and robbed them of the right to choose.

But it is not even that easy: Because in the first instance, spousal rape is not about choice. It is about power and the mythology that supports power.  The men who do such things are supported by a vicious theology that makes God, “the almighty father,” the “compassionate, the merciful,” the “hearer of prayers”– that God– the creator of a system that sees women as what the Catholic church used to call “occasions of sin”–visual enticements to lust and pleasure.  It’s all their fault; they earned their position by being the first to transgress God’s law, surrendering (as Augustine saw it) their natural rights to the man.

This theology has been chanted and sung and and said for two millennia by thousands of under-educated clerics in the book traditions who could not make an honest living if their lives depended on it, and hence prefer the easy road: tell people what God wants and what God the father expects of them. The God who told a virgin named Miriam not to tell anyone he’d got her pregnant.  The God who abused his only son and required him to be tortured to death. The God who teased Abraham with the promise of a son for a hundred years and drove his youngest wife into the desert. The God who told the Prophet that a nine year old wife would become the mother of believers. That God. Tell them that God wants it this way: your wives submissive and silent and your daughters obedient.  If that fails, there are always fists and knives.