• Legislation should specifically allow a husband or wife or intimate partner to be charged with sexual assault of his or her partner, whether or not they were living together at the time of the assault. Drafters should criminalize marital rape by stating that the relationship between the perpetrator and the victim does not bar application of sexual assault provisions. Legislation should include a provision that states that “no marriage or other relationship shall constitute a defense to a charge of sexual assault under the legislation.” (See UN Handbook, 3.4.3.1, law of Nepal) Provisions should apply “irrespective of the nature of the relationship between the perpetrator and the survivor.”   (Criminal Code (1958) of Canada, § 278;  Marital and Intimate Partner Sexual Assault, StopVAW, The Advocates for Human Rights)

• For example, the Combating of Rape Act (2000) of Namibia states that:

“No marriage or other relationship shall constitute a defence to a charge of rape under this Act.” (Section 2 (3)).

• Many countries retain some form of marital immunity for sexual assault, for example, less severe penalties for married offenders, or special procedural hurdles for married survivors. (See Goldfarb Expert Paper p.11 and Spousal Rape Laws Continue to Evolve, Women’s Enews)

• Legislation should not provide for less severe penalties for married offenders or special procedural hurdles for married survivors. (See: “The Legal Response to Violence against Women in the United States of America: Recent Reforms and Continuing Challenges,” by Sally F. Goldfarb, a paper for the United Nations expert group meeting on good practices in legislation on violence against women, 2008).

• In cases of child marriage, drafters should ensure that provisions on rape of a minor also apply in situations where the husband is the perpetrator. Laws should prohibit and punish sexual intercourse with a minor, defined as any person under 18 years of age, as rape. Enacting statutory rape laws may also facilitate legal reform on minimum age for marriage laws. For example, in the U.S. state of Kansas, the minimum age to marry is 15 and only if a district court judge decides it is in the best interest of the minor. Until 2006, however, Kansas had no minimum age of consent if parents or the court approved of the marriage. This change may have been instigated by the case of Mathew Koso from Nebraska. When Koso was 20 years old, he began dating a 12-year-old and impregnated her when she was 13 years old. They entered Kansas to marry after her fourteenth birthday because, at the time, Kansas had no set minimum age for marriage if the minor had parental permission. Despite the marriage, Nebraska’s Attorney General, charged Koso with breaking the state’s statutory rape laws. Koso served 15 months for statutory rape. (See: K.S.A. § 23-106(c)(1) and (2) (2006); Age of Consent Muddles Law on Marriage vs. Rape, Bushey, Claire, Women’s E News, 7 June 2007; Kansas Setting Minimum Marriage Age: 15, Associated Press, 5 May 2006)