In 1983, the “marital rape exemption,” which afforded legal and social immunity to husbands who raped their wives, was abolished from the Criminal Code. (An Act to Amend the Criminal Code) The exemption was rooted in a historical common law regime that perceived women as the property of men and constructed a woman’s consent to sexual intercourse or activity as irrevocable upon entering the marriage contract. The legitimacy given by the law to sexual violence against women by their husbands was informed by the “implied consent” theory, and it mirrored existing and historical rape myths and sexist beliefs regarding women’s sexuality.
Abolition of the marital rape exemption in 1983 in Bill C-127was the result of feminist legal and academic theory and lobbying that transformed societal perceptions of sexual violence against women and sought to place it at the centre of public debate. Law has power in constructing knowledge and ideology, yet it functions in dynamic tension with social structures and systems that affect its operation. Legislative recognition that wife rape is a criminal act is undercut by societal attitudes towards wife rape that minimize its severity. This contradiction raises concerns about the extent to which sexist rape myths continue to shape the response of the legal system to wife rape. A basic review of reported cases, although helpful in observing the courts’ approach, does not say a great deal about the “legal reality” of wife rape as a crime and how or if that reality has changed since 1983. Case law is often not reflective of the thoughts, perceptions, views, and practices of the legal players involved.
A review of the social science and legal literature reveals the extent to which rape myths and stereotypical beliefs continue to shape current societal perceptions of rape within intimate relationships. Discussions of wife rape were thought to be not needed.