Marital rights or partial immunity? Essay
Marital rights or partial immunity?
The rape within marriage was not a crime and this principle had stood for centuries until 1992. In the case of R ( 2 All ER 257) the rape within marriage was constituted as a serious crime. Before it became a law it was place for debates and Professor Glanville Williams had given his proposals how the law should be changed on this topic. The current article of the author of Helen Fenwick, who is a lecturer in law at the University of Durham, explains why Prof. Williams proposals are not suitable to be a law and secondly, he considers the effect if Prof. Williams suggestions would have been approved. The article is comprehensive and every argument has decent backup, except one thing that author do not even try to identify merits of Prof. Williams proposals. The marital rights and partial immunity, according to Prof. Williams is important measure.
It indicates that offence of rape is somehow different according by who is made. If it was made by to victim known person like cohabitee, husband, ex-cohabitee or ex-husband it should get lesser sentence than rape by stranger. Also it is suggested that domestic rape would be classified as assault and not as rape or indecent offence, because it is less harmful to the victim to be raped by husband than a stranger, and cohabitee or husband should get lesser sentence than stranger. Secondly, according to Prof. Williams all rapist can be put in two groups: present and former husbands and cohabitees on first instance and on second strangers and as I mentioned above Prof. Williams suggests that the former group should be treated more leniently, because its less horrific to the victim and strangers rapist is more dangerous to society.
Helen Fenwick is very sceptic about these suggestions, he uses number of arguments, examples in order to prove it. Author does not support marital rights neither partial rights on the subject of domestic rape. In the first place, Fenwick denies merits of using ‘categorisation of rapists’ and uses very one sided examples of domestic rape, husband, and stranger rapists. Author has intention to show that domestic rape can be worse than stranger rape, because of the future consequence. Secondly, Fenwick is against ‘Re-Labelling of All Domestic Crimes’, he argues that it would bring anomalies and injustice and he is right because it requires major changes in domestic offences. Furthermore, author declares that provocation hardly can be working with rape offence, because a husband or cohabitee, who rapes unfaithful wife should be given some allowance. But on the other hand “Why not to extend such consideration to the distraught husband who beats up his unfaithful wife?”.
In the end Fenwick talks about ‘Cohabitation as a mitigating factor in rape’. Author is against this assumption, because husband can be accused of rape, but sentenced on a different scale than stranger. There are some problems however, with Fenwick argument and his overall looking into Professors Glanville Williams articles. It seems that Fenwick is looking for demerits only and very sceptic about Prof. Williams proposals. Furthermore, it can be reasonably believed that when looking at Prof. Williams suggestions it possible to find merits. The court will consider all relationships between victim and offender, and it can hardly be said that it would not take into account when sentencing that when rape occurred the victim and accused was living together. Moreover, when Fenwick using examples of husband and stranger raping victim, he is using extremities. He shows the worst scenario of how husband rapes his wife, with the worst future consequences and he using example to strengthen his opinion by showing us that stranger who rapes victim can be less harmful.
Later he is trying to repair this position by saying that “I do not want to suggest that “stranger” rape is really cosy” and “it is well known that husbands and other members of the family sometimes find any rape hard to come to terms with and may blame the woman”. It reflects that he could use more objective examples. On the other hand, this article is really strong and persuasive. Authors arguments are well backup with creditable information, he is examining problems in depth. Rises proper questions to influence reader and to negate Prof. Williams proposals as it is true that these proposals if incorporated into law would not bring certainty and finality to it, it would bring anomalies and misunderstandings. Fenwick uses statistics to strengthen his position on point that most of the rape is made by people who is known to the victim, and so if Prof. Williams suggestions would be incorporated, it would bring ‘partial immunity’ to the most rapist and they would receive lessen crimes, like domestic assault and others.
What is more, the text reflects the Helen Fenwick view and in that time recent decided case of R and Law Commission recommendations, which is mentioned in the article. As author is criticising the Prof. Williams articles it is necessary to say that all Fenwick criticism is justified. The article also respond directly to the points made by Prof. Williams and comes with results how these proposals would had changed law on domestic rape into negative side. It is worth to mention that Fenwick is using current practise and personal reflection to deal with this problem. I am quite sure that Helen Fenwick is right what he is trying to address to us and the key points is set out in easy and comprehensive language in order to access to reader.
In the conclusion, Fenwick view is based on the modern policy and to give women more rights. It also says that the principle of irrevocable consent within marriage is not just and any proposals by Professor Glanville Williams is against women rights to dispose her body as she chooses. What I can say more, that I am of the same opinion as Fenwick and I think when read this article you should focus on the women rights.
In 1990s the criminal law on rape was on the edge of changing. The principle, that at marriage woman gives irrevocable consent to have sex with husband, now is being challenged. There was strong public opinion that stranger rapist and husband rapist should be equal placed in the court room. Professor Glanville Williams in his article ‘The problem of domestic rape’ (141 NLJ 205); (141 NLJ 246); argues that husband should not be liable for ‘rape’ like stranger rapist for a number of reasons, which shall I discuss. In his article, Prof. Williams, is willing to affect changes in law on domestic rape topic. He argues that husband should be protected by exemption from domestic rape offence. Prof Williams gives further points to strengthen his position by saying that the principle of husband exemption from rape was standing for centuries, not only because it was a policy but also that husband do not deserve to be accused of rape. Spouses have long lasting relationship and that for maybe one time when husband had not had a consent he is not worth be liable for the same offence as stranger rapist.
Furthermore, after marital ‘rape’ couple can even be reconciled, and forget about that one incident and that domestic rape is far more less traumatic than stranger rapist. Moreover, Prof. Williams suggests that after abolishing exemption there is left to much protection for wife of criminal law in respect that at the marriage she accepts sexual relationship between her and husband. Another major concern of author is the sentencing problems which is against his view. Prof. Williams is of opinion that to punish husband for 3-5 years of imprisonment is too harsh. Author suggests that the sentence should be not about the years, but counting in days or even fine. Moreover, ‘compelling the woman to testify’ against his husband is not appropriate, for reason that woman can still feel love to her husband and this would be against her will to testify, but in our law now is contrary woman must testify. Prof.
Williams uses an example to illustrate this by ‘In 1989 a wife who refused to testify against her husband in an assault case was fined by Newark magistrates for contempt of court. Author thinks that this is against family interests. Professor’s Glanville Williams arguments is very interesting and challenging the Criminal law on rape. Author is wide known, respected, honourable academic and his authority and validity seems to be able to influence Law Commission and other academics. He is using a lot of tools to affect the reader, start with involving the reader, where he is asking reader to image, think what he would be in the place of husband, and ending with appellation to conscience. Prof. Williams backups all of his arguments by using case law or articles or even interviews with people. Latter is really helpful to put more confidence in the article. As he has great authority so his reasoning is valid to the deep context of family relations.
Author is supporting family welfare and put reconcilation as the strong argument that husband should have exemption from domestic rape. What is more, indeed is credible to rely on, as the reasoning this as I mentioned above, author is respected and honourable academic and if he would be so, we could not be influenced by his works. The last thing to say, but not least, is that the article is really well writen, it easy to read and understand. So it can affect general community. There are however some problems with Professor’s Williams arguments. It did not persuade me for a number of reasons. Let’s start with saying that the law should be equal to everyone who live within it. If Prof. Williams arguments would be accepted it is not right against, like he calls, ‘stranger rapist’.
Why? For the reason, that the ‘stranger rapist’ not always is very horrific, and the future consequence might be more positive to victim, being raped by stranger. Despite the fact, that victim feels more horrific being raped by stranger than husband we can still perceive positive side. For example, when victim is raped by husband she cannot expect support from her family, also victim losses confidence in all men, no matter how good personality is man, he can still be able to do that horrible act. Now looking at the stranger who raped his victim, she gets full support from her close people and after a while she can get back confidence in herself and men. Moreover, it is women right to dispose her body as she wants and no husband can tell how she must act, the principle that husband has exemption is out-dated public policy.
Furthermore, stranger as well as husband should have reasonable self-restraint level. So, to my mind, it is worth to have the same punishment for both wrongdoers, stranger and husband, because in the end the harm is done and offender must take the consequence of it. In relation, as Prof. Williams indicated, with ‘sentencing anomalies’ is very conflicting to law on sentencing. Author suggestion that downgrading domestic law to common assault would cause a lot of injustice into the law. It is the same to give privilege to one group of people and for other give more duties and severe sentences. This idea is step out of modern world, and denies the principle that all people should be equal to To consider all things mentioned above, it is clear that Professor Glanville Williams is respected and honourable academic, this article is written very well, it easy to read, comprehensive and credible. Despite this, his arguments is not walking a long side with modern world public policies and for this fact I do not agree with his article.
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 5 January 2017
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