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Published online by Cambridge University Press: 20 January 2017
Randall and Venkatesh’s important essay Criminalizing Sexual Violence against Women in Intimate Relationships is a breakthrough in our understanding of human rights, rape, and the institution of marriage, and the intersection of the three. Rape within marriage, the authors argue, strips its victims of multiple human rights, and therefore any state’s refusal to criminalize it is a violation of international law. However, more than half the countries in the world, according to the authors, fail to explicitly criminalize rape or sexual assault within marriage (which I will sometimes call “marital rape” in this comment). In this comment I will first briefly elaborate on the authors’ thesis, emphasizing what it tells us about the meaning, respectively, of “marriage,” “rape,” and “law.” I will then register three objections, or qualifications, to their argument.
1 Randall, Melanie & Venkatesh, Vasanthi, Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations under Human Rights Law, 109 AJIL Unbound 189 (2015)CrossRefGoogle Scholar.
2 See Hasday, Jill Elaine, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L.J. 1373 (2000)Google Scholar.
3 See Rubenfeld, Jed, The Riddle of Rape by Fraud, 122 Yale L.J. 1372 (2013)Google Scholar; Anderson, Scott, Conceptualizing Rape as Coercion Sex, Ethics (forthcoming)Google Scholar.
4 Randall and Venkatesh, supra note 1, at 194.
5 Anderson, supra note 3; Robin West, Rape, Consent and Coercion, Jotwell (forthcoming).
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