LEGALIZING DISCRIMINATION
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IT IS TRUE THAT MARITAL RAPE HAS BEEN AN EXEMPTION FROM CRIMINAL PUNISHMENT OF RAPE UP TO THE LATEST TIMES, EVEN IN COUNTRIES WITH A DEVELOPED LEGAL SYSTEM.
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—Dr. Csilla Kollonay Lehoczky
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for example, some of the countries today we call the “third world,” or where there is fundamentalism present, any attempt to change or break traditional cultural models, especially if it’s done very rapidly, results in a death grip on the old ways. Whenever that veneer of paternalism is ripped away, those that are the most threatened try to regain the status quo,” says Cohen. Within marriage there are other issues, like nonconsensual sex or rape. The legal systems of Kenya, Ghana, Ethiopia, and Nigeria permit nonconsensual sex during marriage. In addition, The Centre for Reproductive Rights names Cote D’Ivoire and Benin as nations that do not recognize rape during marriage. Nepal only recently changed their laws on marital rape. In 2002, the Forum for Women, Law and Development (FWLD) brought a case to the Nepal Supreme Court invalidating the provision of the criminal code that allowed men to rape their wives. The Court ordered the government to outlaw marital rape, although the penalty was set at only six months in jail. Dr. Csilla Kollonay Lehoczky, professor of law at Central European University, explains the historical background of nonconsensual sex in marriage. “It is true that marital rape has been an exemption from criminal punishment of rape up to the latest times, even in countries with a developed legal system. It originated historically in part from the perception of women as property of the man (first of the father and later in marriage, which was more of a sales contract between the father and the husband than a freely consented relationship between the spouses), and therefore at free disposal for his use,” says Lehoczky. “[Although it must be
PROFILES IN DIVERSITY JOURNAL
May/June 2013
said that] the acknowledgement of the personal dignity, autonomy, and self-determination of all human beings does not permit treating anyone as a commodity and marriage cannot place women under the hierarchical power of the man.” Obedience issues also include honor killings, in which someone is hired to or a family member murders a female because of behavior or alleged behavior that is perceived to bring shame on the family. Many nations have not enacted legislation to prevent these crimes, inadvertently overlooking honor killings altogether. Some countries even sanction them in certain cases. In Haiti, for example, the law allows the murder of an adulterous wife by her husband. On a related issue of marriage, polygamy, long seen as a peculiar practice of fundamentalist sects in the West, is still practiced widely in Africa, Asia, and the Arab World. Polygamy is even sanctioned by the African Union. As stated in the African Protocol on Women: “[M]onogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including in polygamous marital relationships are promoted and protected.” As in other cases favoring religious freedom over female discrimination, the African Union cites customs and religious rights, specifically of the Koran, for why polygamy is protected. Divorce is much more difficult to obtain for a woman than a man in certain countries as well. While women may have to go through arduous arbitration, in Malaysia men are simply asked to pay a small fine to divorce their spouses. Similarly, in Sudan men do not have to see a judge to divorce, nor do they need a wife’s agreement—