Advances in Economics, Business and Management Research, volume 130

3rd International Conference on Law and Governance (ICLAVE 2019)

Comparative Perspective on Marital Rape:

Western Law and Islamic Law
Ainunnisa Rezky A.1 Andini Naulina R.1 Raditio Jati U.1*
1
Faculty of Law, University of Indonesia, Depok, West Java 16424, Indonesia
*
Corresponding author. Email: [email protected]

ABSTRACT
Marital rape is something that is currently being widely discussed in Indonesia. The existing dialectical debate
is due to the Draft Criminal Code (RKUHP) and the Sexual Violence Eradication (RUU PKS) which lists the
matter. Rape in marriage can be seen in terms of western law and Islamic law. This is triggered by the
existence of feminists who reject western law, that the husband can have sexual relations with his wife with
the threat of violence or without the will and consent from the wife. This rejection is based on the law, which
initially stated that in a husband and wife relationship there is no such thing as rape. In Islamic law, marriage
ties will give rights and obligations to husband and wife to be able to have sexual relations with certain
manners. Therefore, this paper will discuss the comparison of the views of western law and Islamic law of
rape in marriage. This paper will also provide advice on the regulation of rape in marriage in Indonesia.
Keywords: marital rape, sexual violence, feminism
whenever his or her spouse request for it. Therefore,
1. INTRODUCTION Conservative Islamist consider the regulation of marital
rape in national law would allow the state to extremely
Marital rape issue in Indonesia constantly triggers endless intrude the privacy and the sanctity of the marriage
dialectic discourse among people. Indonesian people institution. This argument is arguably supported by some
commonly split into two mainstream preferences, people theorists. Some said that marital rape should not be
who supports marital rape issues to be regulated in regulated in RKUHP or RUU P-KS because it has been
national law and people who against it. As a sociological stated in Law Number 23/2004 about Marital Violence
basic knowledge, Indonesia is the only outside Arab Eradication. Even though it is not strictly stated as marital
country with the greatest number of Muslim populations, rape, they said marital violence in the law should interpret
therefore conservative Islamist wing who entirely denies marital rape as an inclusive definition of the marital
marital rape issue regulation in national law still hold a violence. On the other hand, reformative Islamist tend to
compelling position in the society. However, Islamist in not be caught on snare in the debate between the liberal
Indonesia not only consisted by conservative wing, but wing and conservative wing. They provide critical notes to
also reformist wing and liberal wing. Liberal Islamists both of the sides. To response the conservative wing, the
typically align to common liberal movement who purely reformists firmly stated that national regulation of the
adopted western perspective on consensual or non- marital rape issue is not a threat to the privacy and the
consensual sexual interaction which eventually determine sanctity of the marriage institution, the law should be seen
if rape does exist. On another side, Islamists that are more as protective coverage from abusive marriage to spouse,
aligned to reformist movement offer a more moderate both to the wife and the husband. To response the liberal
perspective: they agree that marital rape should be put in wing, they said that the legal framework to sustain the
national law but remain opposing the present legal philosophical goals of the law should not overlap the
framework of the regulation. established one in terms of procedure law. The new law
Discourse about marital rape in Indonesia find a more may include a more responsive evidence verification
concrete shape when legal draft of penal code revision procedure as the general case of sexual violence has its
(RKUHP) and sexual violence eradication (RUU P-KS) own complexity, but it should never open a crack so that
are published. As mentioned above, perspective preference everyone can proclaim himself or herself as a victim of
in Indonesian society about marital rape issue is branched sexual violence. If the law is not deliberately crafted and is
into three preferences: Liberal, Conservative Islamist, and discussed in a blind haste, it will provoke legal issues in
Reformative Islamist. On the contrary to Liberal side, the practice, such as the complexity of evidence
Conservative Islamist proposes the idea of spouse verification and the potential of over criminalization.
obligation to engage in a consensual sexual interaction

Copyright © 2020 The Authors. Published by Atlantis Press SARL.

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In conclusion, the plan to regulate marital rape issues in judge someone as a criminal until proven guilty. The myth
national law generate perpetual dialectical debate among of rape should be explained to understand US rape law.
various kind of society in Indonesia. The debate is led by Society believe the real rape have several criteria, it can be
three big motions which is ruled by Liberal wing, a stranger immediately approach someone with a weapon,
or a woman who rated to rape because her revealing
Conservative Islamist wing, and Reformative Islamist
clothes, taking drugs or drink, and walking alone at night,
wing. The Liberal takes extreme lead to propose marital also for the raped victims with observable injuries and
rape issues to be regulated in national law, while The report to the police. The rape law comes from the abusive
Conservative take extreme lead to oppose it. To moderate act from a male to a female but not his wife to do sexual
the debate, The Reformist takes stand on criticizing the intercourse. It can be any form of sexual intercourse. Court
two wings. tended to think the female is unchaste. So, the male acted
were not the court's consent [4].
Sir Matthew Hale, a British Chief Justice, wrote rape is
1.2. Research Method and Benefit easy to be made, difficult to prove, harder to be defended
by the party accused, nonetheless he still innocence [4].
Conduct of this research is based on literature and press- After that, the US asserted to use the statement as “Lord
based sources research. This research aims to provide an Hale Jury Instruction.” As a result, for the sexual violence
alternative perspective by providing comparative analysis cases US judges gave juries an instruction. The juries
of the two legal traditions: West Law and Islamic Law. required by the law to examine the women in this case
This research will breakdown each of the legal traditions’ with caution. Juries must not be sceptic of the suspected
perspective on marital rape in a dialectic manner so that victim. His statement was strengthen by John Frederick
the synthesis of the debate would produce theoretical basis Archbold, he stated that husband cannot be guilty by
to bridge the gap between each of the perspectives. raping his wife [5].
Before the law reform, marital rape still an exception,
because the wife treated as husband property. It often
1.3. Paper Structure involves by several violence, such as physical violence and
threats of violence. Since the rape law originally came
This research focus on discussing how marital rape issue is from British Common Law which stated wife as husband
constructed in West Law and Islamic Law. Initial problem property, the law protected the husband from prosecuted
that is popped up and will be assessed through the research by the raped wife [6]. So, the marriage institution is a
consensual thing between the wife and the husband to do
is the perspective gap between West Law and Islamic Law
sexual interaction even though the wife not willing to do it.
on marital rape issue that triggered endless dialectical From early 1960, not every state protected wife by marital
discourse among diverse layers of community in rape. These rape law reforms adopted by Model Penal
Indonesia. In order to set a clear border of research Code in 1962.
limitation, this research only tries to answer a question: Women increased their power to change the law. In 1970s,
how could the perspective gap on marital rape issue with the influence by feminist activist the women have two
between West Law and Islamic Law be bridged? points for the national law reform about rape state laws.
The points has one purpose, to exempt women from the
sexual victimization. In this era, they were two points of
2. BACKGROUND women victimization, sexual assault and physical assault
from the husbands [3].
2.1. 1. Marital Rape on Western Law The doctrine about wives as husband’s property is no
longer acceptable, because the women declared they have
Perspective authority to their own body. They want to enjoy and refuse
sexual relations as equal to their husbands. As a result, if
Rape can be defined conceptually as any sexual intimacy
the husbands want to have sexual relations with spouse,
forced on one person by another [1]. On the other hand, in
they can refuse it. If their husband forces them to do that,
Webster's New Collegiate Dictionary, rape is sexual
it will categorize as rape [7].
intercourse with a woman by a man without her consent
Some of the states put marital rape as a criminal while
and chiefly by force or deception [2]. From cultural
others still not exemption it from the rape. On July 5 1993,
perspective, rape can be described as "culturally disvalued
50 states rule that marital rape became a criminal law
use of coercion by a male to achieve the submission of a
although 30 states, per 2005, still exempt husbands from
female to sexual intercourse. From every definition can be
rape the wives [8]. Most of the states not using force as a
concluded that women can be raped by any man by doing
reason to give the husbands exemption, but the states use
sexual intercourse forcibly. However, court has their own
conditions for the wives who have vulnerable conditions
concept marriage cannot be judged as a reason for husband
and it is legal to have sexual relations without their
to rape his wife [3].
consent [9]. Some states in US, like Michigan, Oklahoma,
United States (US) has a combination of law from
Maryland, and Washington legally give exemption to
parliament and interpretation of verdict. The law will not
husbands have intercourse with their spouses when they

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are drugged [10]. Maryland even decide to remove society who are single. From the verses told before, it
exemptions for all sex as criminal. signifies that marriage is meant for attainment of peace of
Minnesota is the latest state which the Legislative voted to mind and mutual love and affection. Islam recommend
eliminate this exemption to prevent those case from humankind to married. The main advantage of it is to
prosecute [10]. One of the cases in this state is Jenny contribute through legitimate means to the continuity and
Teeson case. She brought her husband to police because preservation of humanity [15]. Prophet Muhammad SAW
she found videos which her husband recorded. On those has called upon his nation: "Marry, so your number
videos, her husband did sexually assaulted by penetrated increases.” and the practice of marriage is an answer to his
her with an object when she slept while her daughter slept call. With marriage, it avoids deviation or to
next to her [11]. Her husband ended up only with maladjustment due the failure to fulfil sexual urge.
misdemeanor because of the exemption. Deviation is dishonourable and is strictly forbidden in
However, the marital rape law in the west law still have Islam. The Holy Quran in surah An-Nur verse 30 and 31
loopholes. The marital rape law in US does not regulate stated man and women need to reduce [some] of vision
about the victims’ consent, age, relationship, using force or and guard private parts from forbidden things (haram). In
natural penetration, also the timeframes to report. Feminist other respects, everyone should have a partner for
activist tend to change the rape law to protect women from satisfying their sexual needs in a secure and serene
domination of male in marriage institution. Some of the environment, which can be obtained through marriage.
states in US still count it as an exemption because of the The Prophet stated whoever gets married has safeguarded
marital bond and to minimize the chance to prosecute the half of their religion.
husbands by the marital rape. In the United Kingdom, In Islam, the husband has the right to ask his wife to have
marital rape is an illegal thing. sexual intercourse with him and so does the wife.
According to Islamic jurisprudence, the sexual intercourse
is one of the spouse’s duties in the marriage institution [7].
2.1. 2. Marital Rape on Islamic Law Malik jurists said that the sex intercourse is compulsory
Perspective between a man and a lawful women if there would be no
excuse [16]. Shafie jurist viewed that the sexual
It has become a historical fact that the position of women intercourse is not obligatory, and it should be at least once
for a long time is not equal with men in terms of because the sexual intercourse is spouse’s right [17].
relationship. Even in some old traditions such as in pre- Hambali jurist as mentioned in Kashful Qana’ opined that
Islam Arab, woman was considered more as a property the husband should do lovemaking with his wife once in
rather than a human being. The similar condition could every four month if there would be no excuse, if the
also be found in other parts of the earth's surface [7]. The intercourse is not compulsory, it is not to be al-illa’ for
struggle for gender equality has run for decades and lots of who leaves the sex as a right due to the compulsory
progress has been achieved. From one point of view, Islam reason. The early Muslim legal scholars try to show that
is praised for its historically liberating role for women in sexual intercourse is one of the spouse’s rights, further
Arabia and elsewhere. Yet another perspective hold either Islam allows it in the marriage institution.
the religion or some of its practices and practitioners Sexual intercourse is also one of the joint rights between
accountable for the lower status and inferior legal rights of the husband and the wife, even there are some Islamic
women in Islamic countries than other parts of the world. scholars opine that this right is the ultimate right to the
Still other views fall somewhere in the middle of these two husband only. God has created sexual desire inside the
positions [12]. As a historical text, the Qur’an was husband body and on inside the wives. Thus, both parties
revealed in the context of seventh-century Arabian have the right to have sexual intercourse because it does
patriarchy and anarchy. In its effort to reform society, the not belong exclusively to one party than the other. Prophet
Qur’an addressed social, political, economic, and moral Muhammad said in several hadiths which is narrated by
imbalances, offering a model of greater reciprocity and Al-Bukhari that if a man invites his wife to sleep with him
explicit statements regarding reforms to the realities of and she refuses to come to him, then the Angels send their
women’s lives. The foundational idea of gender equality, curses on her till morning. Also, if a woman spends the
then, is derived from the Qur’anic worldview [13]. night deserting her husband’s bed (doesn’t sleep with him)
Marriage in Arabic means az-zawaj or an-nikah, and every then the Angels send their curses on her till she comes
Muslim school has a different definition in term of az- back to her husband [18]. Thus, it is noted that sexual
zawaj, yet the definitions are not much different as well as intercourse is a legal, moral and it is a religious duty of
the meaning refer to the same fact and jami’ wa mani’ wife to submit herself to her husband if he requests for
(universe and deterrent). Marriage is a legal and social sexual intercourse. The wife can’t withhold her consent in
contract between two individuals [14]. In surah Ar-Rum having sex with her husband if she’s in perfect condition
verse 22, Allah says that one of His signs is that He has and healthy. Furthermore, if she refuses his request
created wives for male that may can be find peace of mind without any valid reason, the husband can lodge a
in them. In another verse, said that He created a person complaint about the wife to the Qadi and Shariah court
from a single soul, and made therefrom its mate. In surah that his wife is doing nusyuz (disobedience).
An-Nuur verse 32, it is stated to marry those among However, there are some situations in Islamic
jurisprudence when a wife has the right legally to refuse

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the sexual intercourse. If the husband requests the sex known within the western law as spousal rape, which is
intercourse, the wife must refuse although both parties referring to an unwanted sexual intercourse by force,
consent to do it. In other words, they are considered sinful threats of force, or physical violence, or the partner is
if the wife does not refuse the request in having unable to give consent [7]. Proving rape by a spouse can
intercourse. Some of the exceptional situations are during often be more difficult, because it can be more difficult to
wife’s menstruation period, during her parturition period, prove that the victim did not give her consent. Married
during the day time of Ramadhan, while she’s performing couples usually have consensual sex, which can take
Umrah or pilgrimage and she’s in ihram condition, if a evidence of marital discord or separation to show that the
husband put away his wife by likening her backs to the sexual activity was not non-consensual [20]. Since sexual
backs of his mother and doesn’t do expiation yet, or if she intercourse is considered as a private matter, the victim of
has the knowledge that the husband had contracted marital rape (typically the wife) for a long time prefers to
sexually transmitted diseases. keep silent. One reason for the silence about marital rape is
Considering its fundamental functions, sexual intercourse because throughout much of history, in many countries
is sacred in Islam and it will be counted as part of worship and cultures around the world marital rape was an
to Allah as long as being carried out in line with the rule of impossibility
Allah (sharia). Based on the rule of sharia, only sexual Husband is banded with the obligation to treat her wife
intercourse conducted by husband with his wife is lawful well or known as mu'asyarah bil ma'ruf. In sexual matters,
(halal) hence, any sexual activity carried out outside the the doctrine of mu'asyarah bil ma'ruf can be applied by
marriage is unlawful or haram [7]. The Prophet respecting the need and the willingness of the wife in
Muhammad (saw) said, ‘Indeed, your Lord has certain sexual matters. Meaning to say, the husband is obliged to
rights over you, and your family has certain rights over fulfil his wife's sexual desire on one side, and on the other
you and your own soul has certain rights over you, so give side he is not suggested to force her wife to serve him
to each according to the rights that are due.’) (Sahih sexually if she is unwilling. It is better for the husband to
Bukhari 3.189). This Hadith is a reminder for the necessity sacrifice him (to be patient) self rather than sacrificing his
of balancing on how to fulfil the rights of others in the wife [7]. In the Islamic context, rape has two sides. The
family or community, the rights due to our own souls, and first side states that in marriage there is a division of rights
due to our Lord. Husband and wife rights are to have and obligations between husband and wife. And it is true
sexual intercourse. that the wife must always be obedient and obedient in
In Islamic law considers rape as a serious sexual crime. To serving the interests and desires of her husband, whatever
define rape in Islamic Law, it is necessary to investigate happens. If this does not work, it can be called nusyuz
the juristic definition of illegal sexual intercourse or zina, (disobedience). The second point is that the rights and
because most jurists take it into account as part of the obligations of couples in the marriage bond are balanced,
definition. Knowing the legal meaning of zina is crucial understood, valued, and respected. In this opinion rape
since a conviction is based on what constitutes the crime occurs when there is penetration, and it can happen to
[19]. The definition of rape in Islamic jurisprudence is those who are not bound by marriage bond. The other side
slightly different in meaning and not the same as the stated that rape in marriage is a crime where the offender
western definition. Since it consists of forced sexual can be arrested using articles about violence, the third
intercourse, most of the classical jurists called it zinā bī l- view is that rape in marriage is an act that is contrary to
ikrāh, that is, forced unlawful sexual intercourse [19]. human rights, so special laws are needed.
Rape in Arabic is referred to al-ightisob, the origin word of
ali-ghtisob refers to who’s taking property of others by
force or violence. In the general custom of Islamic society, 2.1. 3. Attempt to Regulate Marital Rape Issues
these words are used to refer rape offence. Rape in Islamic in Indonesia
jurisprudence define as forcing someone to commit
adultery or sodomy and therefore hudud punishment will Law in Indonesia that provide regulation on marital rape
be imposed on the rapist. The meaning of zina has been issues remains unclear. Some law theorists said that Law
defined by the Malikites, Shafi'ites, and Hanbalites, as the 23/2004 about Marital Violence Eradication has a
unlawful and mutually consensual vaginal or anal regulation on marital rape even though not strictly stated
intercourse between a man who is sane and who has marital rape in wording structure [21]. They believe that
reached the age of puberty (bulgh) and a woman who is the term interpretation of marital violence itself has
not in his ownership [19]. Rape, on the other hand, is included marital rape, therefore marital rape issue does not
vaginal or anal intercourse by force or against her will or suppose to be regulated again both in RKUHP and RUU
no consent from one of the parties and no deliberate action P-KS. However, that kind of regulation often seen as
from the victim. protection uncertainty to the victim. It happened because
The combination of words “marital rape” is a new term not every law enforcement officer has equal capabilities to
and Muslim society has never heard of that following term perceive the case as it should be perceived [22]. To tackle
according to Islamic jurisprudence or books. Most of the the issue, people think that the law should be enhanced so
Muslim society cannot imagine the existence of rape could that the officers have a more vivid and rigorous guidance
also happen in marriage institution, since the partner have on how they should handle the complexity of the sexual
legal right to have sexual intercourse. Marital rape is

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violence case [23]. The efforts to enhance the law become both wing by criticizing them. The reformist stated that it
clearer when RKUHP and RUU P-KS are crafted and is not right to base the definition of marital rape issues
published. Specifically, marital rape issue is regulated in solely on consensual relationship perspective as the matter
RKUHP and not RUU P-KS. Article 480 RKUHP ruled of fact that sociological reality in Indonesia believe in
that a husband or wife that is convicted guilty of doing transcendent relation with God, both in Islam religious
marital rape to his or her spouse will be jailed for at most belief and non-Islam religious belief. On the fact of
12 years. Though major opinions of the society do not historical matters, Indonesian society is built on the grow
appear to oppose the regulation placement of marital rape and the interaction of diverse belief system, even long
issue in RKUHP, some theorists stated that it should be before Islam get in the Indonesian soil. We know that
more suitable if placed in RUU P-KS [24]. The publication belief system that based on ancestor spirit (Animism) and
of those legal drafts sparks debate on the society. belief system that based on holy relics and magical object
The debate was initiated by the different angles promoted (Dynamism) do exist since long time ago. It signifies that
by Liberal wing and Conservative Islamist wing [25]. The Indonesian society cannot be separated from transcendent
people who are more aligned to liberal ideas tend to adopt relation with so-called God. Thus, including religious
West Law tradition. Philosophically speaking, perspective in the national law is a way to fit the values
development of West Law tradition is mostly inspired by that live and grow in the society. Putting pure liberal view
the idea that focus on individual freedom, gender equality, on marriage, as well as marital rape issues, might
and feminism. On the other hand, the people who are more contradict the existing living law that society sustained.
aligned to conservative Islam ideas tend to adopt rigid and The reformists also request the liberal to not recklessly
conservative interpretation of Islamic Law that focus on force the enactment of the law for the law still have some
transcendent relation to God, social responsibility, as well controversies, such as overlapping with the existing
as the privacy and the sanctity of the marriage institution. regulation, evidence complexity, as well as evidence
This contradiction of perspectives caused infinite debate verification procedure complexity. Disregarding the
between the two wings. The liberal believe that marriage is problem might arise the potential of over criminalization
solely embarked from the consensual relationship between and protection uncertainty to the marital rape issues. On
two persons, no transcendent matter is included. Both the contrary to the conservative view, the reformist said
husband and wife are in equal position. Husband or wife that husband authority should not be seen as absolute
may take lead in family-related issues as long as agreed by representative of God nor the Holy Quran. Husband is still
another party. Therefore, the marriage in liberal a human, God’s creation and not God itself, that has the
perspective has nothing to do with sanctity and should be potential to exercise bad deeds. Therefore, as the axiom
treated as general agreement as well. Marital rape issue is applies, absolute power corrupts absolutely, everyone
considered as violation to the marriage agreement. Party should be able to be supervised. Then, state power does
who conduct violation to the agreement might face both exist to supervise citizens so people will live peacefully.
civil claims and criminal charges. In that kind of relation, As stated in the Holy Quran that people should encourage
state function as the judge of the dispute arose. State each other to be patient and to do good deeds, state power
intervention indeed seen as an obligation to resolve exists to protect people from the harmful deeds. In short, if
conflict among the citizens and totally not seen as privacy the debate between the liberal and the conservative is
breach to marriage institution. On the contrary to the sustained to only withstand their opinion, legal framework
liberal side, the conservative believe that marriage is a part to create protection certainty to marital rape issues might
of religious practice. It has transcendent relations to God, never be enacted. Both parties have to compromise and
so God itself has ruled on how marriage should operate. showcase good faith to lower the tension of the debate.
Marriage is not only about two persons that is tied by The reformist has started leading to leapfrog the obstacles,
pledge to each other, but marriage also establish relations now the turn for both parties to decide.
between the newlyweds and the God. This God-related
matter is the part of sanctity in the marriage that the
conservative believes. Islam taught that husband possess 3. CONCLUSION
position as a leader in a family-related matter as the Holy
Quran textually ruled. Thus, rejection to sexual intercourse As a conclusion, it is important to note that this research is
request might be seen as a rejection to husband authority to compare between west law and Islamic law in terms or
as a leader. Marital rape that is described by liberal wing is marital rape. In west law, it is known that there’s repairing
simply defined by the conservative as a husband the position of women in many fields of life. One of
exercising his authority in the matter of sexual intercourse. which, is wife treated as husband property. Some of the
It is just the same matter as a husband who reprimand his states put marital rape as a criminal while others still not
wife because of misdemeanour behaviour she did. exemption it from the rape. Most of the states not using
Consequently, the placement of marital rape issues force as a reason to give the husbands exemption, but the
regulation in the national law is seen as state violation to states use conditions for the wives who have vulnerable
the sanctity of marriage institution. This kind of debate is conditions and it is legal to have sexual relations without
endless. their consent. On the other hand, marital rape is prohibited
Fortunately, there is an alternative to break through the in Islam. A wife who refuses her husband’s request in
debate. The reformative Islamist wing compromised the having sex without any reasonable justifications is

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considered as committing a sin. However, a husband who Rape Law, Policy, and Practice in the United States,
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[19] Dr Azman Mohd Noor, Punisment for Rape in

Islamic Law, Malayan Law Journal Articles (Malayan
Law Journal Articles), 2009, pp. 1-5.

[20] Marital Rape laws, 2019.

[21] Abdul Ficar Hadjar, Pakar Hukum Kritisi Adanya

Kesamaan Aturan Soal 'Marital Rape' dalam
RKUHP, https://www.monitorday.com/pakar-hukum-
kritisi-adanya-kesamaan-aturan-soal-marital-rape-
dalam-rkuhp in interview by Fachri Septian, 2019.

[22] Estu Rakhmi Fanani, UU PKDRT: Antara

Terobosan Hukum dan Fakta Pelaksanaannya, .
Institutional Research Direktorat Jenderal Perundang-
undangan Kementerian Hukum dan HAM Republik
Indonesia.

[23] Zumrotin Kasru Susilo, Marital Rape Jadi

Kontroversi di RUU
PKS, https://mediaindonesia.com/read/detail/263329-
marital-rape-jadi-kontroversi-di-ruu-pks in interview by
Rifaldi Putra Irianto, 2019.

[24] Syaiful W. Harahap, Opini: RUU PKS Abaikan

Marital Rape, https://www.tagar.id/ruu-pks-abaikan-
marital-rape, 2019.

[25] Zumrotin Kasru Susilo, Marital Rape Dilema Antara

Kewajiban Istri dan Hak
Perempuan, https://mediaindonesia.com/read/detail/26317
7-marital-rape-dilema-antara-kewajiban-istri-dan-hak-
perempuan, 2019.

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