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Home » Articles » Reevaluating Consent: Modern Perspectives on Marital Immunity in Sexual Assault Cases – Johnson Ogundein

Reevaluating Consent: Modern Perspectives on Marital Immunity in Sexual Assault Cases – Johnson Ogundein

consent in marital assault cases

Reevaluating Consent: Modern Perspectives on Marital Immunity in Sexual Assault Cases

Ashley had just gone through a gynaecology procedure, and she still experiences discomfort. Her husband Jacob, a conventional believer of, “I own your body as long as you are my wife,” is at the center of a troubling incident that unfolded one night in their residence.

“Leave me alone, Jacob. I don’t want to do this right now,” said Ashley.

“Well, we are married. I own your body,” he retorted.

“I really don’t want to do this.”

“You leave me no choice, Ashley.” Does the deed forcefully.

“There is a reason for the word consensual. You can’t just do anything you want with and to my body. Marriage doesn’t excuse rape. I should have total control over my own body. You just violated me now,” Ashley said, crying.

“We are married, and there is no sort of violation. It is my right,” he said, glaring coldly at her bruised body.

The above scenario may appear familiar; hence, the article will focus on Ashley’s problem.

The purpose of this article is to change the narrative that consent to marriage is synonymous with consent to sexual intercourse in perpetuity as it is a violation of the woman’s bodily integrity, freedom, and self-determination.

In light of the scenario illustrated above, in conjunction with various enactments both at the contemporary national and international level on women rights, it then becomes bemusing and bewildering that our legislature still choose to live in the 13th century when it comes to the issue of spousal rape.

Marital immunity in sexual assault cases, also known as marital/spousal rape dates back as far as the institution of marriage itself. While attempting a discourse on marital rape, it is apposite to proffer a definition of rape; rape is sexual intercourse with, or sexual penetration of, a person who is unconsenting, or who is unable to give consent, for various reasons.[1]

This definition also receives statutory flavor in the Criminal Law of Lagos State[2] which defines rape as an unlawful sexual intercourse by a man against a woman or girl without her consent. The prosecution does not just indict a person for the offence of rape and the Court sentence accordingly; the apex court while wearing her garment of finality and infallibility on a rape issue in the case of Posu v. State[3], reasoned that there are essential ingredients that must be established by evidence, namely:

(I) that the accused had sexual intercourse with the prosecutrix; (II) that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat, intimidation, deceit or impersonation; (III)that the prosecutrix was not the wife of the accused; (IV) that the accused has the mens rea, to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not; (V) that there was penetration.  Marital Rape – which this article focuses on, occurs when one spouse forces the other to have sex without consent[4].

Marital rape was not considered an offence; at best, it was seen as a private issue and not an issue that concerns the public. However, this position has changed in saner climes and a spouse can be guilty of rape against their partner. The bone of contention in marital rape cases is usually whether a spouse must seek the consent of their partner before they can both consummate their marriage.

Various statistics have shown that women fall victim of marital rape more than men, and as such, it has been regarded as a form of domestic violence. Over the years, various types of marital rape has emerged, namely: Battering Rape – when physical and sexual violence occur together or one after the other, Force-only Rape – this is spurred by a desire to exert power and control over another person; usually by acting as if sex is an entitlement, and Sadistic Rape – this involves torture or perverse sexual acts[5]

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The concept of marital immunity in sexual assault cases is birthed by various ideas which include, but not limited to; the view of the female gender as being inferior to the male gender, perception of marriage as solely for procreation and several religious beliefs.

According to a famous jurist[6], marriage is a contract and it also contains an implied term which is an irrevocable consent to sexual intercourse.  Another point worthy of note is the notion that women are properties of the father/husband and as such, rape is not an offence against the victim but a property crime against the father/husband whose wife/daughter was defiled[7].

This debatable common law rule has been established in some notable case laws. In the United States, the case of Oregon v. Rideout[8] was the first where a man was indicted for the offence of rape against his wife during the subsistence of their marriage, however, he was acquitted by the jury because a man cannot rape his wife.

Similarly, in R v. Miller[9], despite that the wife had presented a divorce petition, it was held that the consent to sexual marriage was still valid, and a conviction for rape cannot be given. There was also a case that involved a 39-year-old woman, Jenny Teeson, who discovered a flash drive with videos of her husband drugging and penetrating her with objects.

In one of them, her four-year-old son was next to her. After turning in the videos to the police, he got charged with sexual assault against an incapacitated victim, but the charges were dropped after Minnesota’s marital rape exemption was used to defend him.[10]

This old rule has now been enacted in our legislations in Nigeria – except for the Violence Against Persons Prohibition Act 2015 (The Act) which is applicable only in the Federal Capital Territory[11]. The Criminal Code[12] and Penal Code[13] and criminal laws of the respective states[14] of the Federation all recognize marriage as a statutory defense to a charge of rape.

By judicial exposition, the Supreme Court also acknowledged this stance in the case of Posu v. State[15], when the court listed one of the elements of rape to be sexual intercourse by a man with a woman who is not his wife, as such, marriage is considered a defense to rape in Nigeria.

Marital rape can be more traumatic and abusive than stranger rape; suffering at the hands of a spouse, who is usually a source of trust and care, produces feelings of betrayal, disillusionment, and isolation in the woman[16]. The spousal exemption to rape statutes is a grave injustice and adds to the trauma of marital rape.

A wife is not able to quickly secure protection on her own; she must wait for the divorce process to take its course to obtain relief, during which time she remains endangered. The rape law exemption, therefore, removes a wife’s right to abstain from sex and subjects her directly to the dangers of sexual violence[17].

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Due to this protection, some men perceive violent sex as a way of vengeance against the wives, regardless of the health status of the wife. It also won’t be out of context to reiterate that victims, like Ashley, go about with indelible scars in their hearts, because, without any iota of doubt, it’s an unforgettable experience and each time she remembers, she regrets being a woman. Ashley’s plight is just of the many instances that women get violated despite going through various sorts of emotional and mental issues and the height of the disrespect is that the society is not even taking any steps to correct the wrong.

The judiciary, often perceived as the last hope of the common man, has shown reluctance in addressing the matter at hand. Victims of marital rape, seeking the justice they rightfully deserve, encounter a hesitancy within the Courts to embrace the stance that marriage should not serve as a defense to rape.”

In our contemporary world, considering the change in the societal attitudes towards marriage, it is the opinion of this writer that a concept like marital immunity should now be extinct. Marriage is no longer viewed as a form of contract arrangement between families, rather, as a medium of companionship between a man and a woman.

The public is also not relenting in the sense that there are various groups and associations that have been formed solely for the fight for the right of a woman to determine what happens with her body. Sometime in 2022, the Supreme Court of India pronounced that Rape also encompass Marital Rape[18]

In addition, courts in other jurisdictions have also tilted away from the old common law rule that a man cannot rape his wife. The case of R v R[19] is a good example. The House of Lords upheld the defendant’s conviction of marital rape. The defendant’s union with his wife became strained cohabitation ceased between the two of them with the wife leaving a note of her intention to get the marriage dissolved. Not long after, the defendant broke into the house where his estranged wife was living and attempted a forceful sexual relation with her. He also assaulted her. He was arrested and charged for the offence of rape and assault occasioning actual bodily harm.

He pleaded not guilty to rape, but guilty to attempted rape and to the assault charge and he was sentenced accordingly. R appealed the conviction for attempted rape and his appeal was dismissed as the court held that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim. Still dissatisfied, R appealed again to the House of Lords. His appeal was also found lacking merit and he was convicted for rape.

Similarly, in R. v. Clarence[20] Justice Field stated that “there may, I think, be cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime.” Id. (Field, J. dissenting). In the same vein, the case of R. v. Clarke[21] also dealt directly with the marital rape issue. This case allowed for the indictment of the husband for the rape of his wife when they were living apart under a court-issued separation order.

These decisions can also be entrenched in our legal system if we have laws that are not in support of the contrary. There are numerous laws to that effect in saner climes but in Nigeria, The Act which applies only in the Federal Capital Territory is the only enactment that recognizes marital rape in Nigeria as the meaning of rape under the act does not include a marital immunity. It is the submission of this writer that various state houses of assembly can also domesticate same in their various states or if the National Assembly can make the Act applicable in all states in the federation.

Scholars have also put forward that women experience post-traumatic stress disorder (PTSD), depression, higher levels of anger, fear, and guilt, and begin to hate their bodies, therefore causing their self-esteem to drop. Despite the argument that women who are raped by their husbands suffer less, because they have already consented to having sexual relations, it is the opposite. Marital rape victims suffer more severe psychological consequences and for a longer period than those who were raped or assaulted by a stranger.[22]

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In light of the aforesaid, it is the duty of every individual to ensure that our society attains the stage where women are afforded the respect and dignity they are entitled to by virtue of their existence as humans – this also includes their right to determine what happens with their body.

This duty on us begins with conversations evolving around marital immunity, creating awareness on the implications of marital immunity and its effect on victims – you can begin this by sharing this article and also being informed about legal reforms as regards marital immunity.


The information provided in this article is for general informational purposes only. It is not intended to constitute professional advice or services. Any reliance on the information in this article is at your own risk. The author and publisher make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability of the information contained herein.


[1] https://legaldictionary.net/rape/

[2] Section 260(1)

[3] (2011) 2 NWLR (Pt. 1234) 416

[4] https://www.marriage.com/advice/domestic-violence-and-abuse/marital-rape-all-you-need-to-know/ last accessed 31st January, 2024.

[5] https://www.healthyplace.com/abuse/rape/marital-rape-spousal-rape last accessed 1st February, 2024.

[6] Lord Hale in 1736 (the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract).

[7] https://lawverse.com.ng/resources/news-research/marital-rape-in-nigeria-a-comparative-analysis-to-other-jurisdictions/ last accessed 1st February, 2024.

[8] 303 Or. App. 504

[9] [1954] QB 282

[10] (Smyth, 2019)

[11] Section 27, Violence Against Persons Prohibition Act, 2015

[12] Section 357, Criminal Code Act, 2004

[13] Section 282(1)(d) & (2), Penal Code

[14] Section 260(3), Criminal Law of Lagos State 2015

[15] (2011) 2 NWLR (Pt. 1234) 416

[16] D. FINKELHOR & K. YLLO, LICENSE TO RAPE: SEXUAL ABUSE OF WIVES 18 (1985)

[17] Sonya A Adamo THE INJUSTICE OF THE MARITAL RAPE EXEMPTION: A SURVEY OF COMMON LAW COUNTRIES

[18] https://edition.cnn.com/2022/09/29/asia/india-supreme-court-marital-rape-abortion-intl/index.html

[19] (1992) 1 AC 599

[20] 22 Q.B.D. at 57

[21] [1949] 2 All E.R

[22]https://scholarworks.sjsu.edu/cgi/viewcontent.cgi?article=1117&context=themis#:~:text=Despite%20the%20argument%20that%20women,or%20assaulted%20by%20a%20stranger.


About Author

Johnson Ogundein is a penultimate year student at the Faculty of Law, Lagos State University. He is an avid reader and a versatile student of the law. He is a propose driven, tenacious, resilient individual and a great team player.

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