“I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that,” the judge said.
Women have fought long and hard for their rights to be acknowledged as an adult who can make their own decisions. Voting and property rights were crucial issues that have been debated in the past and women got their victory when they were acknowledged as equals in those regards. Now, one of the pressing issues that society needs to have a dialogue about is marital rape. If we continue to believe that men have the right to sex with their wife just by the virtue of being wed it would take us back years. And, when such a statement comes from somebody who upholds the law, it is a murky space we fall into.
Recently, a judge in the UK said that a man has the “fundamental human right” to have sex with his wife. The comment was made by Justice Hayden, who had been presiding over a case where a man was to be prevented from having sex with his wife of 20 years because she may no longer be able to give her consent, according to the Guardian.
“I think he is entitled to have it properly argued.”
The marital or spousal rape law is a form of sexual assault under the UK law under the Sexual Offences Act 2003. Marital rape is when an "individual commits a sexual act without the consent of their spouse or their ex-spouse, or against their will. If someone is unable to consent to a sexual act or their consent is obtained by force, threat or intimidation, the sexual act is committed without consent," explains Nick Titchener, director and solicitor-advocate at a UK law firm. It is a form of domestic violence.
However, Britons seem confused about what constitutes rape, according to a YouGov survey of 4,000 people commissioned by the End Violence Against Women Coalition, reported Evening Standard. One-third of the respondents think that non-consensual sex is not rape if there is no violence while one in five women said it would not be rape if the victim had flirted on a date, which problematically makes date rape easy to get away with.
In this instance, the woman has a learning disability and may no longer be able to consent to sex. The case brought to the court of protection, which considers cases where people don't have mental capacity to decide for themselves. The case was brought up by the lawyers of a council's social services after her condition deteriorated. The social service authorities have argued that she can't freely give consent anymore. The lawyers suggested that a judge would be able to prevent the husband from having sex with his wife to make sure she is not raped.
Judge Hayden was told that the man had offered an undertaking saying he would not have sex with his wife. However, the judge wants to go through the evidence in detail and hear arguments from the woman's lawyers, the man, and the council involved.
It is not the fact that the judge wishes to go through the evidence that angers people, including lawmakers, but the remark he made about a man having the fundamental right to sex with his wife.
One of the British MP's, Labour MP for Bristol West, Thangam Debbonaire, tweeted, “This legitimises misogyny and woman-hatred. A judge stating ‘I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife’. No man in the UK has such a legal right to insist on sex. No consent = rape.” According to the judge, this could put the man in a position where he would face jail time for breaching the order or undertaking. He further added that this would be hard to police.
The individual case sounds complex and needs careful thought. But no judge should give out this sort of misogynist and inaccurate message. What it says about his values is awful - more important human right than right to bodily integrity? Really?— Thangam Debbonaire (@ThangamMP) April 2, 2019
Thangman wrote to the Lord Justice in charge since this remark sets the wrong precedent.
I have written to the Lord Justice in charge of family courts, about a judge's recent comments on a man's "right to have sex with his wife". Words matter. The UK has low rates of conviction for alleged rape, these comments reinforce dangerous attitudes. https://t.co/pEW3OXLVkO pic.twitter.com/3rHHQFY8RK— Thangam Debbonaire (@ThangamMP) April 3, 2019
Other individuals also spoke up against the remark by the judge.
I hope you'll also raise the other element he mentioned, the state's right to monitor sexual activity, as that would be pretty horrific too.— Steve Cotterill (@SteveCotterill3) April 3, 2019
However, there are others who tried to rationalize what the judge said. Human rights lawyer Shoaib Khan explained that the "human right" exists to stop the government from interfering in family life. "If the Government banned a married couple from having sex, it would give rise to a viable human rights claim. There is therefore a human right to have sex with one’s spouse," he wrote in a post. He further added that human rights are "rights that individuals have against the state" not "rights people have against each other".
This individual case is complex and needs a great deal of consideration but of all the fundamental rights that humans have, there is none that ensures that a man can have sex with his wife because access to a woman's body is something that she alone can decide. The law can't tell men that just because they are married to a woman, they will be guaranteed sex with her, which is what the judge seems to be implying. If that were true, then marriage would no longer be about mutual trust. of which consent is an important part.