Criminalization creates widespread repercussion

Criminalization of a husband for marital rape has raised a few questions. To what extent can the government meddle in private life? Doesn’t the court’s ruling on the sexual life of married couples infringe upon the people’s right to pursue happiness guaranteed in the Constitution? Isn’t sex between a husband and a wife a conjugal agreement? Will not abuse of spousal rape cases occur?

Society has begun to discuss these soul-searching questions as the Korean courts are leaning toward criminalizing marital rape.

The Seoul Higher Court has issued a 30-month imprisonment and a three-year suspension of execution against a 40-year-old husband, named a Chung, for raping his wife while threatening her with a knife under the influence of alcohol.

The court said that the current criminal law does not exclude a married couple from the rape law. It added that having sex with a wife through violence and threat could not be tolerated and accepted as a husband’s prerogative.

Chung has yet to decide whether to appeal the case to the Supreme Court.

Last December, a 21-year-old husband Kang also received a three-year jail term with a four-year suspension of execution for his forcible sex with his wife. Kang decided not to appeal the case to the highest court.

In 2009, a husband killed himself after receiving a 30-month imprisonment sentence for raping his Filipina wife after wielding a knife. It was the first landmark ruling that criminalized husband-wife sex as a rape.

At that time, the court justified its ruling because their marriage broke down not because of state intervention, but because of the rape.

Despite the recent rulings, society is divisive over marital rape.

The Supreme Court has upheld the view since 1970 that sex between a husband and wife could not become rape. Society had undergone a sea of change over the past four decades. The lower and higher courts have recently criminalized sex without the consent of a wife.

Spousal rape could be prosecuted in more than 100 countries. More than 32 countries have made marital rape a specific criminal offense. More than 70 nations do not exempt marital rape from general rape provisions. A few countries criminalize marital rape only when spouses are judicially separated.

The UN Higher Commissioner for Human Rights established marital rape as a human rights violation in 1993. Woman's rights advocates regard the control of marital intercourse as the core part of equality.

Korean society had so far stood behind a concept of a spouse’s conjugal rights to sexual intercourse with each other. Some people say it is not justifiable for the state to meddle in the intimate-sexual life of married couples. They also argue that the court will have difficulties in proving the rape if the defense claims consent. It is difficult to conclude which sex is rape and which sex is not in a married couple as their sex is recurring.

They argue that the perpetrator may be charged with such crimes as assault, battery, or spousal abuse, not marital rape. They say spousal rape could be criminalized only if the couple is legally separated. The court could back divorce instead of criminalizing a husband on charges of spousal rape.

Korea is moving toward a multicultural society. Many Korean males were married to Southeast Asian women. Marital-rape litigations might increase due to cultural differences and for extortion.

It is necessary for Korea to accept the global practice of treating non-consensual husband-wife sex as rape. The court rulings have widespread repercussions, imagined and unimagined, however. Social consensus is necessary before legalization.