“Today, the definition of rape is completely different," said the Delhi High Court on Tuesday after hearing arguments on whether a husband could rape his wife – and if this was in fact legal. 

India is one of a handful of countries that does not consider rape a crime if it happens between two people who are married, with the exception of the wife being under the age of 15. 

Key to the court’s decision are questions of whether a union of marriage implies consent, the protections each person in a marriage has from each other, and ultimately if rape should be defined differently when the individuals are married. 

As the court continues to hear arguments on August 8, we take a look at three facts about how countries have dealt with the issue of marital rape around the world. 

Rape cases are notoriously hard to prosecute, with juries and legal systems grappling with issues of consent, intimidation and the line between sexual assault and rape. These lines become even more difficult when the individuals involved are married, with many still wrongly believing that consent is automatic in marriages. In response to reports that Ivana Trump once accused her former husband Donald Trump of rape, Trump’s former attorney Michael Cohen said “…of course, understand that by the very definition, you can’t rape your spouse.” 

In 2016, Ireland sentenced a man to 10 years for raping his wife, just the second spousal rape conviction in the country since it was outlawed in 1990. In India, a 2018 survey by the Union health ministry said that among married women who had experienced sexual violence, 83 percent said it came at the hands of their husbands. 

Countries have been slow to recognize marital rape 

It was only in the 1980s when countries started to change laws around marital rape. For much of history, husbands have been exempted from being prosecuted for the act. South Dakota was the first US state to criminalize spousal rape in 1975 and North Carolina was the last in 1993. The UK made it criminal in 1991 and several European countries including France, the Netherlands and Belgium moved to do the same after the European Parliament’s Resolution on Violence against Women issued a call for action in 1986. 

The legacy of the marital rape exemption 

The idea that women could not be legally raped by their husbands was first put forth by Sir Matthew Hale in 1736. In the legal treatise “The History of the Pleas of the Crown," Hale writes “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 up herself in this kind unto her husband, which she cannot retract.”

This definition of marriage, consent and rape would impact all countries impacted by, or inherited British common law for centuries, including the United States, Australia and India.