Lisa Featherstone continues our marital equality series by drawing comparisons between arguments used against marriage equality and arguments used to resist marital rape law reform in the 1970s and 1980s.
In the midst of our current debate over ‘yes’ or ‘no’, many of the arguments made against marriage equality have an awfully familiar ring to them. Conservative groups have suggested that marriage equality will be the end of the traditional family and the basic building block of society. They have decried marriage equality as harmful to children. And at the other end of the political spectrum, queer theorists have questioned the need for marriage at all.
These arguments in opposition to marriage equality mirror debates that went on in the late 1970s and early 1980s, when Australian state governments began to legislate to criminalise rape in marriage. Before this, it was not illegal for a husband to rape his wife: her agreement to marriage had legally bound her to sexual intercourse whenever her husband chose. Trying to break down this eighteenth-century English legal doctrine was more difficult than we might expect, even in twentieth-century Australia.
Rape law reform was instigated by second wave feminists, who had drawn attention to the problems of sexual assault and sexual violence within Australian society. Feminist ideas were taken up more broadly, with most states re-evaluating a raft of laws around sexual violence against women and children. Rape in marriage legislation was just one of these.
While it might seem obvious to us now that a wife could be sexually assaulted within marriage, there was a surprising amount of fierce opposition to the new legislation, from various groups including Christians, conservatives and even some feminist groups. Debates about criminalising marital rape reveal deep-seated beliefs about the state of the family and marriage, just as we see in the current discussions about marriage equality.
The ‘end of the family’
The most powerful argument put forward by critics of marital rape law reform was simple and emotive: that it was a direct challenge to paternal authority and to the sanctity of marriage and the family. Radical conservative groups such as the Festival of Light (led by Fred Nile) argued that the new legislation dealt marriage a ‘crushing blow’.
Law reform was also seen as troubling by mainstream conservatives, including members of the Liberal Party. In New South Wales, for example, Senator O’Dowd of the Liberal Party suggested that his Party opposed rape in marriage legislation because ‘the law should not come between husband and wife and thereby harm marriage’. His compatriot Mr Cameron went one step further, claiming the proposed laws ‘touched directly on the traditional standing of marriage as the foundation of our community’. These ideas were common enough in the broader community, where sex was understood as central to what marriage was. As one woman told the Australian Women’s Weekly in 1980, ‘If they are together, then sex is part of marriage.’ Here, ideas of a woman’s consent and autonomy were abandoned in the face of her duty to marriage and family.
Similarly, some conservative groups expected that a woman should stay in an unpalatable marriage, even one that contained sex without consent, for the sake of the family unit. As one member of Parliament suggested, ‘even after such an appalling event as rape in marriage, some marriages can be saved. However imperfect the institution of marriage may be, it is far too important to society for it to be endangered’. This argument does not deny that rape could and did occur within marriage. Instead, it was more important to maintain the family intact, for the sake of children, and for social and community cohesion.
Radical reconceptions of marriage
Opposition to marital rape law reform came from other groups too, encompassing both the far left and the right. This is reminiscent of the disjunctions in today’s debates over marriage equality, where queer theorists have suggested that marriage is not an aspiration for many in the LGBTI community. While it is certainly true that marriage can be a flawed and heteronormative institution, there are valid concerns that this view may fragment the ‘yes’ vote.
This split of the left was also seen in the debates over rape in marriage in the 1980s. Feminists had been central to rape law reform, yet not all feminists were in favour of criminalising marital rape. Some radical feminists opposed marital rape law reform, for they held deep misgivings of the state’s ability to intervene and deal with women’s issues in a patriarchal culture. Radical feminist groups argued that current laws on domestic violence, for instance, were sound, but still failed to protect women. On these grounds, extending laws around rape would not help women either. Thirty years since the laws were passed in the Australian states, we can see that the legislation has not protected all women against all violence within the home. Even so, it has offered some protection and potential for justice, which has proven more effective than none at all.
Rethinking marriage in the twenty-first century
Of course, there is a range of other arguments in opposition to marriage equality, all of which are homophobic or transphobic at their base. Yet thinking about how marriage was reimagined in our recent past – through debates over marital rape legislation – shows how malleable concepts of marriage are, and how time can alter even seemingly static institutions such as family. Marriage as an institution needs to be culturally relevant to our changing society – and changes made in the twenty-first century need to reflect our best contemporary values of inclusion, equality and choice.
Lisa Featherstone is a Senior Lecturer at the University of Queensland. Her latest book Sex Crimes in the Fifties with Andy Kaladelfos was recently shortlisted for the NSW Premier’s History Awards. Lisa has published widely on sexuality, masculinity, childbirth, medicine and child health. She is currently the chief investigator on an ARC discovery project, ‘Sexual Offences, Legal Responses and Public Perceptions: 1880s-1980s’, with Andy Kaladelfos, Carolyn Strange and Nina Westera.
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