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The question posed for this week (if marital rape would be more recognized in same-sex marriages) is a difficult one, least of all due to the fact that same-sex marriage is new to America. Questions of how different same-sex couples would fare (differing treatment of lesbian and gay couples) and the temperament of the judges would be the key to answering such a question. However, it is my opinion that there wouldn't be a substantial difference in determining if rape in a marriage was rape, at least from hetero marriages.

Marriage is still seen as a private institution, and little has been done to dissuade the notion that gay marriage is (in the states where it is allowed). As long as homo marriage is seen as a private affair, the courts aren't likely to intervene in it more then hetero marriage.

I believe that if we ever get to the point where same-sex marriage was legal, that it would encounter all of the same problems that Hasday cited. From my understanding of Hasday's article, the main reason that courts are reluctant to take a stronger position on marital rape is that the idea of marriage prevents them from doing so. Most people think of marriage as "The Perfect Union", and the thought of any violence occurring within marriage as offensive. So the issue is no longer the 19th century position of a man owning a woman and could do with her as he pleases. The fight is now against the idea of marriage itself.

The other problem is that, "Some [states] only recognize marital rape if it in- volves physical force and/or serious physical harm." The main way to identify rape (as dictated by the courts) is very hard to prove in the case of a homosexual couple or a heterosexual couple. Presumably, when a man rapes another man the results can be much more obvious and as such the bar may be raised on rape (E.G. a certain level of visible harm done to the survivor). For these reasons, I believe that even if marital rape were recognized in a homosexual couples, it would be just as difficult for it to be proven due to the same reasons as heterosexual couples. I would agree with Hasday in that society needs to change the connotation of marriage in order to make marital rape prosecutable.

Courts would probably recognize marital rape more in those less traditional marriages. Courts might look at economic standings more in a case-by-case basis. While probably not as extreme in the past, one could be forced to marry in being trapped socioeconomically as Hasday notes (1400). The analogy of legal prostitution could be subject to more scrutiny. Courts might be more lenient on males because of their "morbidly developed" sex drives (1435). In less traditional marriages, this wouldn't apply as the discrepancies in sex drives would be on more perceived equal grounds. Hasday argues that privacy for marriage is encouraged to promote the harmony of the marriage, so that there would be a less likely case of "vindictive wives" (1488-89). This argument probably wouldn't hold in a case of same-sex marriage, especially if both parties were "nonwives" (not that the argument should hold in the first place).

Cases of rape in marriages without a husband and wife might have an impact in heterosexual marriage. Rulings based on socioeconomic class, sex drives, privacy, etc could be under better scrutiny because less traditional marriages would set a precedence. In arguing that one should not accept the precedence, one can argue a violation of equal rights (presuming we're in a world with legal same-sex marriage). Hasday cites a case where a divorce wasn't granted on the grounds of sexual cruelty because... "a large portion of married women assent under exactly those circumstances" (1504). Looking at a more varied set of marriages might lead courts to be more open to the idea that sex can be a consensual recreational activity rather than a duty of one to another.

Assuming a context in which same-sex marriages are legal, I do not believe that the courts would be more likely to recognize marital rape. Hasday compares the 19th century women's movement with modern day movements and says that in the 19th century the fact that marital rape did cause harm to wives. However, in todays era, that harm is unacknowledged. This harm can not be confronted because we our supposed to be a country based on equality especially women's equality and uncovering the harm that is caused would also uncover the still existing inequalities. In a same-sex marriage, which is also supposedly based on equality, would even more so be subjected to keeping the harm that comes from marital rape hidden. The biggest key to keeping marital rape under the radar and especially applicable to same-sex marriages, is gender neutral rhetoric. Rewording the marital rape exempt laws to be gender neutral in language can, especially for same-sex marriages, be even more restricting as to where the law should intervene. Gender neutral laws tend to view men and women as the 'same' and as having interchangeable roles. This view gives courts the ability to assume less responsibility of the husband and disregard that men and women are different and are given different societal roles. In same-sex marriages, this neutrality could be even more unhelpful because the 'interchangable' roles that were presumed before are now strengthened by the fact that two women or two men are presented. Regardless of the intent of being gender neutral, laws rarely are, and since the neutral rhetoric lessened the perceived responsibility of the husband, chances are there will be even less responsibility given to either spouse in a same-sex marriage as there really will be no outward, or societal, differences because of gender. Also, courts generally have an interest in keeping the private 'private' which tends to allow inequalities and harm to continue. Hasday says that men who rape their wives permit a legal system that allows them to avoid prosecution so that they can reconcile wiht their wife later, in private. The state, in what it does not represent, protects itself in such a way that the negatives of these institutions, ie. reality, are not seen. I believe that privatizing same-sex marriages in the same way that heterosexual marriages are, detracts rights away from those individuals. In doing so, the courts can make an attempt to keep same-sex marriage out of the public eye so to speak. Also, much of the arguments proposed surround the wife, the women's right to have control of her own body and self. Women are portrayed as needing protection, both from their husbands and the state. The root of the problem is viewed as the sexual subordination that women are subjected to by men. In a same-sex marriage then, there would be no grounds for claiming inequality. Hasday references reformers that build off of the argument that women naturally have less sex drive as opposed to men who then need to be controlled. Again, this would be an issue in same-sex marriage rulings because it would further reinforce the assumption that husband and wife shared the same beliefs and wishes. The couple then being of the same sex, would even further demonstrate this concept. In conclusion, I believe that marital rape within a same-sex marriage would be viewed no different than, and probably less seriously, marital rape in a heterosexual marriage. Both the gender specific outlook and gender neutral laws have the potential and probability to backfire on marital rape in same-sex marriages. Also, as has thus far negatively impacted, or just confused, marital rape law; gender neutral wording would expound within the context of same-sex marriages. This would be a further detriment to the status and outcomes of marital rape exempt law in heterosexual marriages now by furthering the notion that gender does not come with context. Ignoring context with gender leaves us all looking equal. This percieved equality allows the state to step back and define these matters as 'private'. If we are equal, have interchangeable roles, and as a part of marriage share the same values; there is no need for the protection the law could provide.

I do not think that the courts would consider same sex marriage as martial rape because they do not want to consider same sex marriage at all. also the courts do not consider marriage without a man and a women so they would not have to deal with the issue of marital sex mainly because they do not consider it in heterosexual marriage.

I think not having a husband and wife in a marriage has a big impact on how marriage rape is viewed with the courts because they see man as powerful beings that are allowed to do whatever they want in their marriage and to whom ever they want.
As far as same sex marriages go the courts might not see them as a threat.

According to Hasday, courts would be more likely to recognize marital rape in a marriage when both the spouses are not husband and wife. Hasday talks about the history of the marital rape exemption in the 19th century and how women are not capable of being raped by a husband because being in a marital union is consenting to the "embraces" of her husband. In this case the line is clear, marriage between a husband and wife equals consensual sex because having a wife determine what she does with her body threatens the state. Hasday speaks about prostitutes in the late 19th century who are often referred to in rape cases. The prostitutes do have the right to prosecute a perpetrator and are granted full rights for this. I propose, and I am sure Hasday would agree, these women are granted rights because they do not threaten the state by not having a sustainable role in society (i.e. a lady) and by not bearing children that would be the future leaders of society. Marital rape would expand if the union was not between a husband and wife because it would not be as threatening in terms of children. In terms of heterosexual marriage, we can see this being problematic. Hasday speaks of past laws from the 19th century, but marital rape still exists and is still being spoken out against. If a union between a non-heterosexual couple can be granted more rights to prosecute their spouse for marital rape, then according to Hasday, we have not changed much in how we view the social order of today. The marriage union is treated as a private and covenant relationship, according to Hasday, that the law can ever-so-slightly intrude on because of the moral responsibility it holds (i.e. image of marriage between a husband and wife, children, etc.)

In week 8, I asked you to consider arguments that expanding marriage to same-sex couples would change the inequality inherent in marriage. This week, I would like you to consider the same question with regard to Hasday's discussion of marital rape. Would courts be more likely to recognize marital rape in a marriage in which the spouses are not husband and wife? Might that then have an impact on how marital rape is understood in the context of heterosexual marriage? Be specific: look closely at Hasday's analysis of marital rape and consider which aspects of her argument apply to this blog question.
Suggested Length: 200 words