Sunday, February 3, 2008

marital rape vs. religion

paper and ink
indeed, the state should strictly observed the separation of the state from the church. but what if the law being implemented crosses one's religious belief or vise versa?

yesterday, while doing some research over the internet, i've decided to take a quick break and talked to one of my officemate, kat. she would probably be the most reserve person at work. you would seldom see her talking or if she will, it would be near the threshold of silence. she came from an exclusive catholic school for girls in quezon city. so she is quite religious as well. she, like her faith, is religiously attending masses and bible study almost everyday. despite the hectic schedule of our work.

our talk eventually lead us in discussing about religion and gender. she told me, before, when she was in highschool, they have a priest mentor who told them that it was actually a sin for a woman to refuse sex, whenever her husband is inviting her. i was actually surprised hearing that rule. she said it was actually in the bible. although she forgot the exact verse of it. well, i couldn't let myself not to believe her, considering that i think she knew the bible more than i do.then suddenly i thought of the concept of marital rape.

Marital rape is any unwanted sexual acts by a spouse or ex-spouse, committed without consent and/or against a person's will, obtained by force, or threat of force, intimidation, or when a person is unable to consent (ref: by sheri and bob stritof).

in the philippines, it was just in 1997, when the country have finally recognized the existence of marital rape through R.A. 8353 or the the anti-rape law. although this law did not specifically identify rape between married couples, it was somehow structured to cover up generally all kinds of relationships, as long as a man had carnal knowledge to a woman through force, intimidation, and violence: when the offended party is deprived of reason or otherwise unconscious: by means of fraudulent machination or grave abuse authority or when the offended party is under twelve years of age or is demented, even though none of the circumstances mentioned above be present (ref: chan robles virtual library).

then i thought again, what if it is the other way around. strictly following statutory construction could a woman still be charged with rape if she had carnal knowledge with a man under the same circumstances? how about man to man? or woman to woman? or probably this is for another issue.

on my research, i found out that catholicism is not the only religion who recognizes the refusal of a woman to have sex with his inviting husband as a sin. such action is also considered as a wrongdoing in islam. basically, both religion argues that when a woman enters the contract of marriage, she is expected and obliged to serve his husband, in which sexual intercourse deemed as a religious duty. second, both religion is also dominantly patriarchal in nature. in which women or the wives are expected to submit to their men or husbands. lastly, both religion advocates marriage as a venue of procreation which is also supported by our law. thus, any refusal coming from one of the party especially the woman is recognized as a refusal for the growth of the family, which is the life blood of every society.

nonetheless, come to think of it, marriage is a consensual agreement between two parties that is also arranged with mutual respect. both have duties and obligations to one another. if one is forced to do something outside his/her consent through violence and intimidation, then it is no longer consensual and a violation of the agreement. basically, the loss of respect could also be considered the loss of the foundation of the agreement. but not necessarily the effectivity or validity of the marriage.

on the other hand, if a man is charged with marital rape and used the religion clause, in which the “constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not only for a majority, however large- but for each of us, ref: Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p. 416 (1963), to protect himself against the charge, it might change the flow of the case.

but in the case of estrada vs. escritor, the supreme court ruled that benevolent neutrality, does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it.

in conclusion, a man charged with marital rape could not used the arguement that his religious belief protects him from the law of the state because such might be detrimental to the equal protection to women particularly among wives. in addition, couples should understand the true meaning of love first even before engaging into marriage. it would work on both parties. a wife who understands love would be rather compasionate in understanding the needs of his husband, regardless if this is something personal or for the purpose of raising a family. while a husband who truly loves his wife would understand her considerations and respects his wife with reverence.

today, after writing this, i am going to discuss this post to kat. excited and full of enthusiasm i woke up and came at work earlier than the usual. then when i came in and look for kat, i just remebered, today was her off. darn!


DN said...

hehe. cool post.

i learned from my PFR class na ang ilan sa mga lumang "secular" theories about the inexistence of marital rape ay ang mga ss:

The wife is a property of the husband. (Walang pakialaman sa paggamit ng property mo. Lol.)

The subsequent marriage of a rapist and his victim extinguishes the liability of the rapist. Kya by analogy, wala daw marital rape.

Buti na lang talaga at nausao ang "gender equality". lol.

Anyways, tungkol naman daw du'n sa Bible verse, ang alam kong nakasulat du'n ay huwag ipagkait sa isa't isa ang sarili kung pareho naman nila gusto upang maiwasan ang adultery or something to that effect.


wanderingcommuter said...

wow, uno ka na sa legal research bata! hahahah!

Anino said...

Wanderer, nagsisisi ako kung bakit hindi ko tinapos ang Women's Studies. Huling semester na lang.Natapos ko na ang tatlong semestre.Dragon kasi yung Prof sa research.

Makepeace said...

sweet post.
i'm a blogger too and i'm doing my research on the said topic. might use your thoughts, however, not without giving you credit.

wanderingcommuter said...

makepeace:no problem as long as you'll let me read it after you have finished it!!!!