The Legal Status of Tamkin and Consent in Marital Sexual Violence with a Comparative View

Document Type : Research Paper

Authors

1 MA. in Criminal Law & Criminology, Department of Law, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran

2 Assistant Prof. , Department of Law, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran

3 Associate Prof., Department of Law, Faculty of Literature and Humanities, University of Guilan, Rasht, Iran

Abstract

Introduction
After marriage, the couple accepts rights and duties toward each other; one of them is the right of sexual enjoyment but exercising this right should not cause any harm or sexual violence. Sexual violence includes behaviors that cause sexual harassment against a person without her will and the relation between them makes no difference therefore marital sexual violence is criminalized as a type of domestic violence in many national legal systems while some countries do not recognize it as a certain crime. The aim in this article is to discuss about the criminalization of this phenomenon and the circumstance of consent in marital sexual acts in different counties and emphasizing on the importance of criminalizing it in countries like Iran.

Methods
By examining the concept of marital sexual violence and using descriptive analytical method, and national and international sources, such as books, articles, documents and laws, while comparing other legal systems like England, USA, Australia, France and Germany, with Iran and proposing questions such as Can making provisions like Tamkin be a justifier to any kind of sexual conduct? If not, what are the borders and limitations for it? Does the consent to marriage equal the consent to any sexual relationship? Is consent essential in marital sexual relationship or the obligation to comply (Tamkin) is against it? this research attempts to present applicable solutions for recognition of this phenomenon in Iran and other countries which did not criminalize marital sexual violence.
 
Results
While countries like USA or Australia know this crime as any sexual behavior which may occur despite the lack of consent in victim and the relation between them does not make difference, other countries like Iran and India make some limitations for criminalizing this behavior and eliminate sexual violence in marriage. By studying the countries which consider the occurrence of sexual violence as a type of domestic violence between couples, it is clearly revealed that by emphasizing on the concept and importance of consent they mostly want to consider the mere lack of consent in any sexual behavior as a reason for sexual violence, even if the victim is the perpetrator's spouse; because they generally believe that the consent to marriage does not equal to the consent for sexual relationship and the couples need to ask for consent at any time they want to do any sexual act. On the other side, those countries which does not criminalize marital sexual violence, often believe that the consent to sexual conduct is granted in the consent to marriage. Therefore, the law in these countries like Iran makes the obligation to comply in sex for wives.  Article 1102 of Iranian Civil Law says that occurrence of a valid marriage is the start of the occurrence of rights and duties for couples and one of the responsibilities assumed for women is the obligation to comply("Tamkin"), which in its specific concept means making the possibility of sexual fulfillment for the husband. This duty is that important for lawmakers that disobedience may cause the sanction of not paying the expenses of the essential needs to the wife which can be known as a kind of punishment. But there is not any similar duty for husbands and it makes the anticipation that women's sexual rights are totally denied in Iranian legal system. In Iran, due to the lack of limits on Tamkin, the only legal solution for women is to request a divorce by proving hardship ("Osr va Haraj") and there is no crime under the title of marital sexual violence.

Conclusion
Criminalizing marital sexual violence in legal systems such as America, Australia, France, Germany and England seem to be on the right way, because emphasizing on the importance of the concepts like consent which can change a sexual act to a sexual crime is undeniable. In Iran even if the obligation to comply (Tamkin) in law may not inherently include every kind of sexual behavior in marriage, like uncommon ones, but making these types of provisions can facilitate the criminal acts such as sexual violence with the legal support and this itself reveals the importance of absolute criminalization of marital sexual violence by using legal and jurisprudential capacities.

Keywords

Main Subjects

References

 
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