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

Articles in Press

Document Type : Research Paper

Authors

1 Faculty of Law, 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

After marriage, couples accept rights and obligations; like the right of sexual enjoyment. However, arbitrarily exercising it, may lead to harm to the partner. Sexual violence is known as a type of domestic violence in national legal systems. Nevertheless, in Iran's legal system, due to the provision of the wife's obligation to comply (“Tamkin”), there is no indication of the definition and responsibility in case of an unconventional request for compliance and against the wife's consent. The question is whether consent is important in establishing sexual relations in marriage, or Tamkin is placed against consent and reduces its importance? This research, using an analytical-descriptive method and through a comparative study on other legal systems such as England and the United States, concludes that in Iran, due to the lack of boundaries for compliance and absence of a crime for marital sexual violence, only based on jurisprudential principles and rules such as “La Zarar”(No Harm), “Osr and Haraj” (Eliminating hardship and difficulty), and “Hosne Moasherat” (good conduct), it is possible to establish civil and criminal liability for the husband. However, in other legal systems and international documents, any sexual relationship against the partner's will can be an example of sexual violence.

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Journal of Legal Studies

Articles in Press, Accepted Manuscript
Available Online from 30 March 2025

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