Guest Post – Should legal marriage imply consenting to sex?

A guest post by Andrew Lilico

Andrew LilicoDressed up in fine words and aspirations, a traditional European marriage was at root a deal.  The parties agreed to have sex with each other and only with each other, and to provide materially for one another and for any children of the union.  In practice, by and large, and expressed overly-bluntly, a marriage was society’s acceptable way of women trading sex for material support.

Consent to sex was permanent and ongoing.  There could by definition be no concept of “rape” within marriage, because “rape” implies the absence of consent — by definition ruled out.  The husband could of course be convicted of beating his wife, but not of raping her.  There also had to be laws and principles setting out just what she had and had not consented to.  (This was a key practical import of those so-called “sodomy laws” that restricted within-marriage sex acts — she’d consented to have sex but not to do just anything.)

Under English law this arrangement came to an end in 1991, when in the case of R v R what is often referred to as the “marital rape exemption” was abolished.  This judgement can be understood as saying that, like selling oneself into slavery, a contract notionally providing permanent and ongoing consent to sexual intercourse will not be recognised in law.

There is of course a strong case for contending that contracts of permanent consent to sexual intercourse may have had their historical role at a time when women needed physical and material protection from some man and needed something to trade to obtain it, but are now (perhaps long) obsolete.

However, we should notice something important here.  If we say that the law should not recognise permanent and ongoing consent to sexual intercourse, we are creating a wedge between the legal obligations of marriage and the undoubted moral obligations of Christian marriage.  Christian spouses are not entitled to withhold their bodies from one another and are specifically instructed by Paul not to do so unless for some agreed temporary spiritual purpose (e.g. see I Corinthians, 7:1-5).  And how could it be otherwise?  For if divorce and adultery are both forbidden, then the denial of the provision of sex is the denial of access to sex for the denied partner.  A marriage could not be stable under such conditions.

That means that a Christian marriage – a moral and indissoluble contract of permanent and ongoing consent to sexual intercourse – is profoundly different in nature from a legal marriage – a dissoluble contract that does not imply permanent or ongoing consent to sexual intercourse.

Many Christians argue that adultery should be treated more severely in law, that divorce should be harder, that legal re-marriage should be forbidden and for many other ways they urge that legal marriage should be brought in line with Christian marriage.  But how many of you really bite this bullet?  At its most basic, a Christian marriage is a contract of permanent and ongoing consent to sexual intercourse, and as such implies that it is impossible, by definition, for a man to rape his wife.  If you truly want to bring the law in line with Christian marriage, start there.  And if you quail from that – as I expect most sensible readers do – then you are accepting that legal marriage should not, even at the deepest levels, mirror Christian marriage.  And once you start to accept that the legal obligations of modern marriage should (not merely do) differ from the moral obligations of Christian marriage, you may find you think of a “state marriage” in a whole new way…