Most countries criminalized marital rape from the late 20th century onward—very few legal systems allowed for the prosecution of rape within marriage before the 1970s.Criminalization has occurred through various ways, including removal of statutory exemptions from the definitions of rape, judicial decisions, explicit legislative reference in statutory law preventing the use of marriage as a defense, or creating of a specific offense of marital rape.A husband's control over his wife's body could also be seen in the way adultery between a wife and another man was constructed; for example in 1707, English Lord Chief Justice John Holt described the act of a man having sexual relations with another man's wife as "the highest invasion of property".For this reason, in many cultures there was a conflation between the crimes of rape and adultery, since both were seen and understood as a violation of the rights of the husband.Laws are rarely being enforced, due to factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge that sexual intercourse in marriage without consent is illegal.Marital rape is more widely experienced by women, though not exclusively.Under customary law in certain parts of Africa, forced sex in marriage was not prohibited, although some specific circumstances, such as during advanced pregnancy, immediately after childbirth, during menstruation, or during mourning for a deceased close relative, were recognized as giving the wife the right to refuse sex.
In a case of Lord Audley's (1488-1544), for instance, his citation of the jurist Bracton (c. 1268) supports this rule, said to have derived from laws of King Æthelstan (r.In some cultures, marriage is arranged for the purpose of creating access to procreation (Yllö, 2016).In these situations, the parties do not necessarily consent to marriage (in the case of forced marriage) (Yllö, 2016).Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely recognized by law and society as a wrong and as a crime.
It is recognized as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.
This view was described by Sir Matthew Hale (1609-1676) in History of the Pleas of the Crown, published posthumously in 1736, where he wrote that "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract"." Also, American and English law subscribed until the 20th century to the system of coverture, that is, a legal doctrine under which, upon marriage, a woman's legal rights were subsumed by those of her husband. 455 (1981), a United States Supreme Court case in which the Court held a Louisiana Head and Master law, which gave sole control of marital property to the husband, unconstitutional.