Throwing Stones at Afghanistan's Marital Rape Law

05/20/2009 05:12 am ET | Updated May 25, 2011

Is the American house made of glass?

Maybe the United States should require all the countries we occupy to implement an equal rights law for women, something like the one we never passed: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." That might help remind us of the situation here. It might also fit with Secretary of State Clinton's assertion, with regard to Afghanistan, that, "Women's rights are a central part of American foreign policy in the Obama administration. They are not an add-on or an afterthought." (Really, she doth protest too much. Can there be any doubt that in America's involvement in Afghanistan, women's rights are literally an add-on and an afterthought?)

The current problem with symbolic self-governance in Afghanistan is a law that, for the country's Shia minority, would "legalize marital rape, prohibit women from leaving the home without permission, deny them the right of inheritance, force a woman to 'preen for her husband as and when he desires,' and set the minimum female marital age to sixteen," in the summary of journalist Anand Gopal. (Gopal also points out that, although the law may now be revised, most of the affected women already live under these conditions, and would not be aware of the legal change either way.)

This is naturally abhorrent in the United States, a country that, although it never passed the ERA, at least prosecutes husbands who rape their wives. At least we have since 1979 - the first year in which an American man was convicted of raping his wife. It is surprising that the marital rape aspect of Afghanistan's law is what generates the most outrage here, because that aspect of the law is most similar to our conditions.

By definitions of rape that approximate the legal standard, a series of surveys have found that about 10%-14% of married women in the U.S. have been raped by their husbands. American women may be protected when they want to leave the home or inherit property (although most U.S. states also permit marriage at age 16 with parental consent). But when it comes to marital rape, the situation is poor.

Originally, U.S. law -- following the "traditional" model of marriage in which one man owns one woman -- treated rape as a crime against the woman's husband or owner (in the case of slaves). That meant a man raping his own wife (or slave) was logically impossible. The doctrine of "coverture," which subsumed wives into their husbands' citizenship, eroded during the 19th century, and (white or non-Southern) women became voting citizens in 1919. But marital rape went largely unchallenged until the 1970s. Now, it is technically illegal in all states, but "marital immunity" still prevails to varying degrees. As of 2003, for example, 20 states "exempt men from sexual offense charges when their wives are mentally incapacitated or physically helpless."

So in most states, if they were married, Ronnie in Observe & Report would have been guilty of rape if Brandi hadn't woken up and told him it was OK, but in 20 states it would have been legal even if she didn't.

(Some gay marriage advocates have remarked on the irony of demanding access to this legal institution in the name of equality. But marriage and marriage laws have changed, and permitting same-sex marriage would represent more progress in the same direction.)

In practice, prosecuting marital rape remains difficult and rare in America, especially in the absence of other abuse or serious bodily injury. That means millions of married American men wandering the streets today have raped their wives with legal impunity. The Afghani law is atrocious - another brick in the wall of fundamentalism shored up by American support for its current friends in the Islamic world. But before stoning the ruling Afghanis, Americans should check on the glass walls of their own family home.