Research Handbook on Feminist Jurisprudence
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Research Handbook on Feminist Jurisprudence

Edited by Robin West and Cynthia G. Bowman

The Research Handbook on Feminist Jurisprudence surveys feminist theoretical understandings of law, including liberal and radical feminism, as well as socialist, relational, intersectional, post-modern, and pro-sex and queer feminist legal theories.
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Chapter 12: ‘Some gentle violence’: marital rape immunity as contradiction in criminal law

Ngaire Naffine

Abstract

At the center of criminal legal doctrine is a contradiction still unacknowledged by influential theorists. Criminal law, criminal jurists and scholars have accepted and sometimes even counseled rape of a wife as a means of securing domestic order, while at the same time describing rape as the worst thing that can be done to a person short of murder. Rape has been condemned outright and absolutely; yet, at the same time, the highly qualified nature of the crime has been either tacitly accepted or openly endorsed. I call this ‘The Contradiction’ of criminal law. This chapter examines the nature of this faulty logic and how it has been obfuscated by mainstream scholars. It also considers the remarkable variety of ways in which feminists from law and adjacent disciplines have exposed these problems of impaired legal reasoning at the center of criminal law.

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