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Zero-Tolerance Comes to International Law

Published online by Cambridge University Press:  20 January 2017

Aya Gruber*
University of Colorado Law School
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It is difficult to engage from a theoretical perspective an advocacy piece that largely reads like a brief in favor of particular claim of law, namely, that a state’s failure to (vigorously) criminalize marital rape violates international human rights law. In a brief, the litigant pulls together various sources to prove the legal claim is correct. Opponents typically respond by cobbling together their own sources to undermine that claim. In their essay, Criminalizing Sexual Violence Against Women in Intimate Relationships, Randall and Venkatesh set out to prove that international human rights law, in fact, requires states to criminalize marital rape. I suspect there are international lawyers who can persuasively argue that international human rights law does not, in fact, require such criminalization.

Symposium on the International Legal Obligation to Criminalize Marital Rape
Copyright © American Society of International Law 2015


1 Randall, Melanie & Venkatesh, Vasanthi, Criminalizing Sexual Violence against Women in Intimate Relationships: State Obligations Under Human Rights Law, 109 AJIL Unbound 189, 190 (2015)Google Scholar.

2 Id. at 194.

3 Cf. Kotiswaran, Prabha, Born Unto Brothels-Toward A Legal Ethnography of Sex Work in an Indian Red-Light Area, 33 Law & Soc. In Quiry 579 (2008)Google Scholar; Leigh Goodmark, A Troubled Marriage (2012).

4 See Ahmed, Aziza, Trafficked? AIDS, Criminal Law and the Politics of Measurement, 70 U. Miami L. Rev. 96, 109 (2015)Google Scholar. Cf. Merry, Sally Engle, Measuring the World: Indicators, Human Rights, and Global Governance, 52 Current Anthropology (SUPP. 3) S83, S85 (2011)Google Scholar.

5 Randall & Venkatesh, supra note 1, at 189.

6 Id. at 189-90.

7 Id. at 190.

8 Id. at 191.

9 Id.

10 Id.

11 Id.

12 Id. (quoting Secretary General, In-depth study on all forms of violence against women, paras. 112-113 UN Doc. A/61/122/Add.1 (July 6, 2006) (emphasis added).

13 See Neha Thirani, Debating the Death Penalty for Rape in India, N.Y. Times Blog (Dec. 28, 2012); Alissa J. Rubin, Flawed Justice After a Mob Killed an Afghan Woman, N.Y. Times (Dec. 26, 2015).

14 Randall & Venkatesh, supra note 1, at 191.

15 See Ahmed, Aziza, Feminism, Power, and Sex Work in the Context of HIV/aids: Consequences for Women’s Health, 34 Harv. J. L. & Gender 225, 228 (2011)Google Scholar.

16 Cf. Paúl, Álvaro, Controversial Conceptions: The Unborn and the American Convention on Human Rights, 9 Loy. U. Chi. Int’l L. Rev. 209, 210 (2012)Google Scholar. See Friedman, Andrea D., Bad Medicine: Abortion and the Battle over Who Speaks for Women’s Health, 20 WM. & Mary J. Women & L. 45, 46 (2013)Google Scholar.

17 Ruth Alexander, Sweden’s rape rate under the spotlight, BBC News Magazine (Sept. 15, 2012).

18 Apparently, Sweden did pass new rape laws, but did not generally become more punitive. See Sweden tests rape law amid surge of attacks, The Local (Dec. 4, 2013); Erwin James, Why is Sweden closing its prisons?, The Guardian (Dec. 1, 2013).

19 See Sue Reid, Torn apart by an open door for migrants: Sweden is seen as Europe’s most liberal nation, but violent crime is soaring and the Far Right is on the march, The Daily Mail (Nov. 13, 2015).

20 See Goodmark, supra note 3; Gruber, Aya, The Feminist War on Crime, 92 Iowa L. Rev. 741 (2007)Google Scholar.

21 See Goodmark, supra note 3; Gruber, supra note 20.

22 People often signal consent nonverbally rather than affirmatively. See Humphreys, Terry P. & Brousseau, Mélanie M., The Sexual Consent Scale–Revised: Development, Reliability, and Preliminary Validity, 47 J. Sex Res. 420, 421 (2010)CrossRefGoogle Scholar (citing studies).

23 See New Research from the Population Council Shows Child Marriage Can Be Delayed, Population Council (Aug. 12, 2015).

24 See West, Robin, Martial Rape, Consent, and Human Rights: Comment on “Criminalizing Sexual Violence against Women in Intimate Relation ships”, 109 AJIL Unbound 197 (2015)Google Scholar.

25 Randall & Venkatesh, supra note 1, at 195.

26 Id. at 196.

27 Id. at 195.

28 Id. See Gruber, Aya, A Provocative Defense, 103 Cal. L. Rev. 273 (2015)Google Scholar (critiquing expressivism).

29 Harcourt, Bernard E., Joel Feinberg on Crime and Punishment: Exploring the Relationship Between The Moral Limits of the Criminal Law and The Expressive Function of Punishment, 5 Buff. Crim. L. Rev. 145, 168 (2001)CrossRefGoogle Scholar.

30 Randall & Venkatesh, supra note 1, at 196.

31 Id. at 195.

32 Id. at 194.

33 Gruber, Aya, When Theory Met Practice: Distributional Analysis in Critical Criminal Law Theorizing, 83 Fordham L. Rev. 3211, 3223 (2015)Google Scholar.