Violence in Marriage

One can conclude that the entire struggle for democratization of the society can be reduced to the struggle for human rights. In this long-lasting struggle, the human rights of women and their position in the society will become generally accepted values only when the struggle for their recognition gets out of the narrow circle of women and becomes part of the awareness of each human being - man and woman alike. Human rights of women should be considered by politicians, rulers and true advocates of the rights and freedoms of women, as well as by those who fully and severely violate them. The readiness of the international community to discuss the human rights of women and their violation, improvement and protection, as a reaction to the permanently present wrong representation of the situation in certain countries, became obvious in the Universal Human Rights Declaration adopted in 1948. However, only after the Convention on the Elimination of All Forms of Discrimination of Women was adopted in 1979, which clearly said that discrimination of women violates the equality of rights and existence of human dignity, did the international community clearly declare that all human beings are born free and equal in dignity and rights, and that they are all entitled to the same rights and freedoms contained therein without any differences including the difference in sex.

However, we witnessed severe violation of the human rights of women: women's rights are limited, deprived, or violated in a fairly large scope. In our society, violation of the human rights of women is part of the day-to-day life. Violence in marriage and family is widespread. These forms of violation of human rights of women are rarely discussed.

It is difficult to understand that mental and physical violence against women, especially rape in marriage, explicitly specified in the above mentioned international documents as kinds of violation of human rights of women, can be justified by the opinion that women are totally receptive to physical violence and that during rape they feel satisfaction, that women's sexual relations are characterized by masochism. These opinions, existing in our public, strongly degrade women and involve their unnatural position. It is certainly not in the woman's nature to be exposed to violence, let alone to provoke violence. This way of looking at things reduces the woman to her sexuality, to the opinion that the complete integrity is reserved only for men. Therefore, it comes as no surprise that our society, which is a deeply patriarchal one, lacks legal protection from these forms of violation of the human rights of women. The fact is that our incrimination of rape, which has remained unchanged for years, is not in accordance with the new concept of this criminal act in some modern legislations. In the societies which deserve to be called democratic, the incrimination of rape is proportional to the state of development of both awareness and observance of the freedoms and rights and the freedom of decision-making in a sexual act is inspired by the mentioned declarations. Their definitions of rape tend to be extending the protection of the woman's integrity in the area of sexuality. The woman is, first of all, protected against sexual violence (a wider idea than the "classical intercourse carried out by force") and the possibility of this act is foreseen even in the case when the perpetrator and the victim are spouses.

Therefore, I think that changes, amendments or new solutions should be offered referring to this criminal act. The chapter title "Criminal Acts Against the Dignity of Personality and Morality" is, no doubt, anachronic and "Criminal Acts Against Sexual Freedom" would be more adequate. As for the criminal aspect of rape, it should be changed in two directions: 1) the act could be sexual intercourse with the use of force; 2) the status of the woman as victim should be of no influence. Sexual intercourse is a more adequate and wider idea which would include all kinds of sexual acts which, even if they do not represent typical intercourse, include various ways of penetrating the woman's body. At the same time, by recognizing the possibility of rape in marriage, the use of force in marriage could be considered. It is clear that in our population, where the percentage of marriages of alcoholics is high, the woman's will can be subdued by the use of force. In such marriages, rape occurs daily. This can be illustrated by a study of the Institute for Criminological and Sociological Research, according to which 18.7 percent of the randomly chosen 192 women said they had been raped by their husbands. Analysis of the three-year-long work of the SOS telephone shows that of all the reported cases of sexual violence, 15.5 percent were cases of rape in marriage. Aware of the fact that foreign legal solutions cannot be simply copied, I think that innovated regulations could affect the development of awareness among citizens. In expectation of a new criminal law of Yugoslavia, it would be worthwhile to examine the existing acts in order to re-define the most typical and severe form of violation of the human rights of women - rape. This would be in accordance with the criminal-political needs, as well as with the tendencies in the modern doctrine and contemporary legislation in the world.