HERE is a recent judgment from the ECtHR. The judgment found that French law was incompatible with the ECHR, because it allowed the Court to find that a wife was at fault in a marriage for persistently refusing to have sex with her husband.
The judgment is in French and at present has not been translated into English by the ECtHR. The paragraphs below, which I consider to be the key paragraphs of the judgment, result from my own translation via Microsoft Word:
“89. The Court concludes that the very existence of such a matrimonial obligation is contrary both to sexual freedom and the right to self-determination of one's body and to the positive obligation of prevention incumbent on the Contracting States in combating domestic and sexual violence.
90. Although the Government argued that the criminalisation of sexual offences committed within a couple was sufficient to ensure the protection of the sexual freedom of each person, the Court considered that this criminal prohibition was not sufficient to render the civil obligation introduced by the case-law ineffective. It observes that the latter is in line with the progress made in criminal matters (see paragraphs30 at 33 above), as well as the international commitments made by France to combat all forms of domestic violence (paragraph34 above).
91 The Court cannot accept, as the Government suggested, that consent to marriage entailed consent to future sexual relations. Such a justification would be likely to deprive marital rape of its reprehensible character. The Court has long held that the idea that a husband cannot be prosecuted for the rape of his wife is unacceptable and that it is contrary not only to a civilised concept of marriage but also, and above all, to the fundamental objectives of the Convention, the very essence of which is respect for human dignity and freedom.S.W. c. RoyaumeUni, cited above, § 44, and C.R. c. Royaume-Uni, 22 November 1995, § 42, Series A no. 335-C). In the Court's view, consent must reflect the free will to have a particular sexual relationship, at the time it occurs and taking into account its circumstances”.
The Court pointed out that the husband could have sought a divorce based on ‘a permanent alteration of the marital bond’ rather than arguing that the wife was in breach of duty and/or acting unreasonably, in order to guarantee his right under article 8 of the ECHR.
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The Court objected to the idea that there was a duty to engage in sexual relations during marriage. Whilst the Court mentions marital rape, it is easy to distinguish between the existence of a duty and the legitimate means by which that duty may be enforced.
For example, an employee will be in breach of contract for refusing to attend their place of work, but this does not entitle their employer to knock them out and drag them into the workplace. Further, for obvious practical reasons, a Court in England & Wales will not grant an injunction requiring an employee to attend their place of work and carry out their duties.
In my view, the jurisprudence behind this judgment is based on the ideology of liberalism.
A political system based on liberalism, in comparison to other political systems, treats the rights of the individual as a high priority and the needs of society as a low priority. If you want a more detailed explanation of liberalism as a political ideology, there are those more qualified than myself to provide it[1], although I have considered the topic in some detail on this blog[2].
The judgment is only indirectly concerned with no fault divorce and it does not concern adultery, such matters having been already addressed by a jurisprudence based on liberalism.
However, the judgment should be seen within the context of European legal systems, which based on liberalism, have allowed no-fault divorce and have sought to avoid punishment for adultery.
Further, whilst there is a conceptual distinction between sexual abstinence and sexual activity, the extreme importance given to individual preferences and the right of individuals to change their minds in spite of their covenants, can be found in this judgment as well within the arguments for legal reform that led to no fault divorce.
I have written before on this blog, arguing that these reforms arguably abolish or at least degrade marriage.[3] Unlike other contracts, a party can simply change their mind and seek extrication from the contract. Further, with duty removed, marriage is held together merely by feelings, which are often transient.
If there is no duty, there is no true sacrifice; one only needs to act in accordance with one’s desires as they exist at the time. This creates a Brave New World scenario where potentially ‘everybody belongs to everybody else’ and where sexual impulses are exalted above all else (One could disagree with me about marriage being abolished or degraded, but it is unarguable that it is now a fundamentally different proposition than was previously the case).
Indeed, as CS Lewis, explains, sexual impulses have since the sexual revolution, been treated differently to other impulses:
“They meant that sex was to be treated as no other impulse in human nature has ever been treated by civilized people. Absolute obedience to your instinct for self- preservation is what we call cowardice; to your acquisitive impulse, avarice. Even sleep must be resisted if you’re a sentry. But every unkindness and breach of faith seems to be condoned provided the object aimed at is ‘four legs in a bed’.”[4]
He goes on to state, that he understands why the sexual impulse is given special treatment by some (but he does not agree with this special treatment), namely because of its intensity:
“It is part of the nature of a strong erotic passion – as distinct from a transient fit of appetite – that it makes more towering promises than any other emotion. No doubt all our desires make promises, but not so impressively. To be in love involves the almost irresistible conviction that one will go on being in love until one dies, and that possession of the beloved will confer, not merely frequent ecstasies, but settled, fruitful, deep-rooted, life-long happiness. Hence all seems to be at stake. If we miss this chance we shall have lived in vain. At the very thought of such a doom we sink into fathomless depths of self-pity.
Unfortunately, these promises are often found to be quite untrue”[5]
There is much merit in this simple explanation, although it does not explain the change in attitude, as erotic passion is as old as humanity.
Indeed, divorce law reform can potentially be explained by the desire of neo-liberal capitalists to break down the family.[6] It can be further explained by the use of sexual desire as a means of social control (I have considered these matters on this blog),[7]although this is perhaps more relevant to the proliferation of pornography and the repeal of obscenity laws.
The word consupience, which is rarely used today, refers in part to sexual desire impairing the intellect and the will to act justly; consequently, such desire needs to be controlled to avoid it controlling its subject, or allowing its subject to be controlled.
There will probably be more judgments like the French one, as the liberal legal system seeks to purge all vestiges of the old system that are incompatible with liberal jurisprudence.
Notes
[1] See James Burham ‘Suicide of the West’ – An essay on the meaning and destination of liberalism’ - 1964
[4] C.S. Lewis - ‘We have no right to happiness’ – God in Dock – 1970 – 2014 ed – p357
[5] Ibid 358
[6] An analysis of this argument is outside the scope of this article. See 'K Bolton' Babel Inc 2017 p118-119; the source quoted here does not express an intention to abolish the family but implies they are an obstacle to global capital. It is obvious why capitalists would oppose the traditional family, with a stay at home wife and mother, as it creates more income for consumption. I accept that Marxists argue that the family as we understand it today, is a tool of capitalism.
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