Opinion Rape is rape,no exceptions

The first justification was provided by Sir Mathew Hale (1609-1676),the former chief justice of England. Hale said that on marriage,a woman provides her husband consent to sexual intercourse,which she cannot revoke. In effect,through the “contract” of marriage,she grants control of her sexual autonomy to her husband in return for his “protection.” This “contractual” theory ties in with the second justification for the exemption — the “property” theory. According to this theory,a woman is a man’s property. She “belongs” to her father before marriage,and is her husband’s property thereafter. Since a man is entitled to use his property in the manner he deems fit,the question of a husband raping his wife does not arise. Under this theory,the aim of rape law itself is to safeguard the property rights of a woman’s father or husband,not to punish violations against her sexual autonomy. The third justification for the marital rape exemption is the “unification theory.” According to this theory,the wife forfeits her legal existence on getting married. She cannot own property,sue or be sued,enter into contracts,or manage her property. In other words,she is no longer considered an independent person. Her legal identity merges into that of her husband’s. Since the wife has no legal existence outside of her husband’s identity,it is not legally possible for a man to rape his wife.

The three justifications discussed above make little sense,especially in today’s context. Newer definitions of consent,including the one provided in the ordinance,require a man to obtain the woman’s unequivocal voluntary agreement to participate in sexual acts. The concept of “irrevocable consent” contradicts such a definition,since it does not recognise a woman’s right to withhold consent to individual sexual acts. Further,the “irrevocable consent” theory arose at a time when divorce was virtually impossible. With divorce laws recognising that marriage is itself revocable,it is difficult to justify irrevocable consent to sex within the marital contract. Additionally,the notion that a woman is a man’s property,and that she does not have an independent legal identity,has been decisively rejected.

Hence,the three traditional justifications of the marital rape exemption do not work. Consequently,newer and “pragmatic” justifications for the exemption are now provided. These include: first,women will fabricate rape charges; second,a complaint of marital rape breaks the marital relationship; and thirdly,the law provides other remedies which the wife can exercise. The parliamentary standing committee,which earlier this month recommended that the marital rape exemption be retained in the IPC,cited some of these justifications in support of its decision.

The major concern of most people who argue against marital rape is that women will file false cases. This understanding emerges from an offensive assumption that existed in evidence law that women cannot be trusted — that they are prone to lie. If the marital rape exemption is justified on the basis that a wife’s complaint cannot be believed,and consequently,a woman raped by her husband is treated differently from another woman raped by a man who is not her spouse,such differentiation does not have a rational basis,and violates Article 14 of the Constitution,which guarantees equal protection of the laws. Further,if fabrication is actually a major concern,safeguards should be provided against fabrication,rather than not criminalising marital rape.

The second justification is that a complaint of marital rape destroys the institution of marriage. It should,however,be recognised that if a husband rapes his wife,it is not the complaint that destroys the institution of marriage,but the act of rape itself. There is no justification to insist that a marriage should subsist in spite of its violent nature. Doing so would lead to condoning violence,which the state is legally bound to prevent.

The parliamentary standing committee further stated that instead of prosecuting her husband for rape,the woman should seek divorce,or prosecute her husband for cruelty under existing laws. The committee failed to recognise that rape is a violation of sexual autonomy. By failing to recognise rape within marriage as rape,the law signals that women do not have complete sexual autonomy within marriage. The harm lies in this failure to recognise women’s control over their own bodies in the context of marital relationships. This harm is compounded by the reasoning that maintaining the “status quo,” however violent,is more important than recognising and safeguarding women’s rights.

Further,the standing committee envisages the family playing a role in resolving “problems.” It appears to advocate reconciliation outside the legal framework. A group of parliamentarians advocating extra-legal solutions to violation of basic fundamental rights is worrying. The state cannot relinquish its responsibility to protect rights. It is for the state to ensure that women enjoy all the rights guaranteed to them under the Constitution. This includes the right to their sexual autonomy. The marital rape exemption negates the right to sexual autonomy and the right to equal treatment under the laws. If Parliament retains the marital rape exception in the law that it is expected to enact shortly,it will be enacting an unconstitutional law.

The writer is associate professor at the National Law University,Delhi