Updated: February 3, 2022 10:37:05 pm
The Delhi High Court is hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code (IPC), which exempts spouses from being prosecuted for rape within marriage.
Petitioners, pointing to several cultural norms, have argued that since courts have recognised that consent can be withdrawn even during sex, the assumption of consent in perpetuity cannot be valid. They have also said since consent is also required in the case of sex workers, from whom there is a reasonable expectation of sex, the case cannot be made that women are expected to perform intercourse within a marriage. Amongst other arguments, parties challenging any changes in law state that the function of criminalising marital rape should come from the legislature and not the judiciary.
In 2017, the Union Government told the court in the same case that removing the marital rape exception would destabilise the institution of marriage and be used by wives to punish their husbands. Continuing with that stance, the Centre recently told the Delhi High Court that just because other countries have criminalised marital rape, India doesn’t have to follow them. In its written submissions to the court, the Centre said, “India has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalising marital rape”. The Delhi government has also defended the law saying that women, who may be raped by their husbands, have other legal recourses such as filing for divorce or registering a case of domestic violence.
Politicians have also held similar stances. The then Minister of State for Home Affairs Haribhai Parthibhai Chaudhary said in 2015, “The concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including levels of education, illiteracy, poverty, myriad social customs and values, religious beliefs, [and] the mindset of the society to treat the marriage as a sacrament.” In 2016, the then Union Minister for Women and Child Development Maneka Gandhi said in Parliament there cannot be a law against marital rape because marriage is a “sacrament” and that even if there was, it would make no difference because “no one would complain.”
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What is marital rape?
Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without their consent. The lack of consent is the primary defining factor and the act need not involve physical violence. Although marital rape is now widely seen as a form of sexual violence, historically, sexual intercourse within marriage was regarded as a spouse’s right.
According to an Oxford University publication, marriage in some cultures is arranged for the purpose of creating access to procreation. In these situations, the parties don’t necessarily consent to marriage and following that logic, if consent is not part of marriage, it is not required for intercourse. Additionally, in countries where the custom of bride price is common, the payment is seen as earning the man the right to control his wife sexually.
The prevalence of marital rape is dependent on the legal and cultural context of the country in question. In 1999, the World Health Organization (WHO) conducted a study of domestic violence against women in Tajikistan. Of the 900 women it surveyed, 47 per cent reported being forced to have sex by their husband. However, in Western countries, the number is significantly lower. A nine-nation study within the European Union in 2009 found that current and former partners were the perpetrators of 25 per cent of all sexual assaults.
Based on the victims’ experience, experts say the effects of marital rape can be devastating. Unlike other forms of rape, the victims are forced to live with their perpetrators and are often dependent on them financially. In countries with low rates of female labour participation and education, women who are raped by their husbands have no means of escaping the marriage and few legal or institutional alternatives. In some countries, single women who are raped are forced to marry their rapists as a way of resolving the offence.
Although it is not frequently discussed, men can also be subjected to marital rape and according to a 2000 study, between 13 and 16 per cent of men are victims of assault by married or cohabiting partners in their lifetime.
History of the movement
According to Jonathan Herring, in Family Law (2014), historically, in much of the world, rape was seen as a crime or theft of a husband or father’s property. In those cases, property damage meant that the crime was not committed against the victim but against her husband or father. Therefore, by definition, a husband could not rape his wife because she was considered to be his property. Also, up to the 20th century, under American and English law, the legal doctrine was one of coverture, which meant that upon marriage, a women’s legal rights were subsumed by those of her husband.
Jennifer Koshan, a professor of law at Calgary University, argues in a paper that there are several reasons behind men’s historic immunity for marital rape. The first, called implied consent theory, states a woman automatically confers consent when she marries her husband. The second theory, discussed earlier, is that a woman is the property of her husband, thus rendering marital rape an oxymoron. According to Koshan, other rationales focused on the complexity of proving non-consensual intercourse within a marriage, the alleged propensity of women to lie about being raped in order to gain an advantage in divorce proceedings, the importance of preserving the integrity of matrimony, the argument that marital rape is less serious than other forms of rape, and that women have other legal recourses to leave an abusive relationship.
These views began to be challenged with the rise of the feminist movement in the 19th century. Suffragists, including Lucy Stone, defied the taboo of talking about sex publicly by arguing that women’s right to control marital intercourse was a fundamental component of equality. By the 1960s and 70s, most Western countries criminalised marital rape by removing statutory exemptions from the definition of rape or by explicitly defining marital rape as a criminal offence. The first country to criminalise marital rape was the Soviet Union (1922) and the UK (1991) and the US (1993) were amongst the last Western nations to do so. In the UK, a section of the law exempting spouses from rape charges was struck down by the courts in a landmark decision in the case of R v R. In the US, states were free to formulate their own laws surrounding the topic, with some only considering it to be a crime when force is involved and others placing a shorter statute of limitations than what applies for rape outside of marriage. These laws have evolved over time, and today, South Carolina remains the only US state that requires proof of excessive force when prosecuting marital rape.
As of 2019, marital rape has been criminalised in 150 countries. However, in some countries, notably those which inherited the 1860 Indian Penal Code (such as Singapore, India, Bangladesh and Sri Lanka), laws specify that forced intercourse within a marriage cannot be considered rape. In certain countries like Bangladesh and India, the law prohibits marital rape only if the wife is under a certain age. In others, like Sri Lanka, the law prohibits spousal rape only if the spouses are legally separated. However, in most countries that do not criminalise marital rape, there are a few exceptions and the expectation is that while domestic battery should be illegal, forced intercourse in and of itself should not.
Experts say the problem with criminalising marital rape is compounded by social stigmas held by both men and women. According to a report by the Population Council, women in several South Asian countries are afraid to resist the sexual advances of their husbands, lest they be beaten in response. Additionally, the report states that in many developing countries, both men and women believe that a husband is entitled to sex anytime he demands it.
In a survey conducted in Mali, 74 per cent of women said that a husband is justified in beating his wife if she refuses to have intercourse with him. According to a UN Factsheet in countries like Bangladesh, 45 per cent of women are married by the age of 15 and depend on their husbands for their entire life. Those women may not want to divorce or report their husbands due to the social stigma and financial implications of the same.
Even in countries where marital rape is illegal, prosecuting it often proves problematic. For one, marital rape along with other forms of sexual abuse is chronically underreported with a 1999 survey in Canada finding that 78 per cent of sexual assaults were not reported to the police. In some countries, prevailing cultural norms are so ingrained that even if marital rape is illegal, people either don’t think it’s a crime or don’t know that it is. An Amnesty International report in Hungary found that 62 per cent of the 1,200 people surveyed didn’t know that marital rape was a punishable crime.
Prosecuting marital rape can also prove tricky because it is difficult to establish whether consent was given. Unlike with stranger rape, married couples frequently consent to sex, and proving they didn’t would have to show a pattern of abuse, corroborated by eyewitness testimony. In a 2016 research paper, Raquel Kennedy Bergen also pointed out that “marital rape is seen as somehow less reprehensible than rape outside of marriage.” She states that even when marital rape is prosecuted successfully, courts often pass shorter sentences based on the view that sexual violation is less serious if it occurs within a marriage. A 1994 Marquette Law review additionally states that police departments often label domestic abuse calls as a low priority and prefer to act as mediators in those situations.
Debate in India
According to the 2019 National Crime Records Bureau (NCRB), rape was the fourth most common crime against women in India, with an average of 88 cases occurring daily. Of those, in 94 per cent of the cases, rapes were committed by perpetrators known to the victim. Section 375 of the Indian Penal Code of 1860 (which is currently being contested in court) says that sexual acts by a man against a woman against her free will constitute rape. However, there are two exceptions to this rule. One protects the man in the event that he is performing a medical intervention and the second declares that “sexual intercourse or sexual acts by a man with his own wife” when that wife is above the age of 18, does not constitute rape.
Marital rape of an adult wife, who is officially or unofficially separated from her husband, is a criminal offence punishable by 2 to 7 years in prison. According to the Protection of Women from Domestic Violence Act, other married women subject to “sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman” by their husbands may request financial compensation from their spouses, including allowances and child custody. However, marital rape is still not a criminal offence and remains a misdemeanour.
According to lawyer Naval Gamadia, women have some means for legal recourse in the event of cruelty within marriage. Gamadia says cruelty is defined in various ways, including emotional cruelty and physical violence, in the Domestic Violence Act. If a man is found guilty of this, his wife can ask for protection from the state and is entitled to financial compensation. While the current situation is dire, Gamadia states implementing any legal change would not necessarily address the problem. This is because the barrier of proof remains high and many women, from almost all socioeconomic backgrounds, will be reluctant to report the incident over concerns of social stigma and a loss of honour.
Marital Rape: Consent, Marriage and Social Change in Global Perspective, M Gabriela Torres and Kersti Yllo, Oxford University Press, 2016
Family Law, Johnathan Herring, Oxford University Press, 2014
The Legal Treatment of Marital Rape and Women’s Equality: An Analysis of the Canadian Experience, Jennifer Koshan, The Equality Effect, 2010
An Overview of Marital Rape Research in the United States: New Research and Directions, Raquel Kennedy Bergen, Applied Research Forum, 2016
Domestic Violence and the State: Responses to and Rationales for Spousal Battering, Marital Rape and Stalking, Katherine M. Schelong, Marquette University Law Review, 1994
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