The Case for Criminalising Marital Rape

Last month, the Indian Government passed the Criminal Law (Amendment) Act, 2013, as a response to the brutal rape and murder of a young woman in December 2012 and the nation-wide protests triggered by this tragic event. Based on the recommendations of the well-received Justice Verma Committee report, the final amendments adopted by the government have been immensely disappointing, presenting a heavily diluted version of the Justice Verma recommendations, and have attracted domestic and international criticism for squandering the opportunity to make landmark changes to gender violence laws in India. Of the new legislation’s many shortcomings, one of the most troubling is the retention of an exception to Section 375 of the Indian Penal Code, which states: ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

What does this statement imply? That a man is incapable of raping his own wife? That non-consensual sex cannot exist in a marriage? Or perhaps it is symptomatic of something much more sinister, which lies at the core of our patriarchal society: the pervasive belief that marriage precludes a woman’s right to consent, stripping her completely of any sexual agency. As the Justice Verma report notes, denying married women their right to consent reduces them to ‘no more than the property of their husbands’. This subjugation of the Indian Wife is conveniently presented in the sanitised guise of ‘protecting the family’, an argument that was repeatedly cited by our elected officials in the parliamentary debates that preceded the passage of the new act. The Parliamentary Standing Committee on Home Affairs that reviewed the Justice Verma recommendations similarly asserted that criminalising marital rape would be nothing less than an ‘injustice’, destroying the very institution of marriage.

Is it really possible our lawmakers do not realise that an abusive marriage is already broken? That protecting the idea of the traditional Indian family is not worth condemning countless women to violence, indignity and shame? Any victim of rape, whether she is single or married, and whether her rapist is a stranger, or her next-door neighbour, or her uncle, or her own husband, has to cope with intense emotional trauma; how can the law then be so discriminatory? When access to good medical and psychological care is already problematic for recognised victims of sexual assault in India, what recourse is available for marital rape survivors?

The other mystifying part of the exception to Section 375 is the assertion that a man can be charged with rape if his wife is under fifteen years of age. To place this in context, the minimum legal age for a woman to marry in India is 18, and the minimum age of consent is also 18 (having been raised by the new legislation from 16, which was primarily done to discourage premarital sex). Taken together, this means that a girl between the ages of 15 and 18 can be legally raped by her husband (in spite of such marriages being illegal, a recent study found that 47% of women in India between the ages of 20 to 24 were married before they turned 18), even though an unmarried girl of the same age has been declared by the law as being incapable of consenting to sex! This implies that the ability to consent is considered irrelevant once a woman is married, for a married woman is assumed to have no right to consent. Somehow, the deep injustice of denying someone her right over her own body continues to be ignored.

While there are some legal options available to a woman in a sexually abusive marriage, they are far from adequate. The Protection of Women from Domestic Violence Act, 2005, while addressing all possible forms of violence in a marriage, including sexual abuse, is only a civil law, aimed at providing relief and compensation to victims of domestic violence, not bringing perpetrators to justice. The only option for filing a criminal case is through Section 498A of the IPC, which broadly addresses marital ‘cruelty’, defined as causing ‘grave injury or danger to life, limb or health (whether mental or physical)’. However, unless sexual assault is accompanied by severe physical injuries or psychological illness, prosecuting marital rape under this legislation is unlikely to be successful. Moreover, Section 498A, which also addresses dowry harassment, has become increasingly controversial, due to allegations of ‘false’ claims; a cursory search online brings up several websites advising the ‘real’ victims, namely husbands and their families, on how to escape the supposed machinations of their ‘wily’ wives. Thus, without the criminalisation of marital rape, women being sexually abused by their husbands have little hope of securing justice.

Some who support the government’s decision to include the marital rape exception in Section 375 argue that proving marital rape would be impossible, making any legislation pointless; after all, they say, a man is expected to have sex with his wife, it would be her word against his on whether it was consensual. Arguments such as this are indicative of a broader misconception: that rapists are always strangers and ‘true’ rape victims would have been virgins at the time of their assault, which is why doctors continue to use outrageous methods such as the ‘two-finger test’ to determine if a rape has occurred, and courts continue to insist on presenting this as evidence. If every hospital were provided with standardised rape kits, which would allow for a more thorough and sophisticated examination, then the challenge of proving sexual abuse, particularly for victims who have suffered long-term trauma (as is often the case with marital rape victims), would be diminished considerably. As part of the new legislation, the Indian Evidence Act was amended to state that a victim’s character or ‘previous sexual experience with any person’ would not be considered relevant in a rape trial. It is hoped that this, along with a recent Supreme Court judgment that called for the end of primitive and degrading ‘virginity tests’ as evidence of rape, will sound the death knell for these humiliating, outdated and ineffective procedures.

Moreover, sexual assault, particularly over a sustained period of time, is often accompanied by other telling signs of abuse. According to the most recent National Family Health Survey (NFHS-3), commissioned by the Ministry of Health and Family Welfare in 2005-06, women who have experienced sexual violence by their husbands also face a very high risk of both physical and emotional violence. In such cases, prosecuting the perpetrator for marital rape would not be an insurmountable task. Most importantly, even if a case may be difficult to prove, that is not reason enough to avoid criminalising such a heinous offence, and no woman should be denied due process.

Finally, to those who argue that criminalising marital rape will result in a multitude of ‘false’ cases, as detractors of Section 498A claim: for a victim of sexual assault, the ordeal does not end when she files a complaint against her abuser; her own feelings of shame, guilt and lack of self-worth, and the agony of being physically and emotionally violated are not all she must contend with. From the moment she speaks out, she is subjected to doubt, stigmatisation and even ostracism; at every stage, her motives, credibility and morality are questioned, and she is often forced to undergo a degree of scrutiny that even her abuser does not face. For a woman who is raped by her own husband, the shame is only compounded; the scrutiny only increased. She must face accusations of bringing dishonour to her family, stuck with labels that will follow her throughout her life (‘ungrateful’, ‘frigid’, ‘bad mother’). This climate of hostility towards actual victims is surely enough to dissuade most women from wrongfully accusing their spouses.

The NFHS-3 survey found that nearly one in ten married women in India have been victims of sexual violence by their husbands. Many of these women will choose to keep quiet about their abuse, even if marital rape is criminalised; but by removing the exception to Section 375, these women, at the least, will know that should they find the courage to speak out, they will be ensured some degree of institutional support; and crucially, the choice to speak out will be theirs. It is devastating that instead of giving them this choice, the law has forced them into silence.

References:

1. Aarti Dhar, ‘”Rape law changes welcome, yet an opportunity lost”‘, The Hindu, 2 May 2013, http://www.thehindu.com/news/national/rape-law-changes-welcome-yet-an-opportunity-lost/article4674324.ece.

2. Anahita Mukherji, ‘47% of young Indian women marry before 18’, The Times of India, 10 May 2011, http://articles.timesofindia.indiatimes.com/2011-05-10/india/29527428_1_child-marriage-ssa-icds.

3. ‘Delhi gang-rape victim dies in hospital in Singapore’, BBC News, 29 December 2012, http://www.bbc.co.uk/news/world-asia-india-20860569.

4. ‘Frequently Asked Questions on the Protection of Women from Domestic Violence Act 2005’, Lawyers Collective Women’s Rights Initiative, http://www.lawyerscollective.org/files/FAQonProtectionOfWomen1.pdf.

5. Justice J.S. Verma, Justice Leila Seth and Gopal Subramanium, ‘Report of the Committee on Amendments to Criminal Law’, 23 January 2013, http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf, pp 113-118.

6. Kanu Sarda, ‘Degrading 2-finger test must end: Supreme Court’, Daily News and Analysis, 23 April 2013, http://www.dnaindia.com/india/1825887/report-dna-exclusive-degrading-2-finger-test-must-end-supreme-court.

7. Nilanjana S. Roy,’Our bodies, our selves’, The Hindu, 8 March 2013, http://www.thehindu.com/opinion/lead/our-bodies-our-selves/article4485350.ece.

8. ‘One Hundred and Sixty-Seventh Report on the  Criminal Law (Amendment) Bill, 2012’, Department-Related Parliamentary Standing Committee on Home Affairs, March 2013, http://www.prsindia.org/uploads/media/Criminal%20Law/SCR%20Criminal%20Law%20Bill.pdf, p 47.

9. Piyashree Dasgupta, ‘Live: Lok Sabha passes anti-rape bill, RS votes tomorrow’, Firstpost, 19 March 2013, http://www.firstpost.com/india/live-lok-sabha-passes-criminal-law-amendment-bill-2013-666443.html.

10. Sunita Kishor and Kamla Gupta, ‘National Family Health Survey (NFHS-3) India, 2005-06: Gender Equality and Women’s Empowerment in India’, August 2009, http://www.rchiips.org/nfhs/a_subject_report_gender_for_website.pdf, pp 95-109.

11. ‘The Criminal Law (Amendment) Act, 2013’, 2 April 2013, http://egazette.nic.in/WriteReadData/2013/E_17_2013_212.pdf.

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