Consent, not culture, should drive ‘marital rape’ debate

In the last few years, there has been a lot of talk in India about sexual violence, especially stranger rape. Starting with the December 2012 gangrape of Jyoti Singh, the discourse on ‘safety’ and ‘protection’ of women has taken on several dimensions. There are apps that can alert your family if you’re in danger, clothes that make your rapist’s job difficult. There are calls for increased policing, for cutting down on night shifts for women, for not letting women use cell phones to prevent rape… The list is endless. And most items on the list are problematic, because these ‘good intentions’ come from a very flawed understanding of the problem.

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Screenshot of written reply given by Minister of Women and Child Development in Rajya Sabha on March 10, 2016. The reply is copied word-for-word from an earlier reply to a different question on marital rape, given by the Ministry of Home Affairs in April 2015.

And it is this same lack of understanding that lies at the root of the Govt’s latest reply in Parliament on maritalrape. “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.,” Union Minister Maneka Gandhi said in a written reply on March 10. This is the entirety of the Minister’s reply on the issue of marital rape. (It’s also exactly the same reply given by the Ministry of Home Affairs to another question on marital rape back in April 2015, so at least, they have been completely consistent in their stand!)

Meanwhile, the Govt is yet to decriminalise consensual gay sex — or indeed any ‘unnatural’ sexual activity including anal sex, oral sex, and the whole gamut of sexual activity that isn’t penis-in-vagina intercourse. While a curative petition is waiting to be heard in the Supreme Court, the Govt has, at the latest instance, refused to take a stand on the issue.

As many have pointed out, right now in India, rape is legal but consensual sex isn’t. And the reason for this is our understanding of rape itself: ‘Indian rape’ is not about consent. It’s not about the mental and physical trauma that the victim undergoes. Instead, it is about the ‘sexual purity’ of a woman, and the honour of her family. Anything that takes away either is wrong — and therefore, as members of the Home Affairs committee said back in 2013, “if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.”

By corollary, ‘Indian sex’ isn’t about consent either. Nor is it about mutual pleasure. Sex within a marriage is about duty, honour and reproduction for a woman. Any sex outside of this definition is not recognised as sex at all, and automatically becomes either ‘unnatural’, or ‘rape’.

While the Minister’s reply in Parliament is infuriating, not just for the views there but also the absolutely flippant nature in which they were presented, outraging about just her, or just this government will not help much. The political class feels that “marital rape has the potential of destroying the institution of marriage” and society doesn’t feel differently. The challenge before civil society and liberal media right now is to shift the debate away from ‘culture’, and steer it towards consent, or the lack of it. The challenge is to stop focusing on ‘family honour’, and start focusing on the physical autonomy of adult women.

Until that happens, until our euphemisms for rape, in all languages, continue to revolve around ‘loss of chastity’, rape and sex will continue to come with unnecessary prefixes.

See Also: Gender Violence in India Report 2014: Rape

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End Impunity for Crimes Against Journalists

Recently, a journalist in Karnataka received rape threats online, reportedly after she wrote about allegations against a godman. Chetana Thirthahalli was sent lewd messages and threats, and those targeting her demanded that she stop ‘writing critically on Hindu issues’.

Sadly, this is not an isolated incident. With the relative anonymity that the Internet provides, rape threats are becoming increasingly common on social media sites. The Organisation for Security and Co-operation in Europe says, it’s alarmed by how women journalists are singled out and attacked more than anyone else.

OSCE Representative of the Freedom of the Media, Dunja Mijatovic says, “The female journalists targeted most report on crime, politics and sensitive – and sometimes painful – issues, including taboos and dogmas in our societies. These online attacks tend not to address the content of the articles but instead degrade the journalist as a woman. For some female journalists, online threats of rape and sexual violence have become part of everyday life; others experience severe sexual harassment and intimidation. Misogynist speech is flourishing.”

In a report on mxm India, Ranjona Banerjee says, “Women remain easy targets on social media and women in journalism even easier. The easiest way to attack is of course by sexual innuendo because then it reduces women to one aspect of their existence: their genitalia and/or their reproductive uses.”

(Read CPJ’s detailed Journalist Security Guide.)

The online attacks are an addition to the threats to safety that women journalists face. They are stalked, raped and murdered while doing their jobs. (Read: Violence and Harassment Against Women in News Media by IWMF). In an interview to The Quint, NDTV Senior Editor Maya Mirchandani said, “A protest at India Gate can be more dangerous than a war zone. Honestly, in a war zone, gender is less of a handicap, it is harder to protect yourself in a civilian environment.”

Meanwhile, the media also needs to introspect on the sexism and sexual violence within the industry. The Tehelka case opened a can of worms, but the issue has been forgotten since. The International Federation of Journalists ‘media and gender’ country report says, “In India, the well-established and strong media landscape is full of women journalists. Yet while the advantage of class, caste and higher education has seen some women climb to the top rungs of the profession, the majority of women journalists today are still concentrated on the middle and lower rungs of the profession. Sexual harassment remains a critical issue for the industry. So too, while more men are found in full-time contract roles, large numbers of women in the country are moving or being pushed into freelance roles.”

(Read: Best Practices to Prevent Sexual Harassment at the Workplace by Vibhuti Patel)

Why India Should Criminalise Marital Rape

by Aparna Gupta

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” Hence for centuries, the rape laws around the world gave absolute immunity to the husbands, with respect to their wives.

However, the societal perception about marriage has now changed and wives cannot be regarded as mere property of the husbands. Internationally, at least 52 countries have explicitly outlawed marital rape in their criminal codes by April 2011. In India, the judiciary has time and again lamented about the lack of provisions to protect the wives from the acts of sexual perversity by their husbands. The Justice Verma Committee, the UN Committee on Elimination of Discrimination against Women and numerous women rights activists have recommended for the criminalisation of marital rape in the Indian statute. Then why does India still allow this grave discrimination to exist in its laws?

During the passage of the Criminal Laws Amendment Act in 2013, the Indian Parliament widely debated on criminalizing marital rape and finally chose an opposite stance. The law makers who opposed the move argued that it has the potential of destroying the institution of marriage. Such archaic notions are completely flawed as marriages thrive on mutual respect and trust and not through submitting to an abusive husband. It is the act of rape by one’s own husband that destroys the marriage and not the prosecution of the perpetrator.

There have also been concerns regarding difficulty of proof. This has lead to two contradictory issues. The opponents argue that it would be nearly impossible prosecute marital rape, because unlike an unmarried victim, the evidence of penetration is not considered sufficient evidence. Secondly, there is the danger of husbands being wrongly committed of a serious offence. However, these difficulties already exist in the cases where the victim is in an intimate relationship with the accused. The difficulty in prosecution cannot be considered as an excuse for not bringing the required reform in legislation. For instance, the prosecution might also be difficult in cases of murder, but that does not mean that murder shall not be considered as a crime.

The second issue, regarding protecting the innocent husbands from false accusation can be taken care of through implementation of certain measures. The Section 228 A of the Indian Penal Code could be amended to prevent the public disclosure of the husband and not just the victim. This is also important to protect the identity of the victim herself, as revealing the identity of the husband might lead to disclosure of her identity. The law could also compel the wife to give evidence in order to prevent the misuse of the act. Moreover, while such concerns are genuine, the existing power dynamics in the society reflect that investigation regarding allegation of rape is a notoriously difficult process for the complainant. In a country with abysmally low rates of conviction in rape cases, it is hard to believe that criminalisation of marital rape would lead to victimisation of the husbands.

Finally, the purpose of the legislation is to create deterrence against the acts of marital rape and to send a strong social message that marriage cannot be equated to consent. It is to provide legal support to the wives who have been battered, beaten and raped in the name of marriage. It is to tell the husbands that marriage does not give them the license to rape their wives. Despite difficulties in prosecution, if the law is at least able to bring this change in mindsets, then it would be a victory for the law. Therefore, it is time that the Indian parliamentarians look beyond their doubts and criminalise marital rape.

 

Aparna Gupta is currently a fellow with PRS Legislative Research’s Legislative Assistants to Members of Parliament programme. An engineer by training and student of policy by day, Aparna aspires to work in the domain of Human Rights and Gender Violence.

Marital Rape: Not a Myth

by Aparna Gupta

Every 6 hours, a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. According to the UN Population fund, two-third of the married women in India, aged between 15 and 49 years, have been beaten, raped or forced to provide sex by their husbands. These are not just mere statistics, but each represents a silent sufferer brutalised and caught in the glorified institution of marriage in India. There have been reported cases where women have been forced to have intercourse till their late pregnancies and have been brutally assaulted by their husbands just after delivery of a child. There have also been cases where a husband has transmitted sexually transmitted diseases to the wife leading to vaginal infection through forced sexual intercourse. Despite such horrifying realities the Indian marriage and rape laws continue to remain misogynist and treat wives as the property of husbands. Marital rape is not only legal in our country but it is somehow a taboo to even talk about it.

Section 375 of the Indian Penal Code says that sexual intercourse by a man with his wife who is not less than 15 years old is not considered as rape. The IPC goes further and Section 376B provides for a lesser punishment for the perpetrator for committing a sexual offence if the victim is his wife, living separately, under a decree or otherwise. These provisions under the IPC are not only inhumane and misogynist but also absurd and inconsistent with the other laws in India. Section 375 clearly gives the legal sanction to a man to rape his minor wife, while the age of consent under other laws is 18 years. There exists a grave anomaly as the Indian statute criminalises consensual sex between teenagers but turns a blind eye to the atrocities that are committed against women in the name of marriage every day.

The countrywide protests after the 16 December rape case lead to the amendment of the IPC through the Criminal Laws (Amendments) Act which brought in many progressive changes. However, the Indian parliamentarians abstained from omitting these highly sexist and patriarchal exceptions from the law, despite contrary recommendations by the Justice Verma Committee. The Verma Committee explicitly stated that marital relationship between the perpetrator and the victim should not be considered as a valid defence against the crimes of rape and sexual assault. Therefore it is essential that the Indian law makers and the society at large believe that a rapist remains a rapist regardless of his relationship with the victim.

It was heartening to see that in the budget session this year, both the houses of the parliament spent considerable amount of time in discussing the issues related to gender violence and atrocities against women. However, amongst more than 750 members in both the houses, only one raised the issue of marital rape and the inconsistencies under the IPC. While the growing number of brutal crimes against women has pricked the conscience of the parliamentarians and the people of India, we seem to have passively accepted the crimes committed to them within the confines of their home by their husbands as something normal. This needs to change- the patriarchal mindsets that consider wife to be duty bound to provide sex to her husband; the traditional understanding of a wife’s role as a submissive, docile homemaker. And the taboos that exist around the discussions regarding sexual relationship between a husband and a wife.

Therefore, there is a need to create more awareness regarding the heinous acts of sexual perversity that many wives suffer under the hands of the husbands. No society or culture can exist without change forever. Sometimes the laws of the land undergo transformation in the light of the social change and at other times they become the agents of social change. This is one of the latter times when the country needs a judicial awakening through uprooting the patriarchal sections of the IPC that propagate the archaic notions of marriage and consent.

 

Aparna Gupta is currently a fellow with PRS Legislative Research’s Legislative Assistants to Members of Parliament programme. An engineer by training and student of policy by day, Aparna aspires to work in the domain of Human Rights and Gender Violence.