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.

Screen Shot 2016-03-11 at 10.41.43 am

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

Gender Violence in India Report 2014: Rape

The World Health Organization defines rape as ‘physically forced or otherwise coerced penetration … of the vulva or anus, using a penis, other body parts or an object’.[1] Rape is a subset of sexual assault, which is defined as any sexual act (including but not limited to penetration or intercourse) committed using coercion or without the victim’s consent.[2] People of any gender can be victims of rape and sexual assault, but the majority of victims are women. The Sage Publications Multimedia Encyclopedia of Women in Today’s World notes that most legal definitions of rape involve sexual penetration through force and without consent. The Sage entry, however, also acknowledges that there remains ‘widespread disagreement regarding the meanings of “penetration,” “force,” and “consent”’; definitions and application of the laws on rape vary from country to country, and even from jurisdiction to jurisdiction within a country.[3] Rape victims may thus be left to seek justice amid confusing laws, or be faced with sceptical law enforcement personnel who doubt their claims and experiences.

Another issue related to rape and sexual assault is that of ‘victim blaming’: holding victims of sexual assault responsible for the rape or assault because of their attire, appearance or actions. In India, there have been several documented cases of victim-blaming by politicians, spiritual leaders, lawyers, police officers, and even women’s commission members.[4] A pervasive victim-blaming culture can deter women from reporting rapes, can cause them to fear further victimisation at the hands of law enforcement, and can make it difficult to successfully prosecute those rapes that are reported.

Feminists and advocates combating violence against women have argued that acts previously not recognized as rape should in fact be included in legal definitions. For instance, many countries have included an exception for marital rape, either previously or in current laws, stating that intercourse between a husband and wife cannot be deemed rape regardless of whether one party did not consent.[5] Advocates have also argued against the notion that ‘in order for an encounter to count as rape, the victim must have displayed “utmost” (or even any) physical resistance.[6] Nevertheless, ambiguity remains both in many legal definitions of rape and in enforcement of those laws.

The problem of rape is often compounded by widespread misunderstandings about the nature and incidence of rape and sexual assault. Many believe, for instance, that perpetrators are usually strangers to their victims, that women must have been ‘asking for it’ by behaving promiscuously or going out alone at night, or that lack of overt physical resistance implies consent.[7] In fact, many if not the majority of perpetrators are known to their victims; rapes can occur at any time of day in virtually any context, not just when a woman is along at night; and victims may be unable to resist or choose not to struggle out of fear of even greater violence.

The issue of rape in India has garnered much greater national and international attention in recent years, in large part due to the 2012 Delhi gang rape case that spurred mass protests and an international outcry.

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2012 Delhi Gang Rape: A Case Study

On the evening of December 16, 2012, a 23-year-old physiotherapist and her male friend caught a bus home after seeing a movie in a Delhi suburb. The six men on the bus, including the bus driver, began to taunt the pair for being out late together. The man, to protect his friend, tried to stop the teasing, upon which the situation turned violent. The man was beaten with an iron rod and gagged, while the woman was dragged to the rear of the bus, brutally raped and beaten repeatedly by the six men over the course of several hours. Finally, the men threw the two victims out of the moving bus, leaving them on the side of the road.[8]

The pair was taken to a hospital, where the man began to recover from his injuries. The woman, however, remained in critical condition for several days before dying from her injuries in a Singapore hospital on December 29, 2012.[9]

 

This incident became a watershed in spurring discussion and action on violence against women in India. It provoked national and international outcry over the status of women in India, prompting the Indian government to re-evaluate its procedures for the treatment, prosecution and compensation of gender violence. The Delhi gang rape case catalysed numerous mass demonstrations and increased activism around gender violence in general and the legal system’s handling of it in particular.[10]

In response to public pressure for a speedy trial, the Delhi High Court in December 2012 approved the creation of five fast-tracked courts to prosecute rape and sexual assault cases. It was in one of these courts that five of the men accused of the gang rape were prosecuted on charges of kidnap, rape, murder, attempted murder and destruction of evidence. The sixth man, a minor at the time of the attack, has been prosecuted in the juvenile court system.[11]

In March 2013, one of the accused committed suicide in prison while still on trial. The juvenile offender was sentenced to three years in a reform centre. The remaining four were convicted; the court issued death sentences in all four cases.[12]

In March 2014, the Delhi High Court upheld the verdict of the death sentence for all four convicts. As of mid-July 2014, the execution was stayed pending an appeal by the lawyers of the accused, who alleged that the trial had not been conducted in a ‘free and fair’ manner.[13]

In a wider response to the issue, the national government and state governments of India set up various commissions to better investigate violence against women. On December 22, 2012, the national government commissioned a judicial committee headed by former Chief Justice of India J. S. Verma, to investigate the legal framework and precedents regarding the prosecution of sexual assault as well as to make recommendations for amendments to criminal law. The Justice Verma Committee appealed to lawyers, the non-profit sector, women’s groups, the civil sector and the general public for their input and suggestions.[14] The report, released in February 2013, points to failures of government institutions and the police in recognizing and prosecuting sexual assault in a timely and constitutional manner.[15]

In April 2013, based on the recommendations given by the Justice J. S. Verma Committee, President Pranab Mukherjee gave his assent to the Criminal Law (Amendment) Act, 2013, which made changes to the Indian Penal Code and Indian Evidence Act on laws related to sexual offences.[16]

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Know the Law

The Criminal Law (Amendment) Act, 2013, introduced various amendments to existing laws on rape and sexual assault in the Indian Penal Code (IPC). The Delhi gang rape case and the resultant public outcry were a powerful impetus in amending the laws. As Indian law stands today, the Act describes rape explicitly and exclusively as committed by male perpetrators against female victims. While this does encompass the majority of rape cases, it does not account for rape that occurs between other victim-perpetrator combinations, such as the rape of a man by another man.

Following the amendments introduced by the Criminal Law (Amendment) Act, 2013, Section 375 of the IPC defines rape as non-consensual intercourse, penetration using the penis or ‘any object or a part of the body’, or oral intercourse.[17] The Act also specifies circumstances where consent may be nominally given but not valid, such as: consent obtained through coercion or threats; consent obtained by falsely impersonating the victim’s husband; and consent from a victim ‘unable to understand the nature and consequences’ of what she is agreeing to due to ‘unsoundness of mind or intoxication’. When a victim is below 18 years of age, penetration or intercourse is considered rape regardless of whether consent was given.[18]

The law specifies that mere lack of physical resistance is not sufficient to be regarded as consent. However, it also states that consent may be given ‘by words, gestures or any form of verbal or non-verbal communication’, creating potential ambiguities in determining when a woman has consented to a given sexual activity and possibly making it more difficult to prosecute rape complaints.[19]

Section 376 states that rape is punishable by imprisonment of at least seven years and up to a life sentence, plus a fine.[20] In certain cases, perpetrators are required to receive harsher sentences, such as when the perpetrator is a police officer, public servant or member of the military; when he holds ‘a position of trust or authority towards the woman’; or when the victim is pregnant, disabled or a minor. In these situations, the minimum sentence is ten years, with the possibility of a life sentence, plus a fine.[21] Section 376A prescribes a minimum sentence of twenty years when a perpetrator commits rape or sexual violence that ‘causes the death of the woman or causes the woman to be in a persistent vegetative state’,[22] while under Section 376D, a perpetrator in a gang rape faces a minimum sentence of twenty years, up to life imprisonment, plus a fine.[23]

The Criminal Law (Amendment) Act, 2013, has faced criticism for ignoring the Verma Committee’s recommendations on a number of issues; for example, the Act has raised the age of consent from 16 to 18, and has failed to make changes to the Armed Forces (Special Powers) Act, which currently makes it more difficult to try members of the armed forces for gender-based crimes[24]. The Act also includes an exception for marital rape, stating that ‘sexual intercourse or sexual acts by a man with his own wife … is not rape’.[25] This means that, under Indian law, marital status takes precedence over lack of consent in determining rape and sexual assault cases. The Criminal Law (Amendment) Act, 2013, does criminalise rape committed by a husband against his wife when they are ‘living separately, whether under a decree of separation or otherwise’, and prescribes a sentence of between two and seven years’ imprisonment, plus a fine.[26] For the majority of women assaulted by their husbands, however, there is no legal avenue for a criminal prosecution. The only legal remedy available to wives is the Domestic Violence Act, 2005, which is a civil rather than criminal law that provides for domestic violence reporting mechanisms and monetary compensation for victims.[27] It does not provide for punishment of offenders. Women’s advocates have argued that the marital rape exception prevents India’s criminal laws from adequately protecting women and effectively legalises countless cases of rape and abuse that occur within marriages.

Keeping Count

The National Crime Records Bureau (NCRB) keeps track of cases of rape reported under Section 376 of the Indian Penal Code. The NCRB reported 33,707 cases of rape in 2013, an increase of 35.2% from 2012 (24,923 cases).[28] Although many rapes and sexual assaults are not reported, reports of rapes have increased in recent years as more victims have stepped forward. It is possible that growing public attention towards the issue has emboldened more women to seek justice; it has also been suggested that the actual incidence of rape is increasing, contributing to the growing number of reports.[29] One estimate suggests that in India, a woman is raped on average every 20 mintues.[30]

Table 1 and Figure 1 show the number of rape cases reported between 2009 and 2013 according to the NCRB data.

Table 1: Number of Reported Rape Cases, 2009-2013[31]

Year 2009 2010 2011 2012 2013
Number of reported rape cases 21,397 22,172 24,206 24,923 33,707

Figure 1[32]

Rape I

Note that the NCRB data only includes cases that fall under the Indian Penal Code definition of rape, not other forms of sexual assault that do not meet that definition.

The actual incidence of rape and sexual assault is difficult to determine with accuracy, as experts agree that the majority of rapes worldwide likely go unreported. Estimates of the proportion of unreported rapes vary from 54%[33] to 90%[34] of all rapes.

Of the rapes that are reported, the majority do not result in a successful prosecution. As of 2013, as many as three fourths of the perpetrators of the 24,206 rape cases brought forth in 2011 were either yet to face trial, had been acquitted or had the charges dropped.[35] Many rape and assault victims may decide not to report the assaults because of the fear of indifference or even retaliation from police officers and other law enforcement personnel. Victims have reported being asked demeaning questions by police, feeling as if the questioning procedures were like a second assault, waiting for hours to receive medical attention and being pressurized to marry their attackers or withdraw their complaints.[36]

[1] Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, World Report on Violence and Health, ed. Krug, E. G. et al, 2002, p. 149, http://whqlibdoc.who.int/hq/2002/9241545615.pdf, accessed 1st December 2014.

[2] Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, p. 149. See above note 1.

[3] Stange, M. Z., Oyster, C. K. & Sloan, J. E., ‘’Rape, legal definitions of’, The Multimedia Encyclopedia of Women in Today’s World, 2011, http://study.sagepub.com/sites/default/files/Ch09_Legal%20Definitions%20of%20Rape.pdf, accessed 1st December 2014.

[4] ‘NCW Notice to Mirje over Rape Remark’, The New Indian Express, 29th January 2014, http://www.newindianexpress.com/nation/NCW-Notice-to-Mirje-Over-Rape-Remark/2014/01/29/article2026716.ece, accessed 11th December 2014; Hullinger, Jessica, ‘India’s Deadly Gang Rape: 6 Troubling Attempts to Blame the Victim’, The Week, 9th January 2013, http://theweek.com/article/index/238542/indias-deadly-gang-grape-6-troubling-attempts-to-blame-the-victim, accessed 11th December 2014; Bhalla, Abhishek & Vishnu, G., ‘The Rapes Will Go On’, Tehelka Magazine, Vol 9, Issue 15, 14th April 2012, http://archive.tehelka.com/story_main52.asp?filename=Ne140412Coverstory.asp, accessed 11th December 2014.

[5] ‘Feminist perspectives on rape’, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/feminism-rape/#CriWhaCou, accessed 1st December 2014.

[6] See above note 5.

[7] ‘Common myths about rape’, RapeCrisis, http://www.rapecrisis.org.uk/commonmyths2.php, accessed 1st December 2014.

[8] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN, 16 December 2013, accessed 2nd December 2014.

[9] ‘Delhi gang rape: Chronology of events’, The Hindu, 10 September 2013, http://www.thehindu.com/news/national/delhi-gang-rape-chronology-of-events/article5079321.ece, accessed 2nd December 2014.

[10] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.

[11] ‘Delhi gang rape: Chronology of events’, The Hindu. See above note 9.

[12] ‘Delhi gang rape: Four sentenced to death’, BBC News India, 13th September 2013, http://www.bbc.com/news/world-asia-india-24078339, accessed 2nd December 2014.

[13] ‘Court puts off execution of two men convicted of 2012 Delhi rape’, Reuters, 14th July 2014, http://www.reuters.com/article/2014/07/14/us-india-gangrape-idUSKBN0FJ16P20140714, accessed 2nd Decemer 2014.

[14] Ed. Sanyal, P., ‘Recommendations of the Justice Verma Committee: 10-point cheat sheet’, NDTV, 24th January 2014, http://www.ndtv.com/article/cheat-sheet/recommendations-of-the-justice-verma-committee-10-point-cheat-sheet-321734, accessed 2nd December 2014.

[15] Justice (retd.) Verma, J.S., Justice (retd.) Seth., L, & Subramanium, G., ‘Report of the committee on amendments ot criminal law’, Justice Verma Committee on Amendments to Criminal Law, January 2013, http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf, accessed 2nd December 2014.

[16] Denyer, S., ‘India gang rape prompts tough new laws on sexual assault’, The Guardian, 5th February 2013, http://www.theguardian.com/world/2013/feb/05/india-gang-rape-stricter-laws, accessed 2nd December 2014.

[17] Criminal Law (Amendment) Act, 2013, Ch. 2(9), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8th October 2014. Sec. 9 of the Act inserts Sections 375, 376 and 376A-D into the Indian Penal Code. Section 375 defines ‘rape’.

[18] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375,. See above note 17. This section defines consent and lists circumstances in which consent may be given but not held to be legally valid.

[19] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375. See above note 17.

[20] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(1). See above note 17. This section establishes sentencing rules for rape convictions.

[21] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(2). See above note 17. This section lists circumstances in which a stronger sentence is required.

[22] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376A. See above note 17.

[23] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376D. See above note 17.

[24] ‘India: Reject New Sexual Violence Ordinance’, Human Rights Watch, 12th Febuary 2013, http://www.hrw.org/news/2013/02/11/india-reject-new-sexual-violence-ordinance, accessed 11th December 2014.

[25] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375, Exception 2. See above note 17.

[26] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376B. See above note 17.

[27] Protection of Women from Domestic Violence Act, 2005, Section 3, http://wcd.nic.in/wdvact.pdf, accessed 29th October 2014.

[28] ‘Chapter 5: Crimes against Women’, Crime in India 2013, NCRB, p. 81, http://ncrb.gov.in/CD-CII2013/Chapters/5-Crime%20against%20Women.pdf, accessed 26th September 2014.

[29] Special Correspondent, ‘Majority of rape cases go unreported: MPs’, The Hindu, 27th August 2013, http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/majority-of-rape-cases-go-unreported-mps/article5063089.ece, accessed 2nd December 2014.

[30] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.

[31] ‘Chapter 5: Crimes against Women’, p. 81. See above note 26.

[32] Figure 1 was generated from the data in Table 1.

[33] Kark, M., ‘Understanding Indian and Pakistani cultural perspectives and analyzing US news coverage of Mukhtar Mai and Jyoti Singh Pandey’, University of North Texas Master’s Thesis, UNT Digital Library, p. 4, http://digital.library.unt.edu/ark:/67531/metadc271840/, accessed 2nd December 2014. Kark quotes a figure from the Rape, Abuse & Incest National Network (RAINN).

[34] Srivastava, M., ‘The iceberg of rape’, India Today, 17th June 2009, http://indiatoday.intoday.in/story/The+iceberg+of+rape/1/46911.html, accessed 2nd December 2014.

[35] Fisher, M., ‘India’s rape problem is also a police problem’, Washington Post, 7th January 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/01/07/indias-rape-problem-is-also-a-police-problem/, accessed 2nd December 2014.

[36] Fisher, M., ‘India’s rape problem is also a police problem’. See above note 33.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

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.

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.