August 26, 2011 was the 40th anniversary of Women’s Equality Day in the U.S. – a day which commemorates women getting the right to vote and to partake in governance. But given that even in the U.S. many women are subjected to domestic and sexual violence within their homes, makes me wonder if equality is something that exists merely on paper for women throughout the world.
Marital rape or spousal rape is an act of violent non-consensual sex, either vaginal, oral or anal in which the perpetrator is the victim's spouse. It is a form of domestic violence that uses force, the threat of force or the inability of the victim/spouse to consent. As an offence, social if not criminal, marital rape goes unreported, remaining largely unarticulated by the victim who often does not comprehend it as such. With most victims having either no knowledge of, or lacking access to safe spaces, police protection, counselling, independent sources of income, family support or even basic human rights, this crime remains a silent one, where any attempt by the victim to resist results in punishment, ranging from physical and emotional abuse to desertion and divorce. In the few cases where women do work up the courage to report instances of ‘domestic violence’, under which many countries club marital rape, the police have often been known to have advised these women to settle the matter and compromise or ‘adjust’ with the members of their marital families including their abuser husbands instead of being obstinate and damaging the fabric that holds the family together. Even the courts have been reported to be insensitive to the plight of some of these petitioners especially those seeking maintenance from their spouses, with the amounts fixed for maintenance being dismal and unrealistic in many cases and advocates appearing on behalf of or against these women, employing corrupt and unfair practices which adds to their victimization.
Rape: A Crime against Basic Human Rights
Rape is a serious offence against not just the body of a woman but against her spirit and the very essence of her being. In Bodhisattwa Gautam v. Subhra Chakraborty[1] the Supreme Court held that “rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights”, namely, the right to life enshrined in Article 21 of the Constitution. Acts of rape by a stranger are recognized as rape, and though highly traumatic for the victim are usually one-time events, made punishable to varying degrees under the laws of the land. In the case of marital rape however, the acts are continuous and repetitive, often accompanied by abuse – verbal, physical and psychological, and may include threats of violence and abuse to other members of the victim’s family, most often minor or vulnerable children. Another possible fallout of instances of marital rape is the exposure of many wives to STDs and HIV/AIDS contracted from their husbands who may have in turn contracted the same through visits to sex workers or casual unprotected sex with multiple partners. Statistics reveal that among adult women in India the prevalence of HIV is 0.25% as compared to 0.36% among adult males.
When a woman is denied the right to free choice she is denied the right to good health and is often condemned to a lifetime of ill-health and death that arises as a consequence of such denial.
The recent ‘Slut Walk’ campaign which originated in Canada and went global brought into focus the biased and judgemental societal view which ascribes the reasons for rape to the way a woman dresses or behaves in public, or even to the hours she may choose or be compelled to stay out in public spaces. But none of these stereotypes that society loves to label victims with feeds into the reasons for rapes that occur within the four walls of a person’s home, and in a space that requires and demands mutual respect and understanding.
Marital Rape: Sexual Violence within a Marriage
Why then are women subjected to forced acts of sexual violence within their marriages and in the sanctity of their homes from the very person society views as their protector?
One of the most common myths about marital rape is that it happens when the wife withholds sex from her husband – however research and evidence point to the contrary. Most often women themselves do not consider sexual assaults by their husbands as rape, and are less likely to report it. Adding to this is a common stereotype that is often fuelled by films, both pornographic and non-pornographic, where when a woman says ‘No’ to a sexual advance, what she really means is ‘Yes’ – with the thrill of being taken by force or against her will perceived as a turn on by their partners. But this is far from the truth for many women who are subjected to violent sexual assaults in their marriage. And while some men prefer to fantasize over what they consider to be the duty and a pleasurable one for the woman, the woman in turn is often blamed for being an unreasonable and ungrateful wife if she withholds sex or does not comply with the forced act – an act which can fall within the realm of cruelty, a cause for divorce.
Rape, and marital rape are acts of violence, a demonstration of power and control that the perpetrator can exercise over his victim, be it a stranger or the spouse of the attacker and an act of rage directed towards a person who the rapist can control and dominate – as is seen in many cases of marital rape, without fear of penalty or censure both legal and social.
The exclusion of married women raped by their husbands from the ambit of rape laws in several countries, including India, is reflective of the archaic view of the woman as chattel, or property of first – their fathers and then through marriage – of their husbands – to do with as the latter may desire, regardless of the wishes of the woman. Adding to it is that in cases of marital rape it is very difficult in practice for a woman to prove that sexual assault has occurred unless she can demonstrate serious physical injury.
“In childhood a female must be subject to her father, in youth to her husband, when her lord is dead to her sons; a woman must never be independent” – (Manusmriti – the laws of Manu, Ch. V, verse 148)
It was in 1736, that Sir Matthew Hale, in his legal treatise, ‘Historia Placitorum Coronae’ – ‘The History of the Pleas of the Crown’, negated recognizing 'marital rape' as rape since the wife has through mutual matrimonial consent and contract, in other words, by the act of marriage – “hath given up herself in this kind unto her husband, which she cannot retract.” Marriage by its mere institution therefore gave conjugal rights to the spouse, and since marriage could not be revoked except by a private Act of Parliament, it followed that a spouse could not legally revoke consent to sexual intercourse. Which meant that forcible sexual intercourse was not considered an offence in light of the duties which a wife was expected to perform, and consent to sexual intercourse being considered one such ‘duty’ that arose as a consequence of marriage – if there was consent, it was an obvious conclusion that there was no rape.
The concept of ‘consent’ with regard to rape has been explained in Stroud’s Judicial Dictionary (Fourth Edition), Volume 1 (1971) at page 555 as –
“Every ‘consent’ to an act, involves a submission; but it by no means follows that a mere submission involves consent,” e.g. the mere submission of a girl to a carnal assault, she being in the power of a strong man, is not consent (per Coleridge J., R. v Day, 9 C. & P. 724).
Stroud’s Judicial Dictionary also refers to a decision in the case of Holman v. The Queen ([1970] W.A.R. 2) wherein it was stated:
“But there does not necessarily have to be complete willingness to constitute consent. A woman’s consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is ‘consent’.”
This judgement in the latter half of the 20th century is a reflection of the continuum of thought with regard to the status of women in society, and more so in the case of married women, where consent of the wife is often secondary to the will of her husband, even in so-called evolved societies.
Marriage: A Partnership
The traditional definition of rape being – ‘sexual intercourse with a female not his wife without her consent’, provided husbands with a license to rape their wives, being exempted as they were in most countries by virtue of these exemption clauses from prosecution. These exemption clauses came to be included in most rape statutes – but we are now in the 21st century and today there is no justification for a concept as outdated as marital exemption. Marriage is now viewed as a partnership and the wife is no longer a chattel, a thing, a commodity to be possessed and worked over. But what is needed to bring about any change is an individual rights approach to the issue, a platform where women are treated as human beings with equal rights. Where violence against women, physical and/or sexual are treated as criminal acts, and as crimes against humanity rather than as niche offences which fail to garner public support in the passing of laws framed to penalize offences.
What the spousal exemption clause did and continues to do to women in many countries where it still exists, is to perpetuate the importance of the male authority figure, while diminishing the status of the woman. A violation of her basic human rights, further perpetuated by social marginalization and stigmatization based on gender, which in turn negatively impacts her physical and mental well-being, and feeds into a cycle of low self-esteem, fear and depression which worms its way through generations.
Even in the USA, up until 1976 rape laws in all 50 states of the Union contained a ‘Marital Rape Exemption Clause’ to prevent husbands who raped their wives from being charged with a crime. And while studies show that marital rape is the most common type of rape with 10 to 14% of all rapes being committed by husbands or ex-husbands, experts in the US believe this is an underestimation of the actual incidence of marital rape. It wasn’t until 1993 that marital rape nationally became a crime in the United States, and today even though all 50 US states have laws against marital rape, 33 of them consider marital rape a lesser crime than other types of rape – charging the perpetrator of the offence with spousal abuse or battery instead of rape.
In the U.K. it was only in 1991 in the case of R v R, [1992] 1 A.C. 599, House of Lords that the marital rape exemption was abolished. This judgement delivered by Lord Keith of Kinkel and unanimously approved by his fellow Lords held the rule of marital exemption to be “absurd” and a “common law fiction”, which had never been a true rule of English law, one that “had no useful purpose to serve today in the law of rape”.
In India, the problem runs deep, fuelled as it is by widespread illiteracy and ignorance of basic rights and entitlements. The dependence on the male authority figure is one that is perpetuated, with negative implications from childhood – women are expected to not just obey but to worship their husbands, furthering the notion of the husband being akin to God – the ‘Pati-Parmeshwar’, to whom they should pray to be bound, not just for one lifetime but for seven – of what can be plainly viewed as lifetimes of hell. They are indoctrinated into attributing all that is negative in their lives as punishments for wrongs that they have committed against these ‘living Gods’ by going against their will – and with many women being economically dependent on their husbands or living in joint family structures along with the extended families of their husbands, the fragility of their lives, tied as it is to their husbands’ existence makes them silent sufferers, preferring to take what is their lot – rather than to be without what is socially viewed as ‘security’ and ‘respectability’. In addition in India, unlike the U.S., there are no concrete statistics that demonstrate the numbers of women who suffer such abuse and humiliation, with conflicting analysis and reports emerging from the various studies conducted.
Even in the U.S. research on marital rape indicates that this form of violence is not confined to women of any specific age, race, ethnicity, social class, or geographic location, with the largest study, Russell (1990) stating that though women were raped by their partners at a variety of ages, almost 2/3rd of the women were first raped by their husbands when they were under the age of 25. The research also revealed that the more traditional amongst these women were more likely to blame themselves for the violence that they were subjected to, choosing to stay in these situations despite the abuse.
Sexual Slavery and Violence against Women
Over the recent past however countries worldwide have woken up to viewing marital rape as a form of sexual slavery and many nations including developing countries like Bangladesh and Nepal have criminalized this act. In India, however there is no law at present to identify marital rape and penalize husbands for forcing their wives to comply with their sexual demands, except for the Protection of Women from Domestic Violence Act (PWDVA), 2005 that covers sexual abuse of one’s wife/partner as a part of violence against women. This despite the fact that statistics reveal that more than two-thirds of India’s married women between the ages of 15 to 49 years have been raped by their spouses and over 70% of these women feel that denying their husbands this right over their bodies justifies any subsequent form of abuse, including wife beating.
The first time that marital rape came on the radar in India as an offence was in 2006, when the Indian legislature revised the Domestic Violence Law and the Indian Penal Code broadened its stance on what amounts to spousal cruelty by including emotional, verbal and economic abuse of women within its definition. In Maharashtra, in 7.3% of the orders granted under the provisions of the Act sexual abuse was alleged by the complainant woman, including forcible sexual intercourse by the husband and/or by members of his family. What is unfortunate however is that none of the orders discusses the instances of sexual violence alleged while granting the relief, and since the allegations of abuse under the purview of the Act are a combination of various instances of violence not restricted to sexual violence alone, it also makes it difficult to assess the attitude of the judiciary with regard to such claims including those of marital rape. At the same time the lack of discussion on the issue also seems to be a reflection of the societal attitude towards the subject matter and the taboo nature of acknowledgement and open debate on the topic.
The move to include marital rape within the purview of the Criminal Laws (Amendment) Bill, 2010, by amending the relevant provisions of the Indian Penal Code (IPC), the Indian Evidence Act and the Code of Criminal Procedure too has not come to pass, with the Bill merely increasing the age of consent for a married woman to 18 years instead of the previous 15 years under Section 375, IPC, and fails to extend cover to all married women above the age of 18 – the issue of 'conjugal rights' – an archaic term by all modern definitions of equality often coming in the way of identifying and penalizing acts of marital rape. With Section 376-A, IPC remaining the only clause in the statute books in India that specifically deals with marital rape, but only with regard to judicially separated partners.
Meanwhile Article 2(a) of the Declaration on the Elimination of Violence against Women includes marital rape explicitly in its definition of violence against women, and despite India ratifying the declaration, there has been no attempt by law-makers in India to take another look at this provision and include it within the definition of rape under Sec 375 of the IPC, despite the clamour that has gone up from various organisations working in the field. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) too specifically requires countries party to the Convention to take all appropriate steps to end violence against women. However, the continued prevalence of various forms of gender based violence worldwide, including sexual abuse and spousal rape demonstrates that the political will to implement suitable changes in domestic legislation is lacking even among many developed nations. India on its part having committed to achieving the Millennium Development Goals of the U.N. by 2015, which includes as Goal No. 3 the intention and aim of the United Nations and its signatory countries to – ‘Promote Gender Equality and Empower Women’ - has in fact done very little in terms of protecting women in situations where they are most vulnerable to abuse, namely, the marital home.
What gives a fillip to the notion of women being still being viewed as possessions under the law in India is the various outdated notions that continue to treat women as possessions under the law, for instance, the definition of ‘Adultery’ under Sec 497, IPC, which till date views it as – “sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape…” The consent or connivance of the husband being key to whether the act is one of adultery, the role of the wife being that of a mere object – the will of the owner/husband, whether to take into possession or not (the wife), the key determinant of criminality. This is another example of the glaring inequality with which the law, and in this case one of the prime penal provisions in this country perceives women.
Further diminishing the gravity of the situation with regard to marital rape is the inclusion of the offence within the ambit of domestic violence – which fails then to give due importance to this form of violence as a distinct offence against women, more so because often the acts of marital rape are accompanied by battery. But then again it would also be incorrect to think of all marital rape victims as battered wives, since not all of them are subjected to other forms of violence. The Russell study (1990) conducted in the U.S. revealed that 4% of married women in the survey who had been raped by their partners had not been battered. But what has emerged from various other studies conducted, is that what is often employed by the husband in lieu of violence is coercion, subtle or overt, at times accompanied by due force necessary to obtain compliance or submission to his will.
Conclusion: Need for a Fresh Perspective
What should be understood in a social context first and foremost is that unwanted sex or sex obtained by coercion or threat, whether violent or non-violent as does the forced display of pornography and the accompanying demands by spouses of their wives to perform or be compliant in similar acts are all forms of marital rape – and that it is necessary to identify and classify these acts as distinct from each other in order to successfully tackle this age-old crime, and at the same time provide support and assistance to survivors of marital rape on par with those offered to women in situations of domestic violence. However it is often seen that despite the legal willingness to identify certain crimes as offences against women, the social unwillingness to recognise them as such has denied justice to millions of women worldwide, turning it into an epidemic in need of an urgent cure.
What should also be understood is that marital rape is never a one-off occurrence. And women who are raped by their husbands/partners are likely to experience multiple assaults, completed sexual attacks, a breach of trust which causes them to fracture emotionally and psychologically leading to a cycle of fear, shock, depression, anxiety, suicidal thoughts, panic attacks, sleeping and eating disorders, distorted body image, low self-esteem, trust issues and post-traumatic stress disorders as a fall out of the act.
Education is a key factor in bringing about change, not just in terms of empowering the victims themselves but also and more specifically towards empowering society which often perpetuates these offences through generations by its unwillingness to deviate from what is seen as the acceptable norm, and in a larger sense and as a part of society – towards sensitizing the police and the judiciary, especially in a country like India where tradition and traditional roles often influence these public servants in the fairness of the treatment they meet out to the victims. It has been observed over the years in cases of rape that even though the presumption as to absence of consent rests with the victim (Sec 114-A, Indian Evidence Act) the judiciary has often cast this aside and has abetted in the further humiliation of victims. Compounding this is the trend that had emerged in the past two decades in cases of rape, of some members of the judiciary to allow for the acquittal of the rapist or a reduction in his sentence – if he married his victim. The message that such ill-thought out declarations and offers from the judiciary conveys is that the victim is of no consequence – first subjected as she is to an act of criminal violence that violates her not just physically, and then failing in its duty to send out a clear message to the rapist – that rape is an horrific crime, subject to the severest penalty available under the law. Given this scenario there is a seriously doubt in my mind that any legislation that provides for the inclusion of marital rape as an offence would ever be given its due unless a sea-change is brought about in the broader social context of recognizing it as a criminal act subject to stringent penalties.
The law as it is often seen around the world and more so in India does not work as a preventive mechanism or as a deterrent to crime. And even though marital rape may qualify as ‘cruelty’ or ‘rape’ under the various personal laws with regard to marriage and divorce, proving such occurrences is easier said than done. Hence the need for clarity with regard to the laws given that assaults on married women within their own household by their spouses, and more so those of a sexual nature are more prevalent than is reported and is usually recidivistic in nature. Under the current legal situation, given that marital rape is not even viewed as an offence in India the message that legislators send out to the public is that women who are in such situations are on their own – left to suffer repeated acts of abuse in silence. As Virginia Woolf rightly articulated in ‘A Room of One’s Own’ published in 1929 –
“Women have served all these centuries as looking-glasses possessing the magic and delicious power of reflecting the figure of a man at twice its natural size.”
Given the passage of time, precious little seems to have changed.
