SHOULD THERE BE A LAW ON MARITAL RAPE? by Anooja SG

Rape is the most heinous crime persisting everywhere in the world. Irrespective of age and gender people are victims of this sexual assault and among them women are the most vulnerable.Among the various types of sexual offences being reported, “marital rape” is a controversial one because many countries still do not accept it as a crime.Considering the alarming increase in the number of people voicing about this sexual offence, that is, marital rape ,there arises the question of whether to consider it a crime and whether to make a law on marital rape.

Marital rape is defined as “the rape committed by a person to whom the victim is married”.It consists of the use of physical force,threats of force and violence.It can also be stated as “the sexual intercourse without the spouse’s consent”.This but is a debated definition because everywhere it is considered that sexual intercourse is a conjugal right of the married couple and that there is an implied consent especially from the women.There is a lack of public knowledge that sexual intercourse in marriage without consent is illegal.This has made marital rape an exemption and its historical evidence comes from ‘History of the Pleas of the Crown’ written by Sir Matthew Hale.He stated that “The husband cannot be guilty of rape committed by himself upon his lawful wife,for by their mutual consent and contract the wife hath given up herself in this kind unto her husband,which she cannot retract”.This time immemorial concepts of “implied consent” and “conjugal right of sexual intercourse” can be considered as reasons for marital rape not being recognised as a sexual offence.These two concepts are widely accepted as the basis of the institution of marriage and thus most countries are reluctant to identify marital rape as an offence.Along with this family and society play a vital role in asserting that marital rape is nothing but a stigma.Because of the social pressure even many cases are rarely reported or discussed.But at present there are many countries which have criminalized marital rape.According to the UN Women’s 2011 report,out of 179 countries for which data was available,52 had made marital rape a criminal offence while some countries still have not criminalized marital rape.Recently the UN Women in its flagship annual Progress of the World’s Women Report,2019 stated that only 4 in 10 countries criminalized marital rape.Around 36 countries in the world refuse to criminalize marital rape and India is one among them.

Marital rape can be classified into three types mainly.They are ‘force only rape’, ‘battering rape’ and ‘obsessive rape’.In ‘force only rape’,the husband uses threats and violence to the degree necessary to coerce sex while in ‘battering sex’ beatings and rape are ombined.’Obsessive rape’ is the most sadistic form in which the abuser is obsessed with rape and use violent act against the victims.In the famous case, R.v.R, the House of Lords under English criminal law determined that it is possible for a husband to rape his wife.This acted as a precedent in stating that marital rape is not an exemption to general rape laws.This decision has in fact recognised that relationship between victim and abuser is not at all an excuse considering the fact that in a majority of rape cases being reported the abuser is either a family member or an acquaintance.The conception of consent to sexual intercourse on marriage was regarded as unacceptable as well.It also made people to question the denial of right to equality to married woman as that of an unmarried woman.This decision has scraped down the discriminating law against marital rape victims.Rape,whether done to a married woman or unmarried woman,whether committed by husband or any other person has the same grievous effect.Countries that have criminalized marital rape has strongly advocated that women are no longer properties of men and they have equal rights as that of a man in taking decisions regarding their own bodies and that consent to sexual intercourse in marriage must be strictly adhered to.This must be acknowledged by the countries that are still refusing to criminalize marital rape.The interest of the victims must be prioritized based on the fundamental rights of right to equality and right to life.

Should marital rape be considered as an offence? To answer this, we must consider it with respect to interpretation of rape.Rape is defined as forceful sexual assault or sexual intercourse without the consent of the women.The physical and mental effects to the victims are severe and it is considered as a violation of human rights and dignity of the victim.Being married does not deny a woman of these basic human rights.Thus marital rape is essentially a type of rape and it comes within the purview of rape and therefore, there shall be no exception to criminalize it.In most of the reported marital rape cases the victims are subjected to rape on a daily basis which causes severe psychological effects.The society and the existing legal systems turning a blind eye to marital rape makes it difficult for victims to report the heinous incidents they suffered.Therefore the first task is to make the society acknowledge marital rape as an offence and then to make the victims realize that tolerance of marital rape and sexual assaults and violence will only increase the occurrence of such violent acts. Criminalisation of marital rape and implementation of marital rape prevention laws are the need of the hour.This will instill in the victims a hope that the law and the society are with the victims and not with the abuser.

The United Nations itself has declared marital rape as a violation of human rights.But still many countries refuse to criminalize it based on the arguments that it will destabilize the institution of marriage and will provide more false allegations against men.It is also argued that proving marital rape is impossible.These arguments can only be considered as excuses of a misogynistic society.The brutality of marital rape is beyond people’s understanding considering the fact that ones own husband stand accused of the violent acts.Therefore considering the grievous nature of the act it must be certainly criminalized and strict laws for its prosecution must be laid down. Implementing a law similar as that of general rape laws is necessary to punish the abuser as well as to provide maintenance to the victim.It will also help many women to come out of such violent marriages and to also report their sufferings without the fear of society and its norms.

Law must be essentially one which provides justice and eliminates discrimination of any sort.It must definitely aim to create gender equality.Formulating marital rape laws not only eliminates the inequality of rape laws existing between married and unmarried women but also put an end to the existing patriarchal authority over marriages.Marriage, if is a sacramental institution,then the basis of it must be love,affection and equality among the partners and not sexual assaults and violence.A strong criminal law on marital rape is required to keep in check this brutal act and to provide a better and safe home to women around the world.

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