‘Decriminalisation of Marital Rape - A Harrowing Picture in the 21st Century’
Continued Colonisation in the 21st Century
Stripping a woman of her fundamental rights owing solely to her status as a married woman is unconscionable. Still, the justifications supporting such an exemption of decriminalising marital rape make it even worse. This harrowing legal state of some countries stems from a predisposed notion of implied consent, where the institution of marriage has been awarded a lifetime licence to engage in non-consensual and forceful sex with the wife. Donald Dripps calls it “implied authorisation” for sexual penetration, arguing that the husband enjoys implied authorisation to penetrate the wife without her consent.[1] Countries that historically bore the weight of colonialism and were deprived of potential growth consequently find it incredibly difficult to adopt reforms in marital rape laws today. The effects of colonialism extend beyond the duration of a single group's rule, encompassing environmental damage, disease transmission, economic instability, ethnic tensions, and violations of human rights, among other issues.[2] Colonialism in these nations fostered the development of flawed belief systems and contributed to the negative stigmatisation of various issues, including economic, social, and gender disparities.The current regressive legal frameworks in developing nations have roots in an antiquated English law known as the "Doctrine of Coverture''. It is a derivative of the Judaeo-Christian doctrine of the husband and wife constituting ‘one flesh’.[3] Whilst England has largely discarded this doctrine, its remnants persist in the legal systems of the nations they once invaded. Eventually, due to such notions, an exception to criminalise marital rape seeped into the criminal codes of the then-colonised countries, such as India and Bangladesh.
During the drafting of the Indian Penal Code in British India (around 1860s), concepts like these led to exemption for marital rape in the definition of rape, giving men a position of unquestioned control in marital sex. In certain nations, the perception of marriage as a sacred contract wherein wives were obligated, as part of the agreement, to fulfil the sexual needs of their husbands rendered the concept of marital rape immortal.[4] In Imperial China, for example, the fathers of the bride and groom were contractual participants in a marriage, and the institution symbolised the 'submission of maturing children to family roles and filial duty.'[5] It is disappointing that, despite the conclusion of colonial rule and the long-awaited achievement of freedom and independence, numerous nations still find themselves overshadowed by their former colonisers. Instead of holding on to archaic regulations, they should promptly discard them and fully embrace their gained liberty. While it is primarily their responsibility for not amending the laws promptly, the culpability cannot be solely attributed to the countries. It must be shared with the forceful imposition of Victorian laws, which were inherently regressive, illogical, sexist, and erroneously deemed superior during that era. What is astonishing is that laws, once forcibly imposed on invaded nations, are now considered integral to the country's culture and intertwined with religious values and beliefs. Certainly, colonisation had a brutal nature, causing severe repercussions to the affected countries concerning various political and social issues. However, it remains both puzzling and profoundly disheartening to question why women are consistently deprived of their fundamental human rights.
Current Status of Marital Rape Globally and the Problematic Justifications
According to the World Bank database, 39 countries do not have any form of criminalisation for marital rape.[6] These countries lack explicit legislation criminalising spousal rape. Additionally, they do not permit women to file complaints against their spouses for rape or have specific exemptions for husbands to shield them from criminal penalties. Some jurisdictions even have laws that grant perpetrators immunity from criminal consequences if they marry their victims.
Legal approaches to marital rape vary widely across different countries, forming a spectrum that ranges from providing full exemptions for offenders to offering no distinction in status for those who commit sexual offences against spouses, intimates, or strangers.[7] On one extreme are nations like Ethiopia and Lebanon that expressly refrain from making marital rape a criminal offence, irrespective of the level of force involved in its commission, using key phrases such as “outside of wedlock”[8] and “other than his wife”[9] to describe the criminal act of rape. Lebanon also previously stipulated through article 522 of the penal code, which is now abolished for the good, that marrying the perpetrator after the rape served as a complete defence to the crime, establishing a troubling incentive for the victim to wed her abuser, assuming she has any choice in the matter[10]. There was no logical justification in this defence, as marrying the abuser only exposed the victim to greater harm. This is because the abuser may harbour resentment towards her for being compelled to marry. Consequently, women found themselves trapped in a perilous and exploitative situation. Following a United Nations report, one of the many reasons this quandary of marital rape has proven challenging to iron out in Lebanon is the continued existence of numerous religious courts.[11] Coming closer to the spectrum, the Penal Code of Singapore includes an exemption for marital rape unless the wife is below the age of 13 or the spouses have formalised a separation agreement.[12]
Throughout history, and in certain contemporary societies, there exists a practice where if an unmarried woman experiences rape, she is compelled to marry her rapist.[13] This practice is done in an attempt to preserve her 'honour' and relieve her family of the perceived shame associated with the loss of their daughter's virginity. Such ludicrous and baseless justifications are founded by literate, powerful, and sane members of the legislative bodies. Another linked rationale is that the raped woman has been ‘spoiled’ for use by her future husband, who is supposed to be entitled to exclusive sexual access to a woman. Such widespread misconceptions are deeply rooted in various countries and thus contribute to the contentious nature of discussions involving both rape and marriage, often shrouded in taboo.
In India, the institution of marriage is considered a sacrosanct union, where the idea of any such wrongdoing as marital rape is deemed virtually impossible. Yet, according to the statistics by the National Family Health Survey, 32% of married women experienced physical, sexual or emotional violence by their current husbands, and 82% of married women aged 18-49 who have experienced sexual violence reported their current husbands as the perpetrators.[14] The legislative bodies and the elected government conveniently turn a blind eye to this reality to uphold the fictional sanctity of marriage. Alternatively, they swiftly argue that the nation is unprepared for such a change, citing factors like “illiteracy, poverty, various social customs and values, religious beliefs, and the societal mindset treating marriage as a sacrament.”[15] Shame will be attributed to rape survivors but never to such a disturbing thought process that prioritises fallacious religious and cultural beliefs over the protection of women’s fundamental rights. Similarly, proponents of a conservative view argue that it is essential to safeguard men from unfounded accusations or the potential of criminal complaints initiated by their wives.[16] They contend that shielding men from criminal responsibility for marital rape contributes to maintaining peace and harmony within the household.[17]
The Undeniable Truth
The reality is that none of the mentioned justifications holds any ground compared to women's rights. There is no need to overly complicate the issue of marital rape with such fabricated justifications, as they can easily be debunked. As time progresses and there is an increasing call for gender justice and equality, this exception has become an anachronism in many countries. Tthere is increasing awareness and condemnation of gender-based violence, including marital rape. This shift in attitudes reflects a broader cultural awakening to the importance of gender equality and women's rights. While challenges remain, including entrenched cultural norms and resistance to change, it is not impossible to implement change. Nepal’s judgement in a 2002 case invalidating the spousal exemption exemplifies this possibility. The dynamism of the law should not falter in adapting to changing times. However, it is understood that if nations persist in living in the past, the capacity of the law to bring about change is limited owing to the crucial role societal attitudes play in harnessing the law as an instrument for effecting tangible transformations. What remains unchanged is the fact that non-consensual rape is a criminal act. It is a crime and should be treated as such without granting husbands any form of impunity.
[1] Dripps, Donald A. 1992. “Beyond Rape: An Essay on the Difference Between the Presence of Force and the Absence of Consent.” Columbia Law Review 92 (7): 1780–1809.
[2] Erin Blakemore, October 2023; National Geographic (<https://www.nationalgeographic.com/culture/article/colonialism#:~:text=Colonialism's%20impacts%20include%20environmental%20degradation,outlast%20one%20group's%20colonial%20rule.>) accessed 4 February 2024
[3] NF Cott , Public Vows: A History of Marriage and the Nation (Cambridge, MA, Harvard University
Press 2000 ) 11.
[4] VASANTHI VENKATESH AND MELANIE RANDALL, ‘Normative and International Human Rights Law Imperatives for Criminalising Intimate Partner Sexual Violence: The Marital Rape Impunity in Comparative and Historical Perspective’ 2017
[5] M Harvey Sommer , Sex, Law, and Society in Late Imperial China ( Redwood City , CA , Stanford University Press 2000 ) 39.
[6] Anderson, Michelle J., 'Marital Rape Laws Globally: Rationales and Snapshots Around the World', in Kersti Yllö, and M. Gabriela Torres (eds), Marital Rape: Consent, Marriage, and Social Change in Global Context, Interpersonal Violence (2016; online edn, Oxford Academic, 23 June 2016), https://doi.org/10.1093/acprof:oso/9780190238360.003.0012, accessed 4 Feb. 2024.
[7] Anderson, Michelle J., 'Marital Rape Laws Globally: Rationales and Snapshots Around the World', in Kersti Yllö, and M. Gabriela Torres (eds), Marital Rape: Consent, Marriage, and Social Change in Global Context, Interpersonal Violence (2016; online edn, Oxford Academic, 23 June 2016), https://doi.org/10.1093/acprof:oso/9780190238360.003.0012, accessed 4 Feb. 2024.
[8] ETH. CRIM. CODE art. 620, Proc. 414/2004 (2004).
[9] LEB. PENAL CODE art. 503 (n.d.).
[10] Anderson, Michelle J., 'Marital Rape Laws Globally: Rationales and Snapshots Around the World', in Kersti Yllö, and M. Gabriela Torres (eds), Marital Rape: Consent, Marriage, and Social Change in Global Context, Interpersonal Violence (2016; online edn, Oxford Academic, 23 June 2016), https://doi.org/10.1093/acprof:oso/9780190238360.003.0012, accessed 4 Feb. 2024.
[11] Matilda Martin, ‘Lebanese Women Are Fighting to Make Marital Rape Illegal’
(<https://www.vice.com/en/article/5dpaaa/the-women-fighting-to-make-marital-rape-illegal>) Accessed 3 February 2024
[12] SING. PENAL CODE §375 (2008)
[13] Alejandra Gomex Duque, ‘Towards a legal reform of rape laws under international human rights law’ (2021), Issue 3, Volume XXII. (<https://www.law.georgetown.edu/gender-journal/in-print/volume-xxii-issue-3-symposium-2021/towards-a-legal-reform-of-rape-laws-under-international-human-rights-law/ >) Accessed 3 February 2024.
[14] Aisha Akram, ‘The Decriminalisation of Marital Rape: How India Continues to Refuse Justice to its Married Women’ (<https://ohrh.law.ox.ac.uk/the-decriminalisation-of-marital-rape-how-india-continues-to-refuse-justice-to-its-married-women/#:~:text=The%20National%20 Family%20Health%20 Survey,2>). Accessed 4 February 2024.
[15] “Concept of Marital Rape Can’t Be Applied in Indian Context ”: Maneka Gandhi ’,
Indian Express, 11 March 2016(<indianexpress.com/article/business/budget/imarital-rape-conceptmaneka-gandhi-indian-context/ >) accessed 4 February 2024
[16] Lana Clara Chikhungu, Mark Amos,Ngianga Kandala, II,Saseendran Palikadavath. ‘Married Women’s Experience of Domestic Violence in Malawi: New Evidence From a Cluster and Multinomial Logistic Regression Analysis’ (2019) Volume 36.
[17] Lana Clara Chikhungu, Mark Amos,Ngianga Kandala, II,Saseendran Palikadavath. ‘Married Women’s Experience of Domestic Violence in Malawi: New Evidence From a Cluster and Multinomial Logistic Regression Analysis’ (2019) Volume 36.