The purpose of this paper is to look into a controversial area of law in several countries across the globe- marital rape. The evidence available on marital violence is increasing by the day as more and more women are reporting incidents of being forced into having sexual relations with their husbands. As already known, marital rape is a crime in most countries and an exception in the rest. Through the course of the paper, I will delve into the laws drafted against marital rape in a few of the countries in the west and throw light on the stark difference in some of the developing countries where the offence is not criminalized. I will try to draw a comparison among a few countries highlighting the necessity to listen to the rising chorus of the masses and criminalize the offence.
Introduction
Sexual violence against women is firmly rooted and politicized across the world. No other charge of crime exposes a woman’s credibility to extreme hostility and imposes the costs of shame and stigma to such a high degree as alleging rape. For centuries, politicians had claimed that as per the legislation, marital rape was a myth and that it was ‘impossible’ for a husband to rape his wife as they were ‘one’. Governments have just recently begun to prosecute husbands who rape. Poland was the first country to criminalize the offence in 1932. In 1976, under the influence of the second wave of feminism in the 1970s, Australia became the first common law country to approve changes making rape in marriage a criminal offence. In the 1980s many other common law countries like Israel, Ghana and the United States got rid of marital rape immunity. However, still in 32 countries including India, it is not a crime. Marriage is definitely not a right to ignore consent and unless rape after marriage becomes an offence by law it will continue being condoned. In spite of marital rape being committed behind the sacred doors of marriage, it is destructive because it goes against the very foundation of a marriage and the understanding one has, not only for a spouse and marriage, but also for oneself, is questioned.
Marital Rape in India
India, a country where eyebrows are raised everyday doubting the security of women has always identified a woman with her spouse. According to Indian law, it is assumed that the wife consents to all forms of sexual activity before entering into a marital relationship, so the Indian Penal Code, in its Exception (2) on section 375, provides complete immunity to the male partner against any sexual wrong done to his wife, and thus married women are not subject to any rape laws. The genesis of the marital rape exemption may be found in the renowned treatise on English criminal law known as the “History of the Pleas of the Crown,” which the then British Chief Justice, Matthew Hale, declared in 1736. Marital rape is also a violation of a woman’s fundamental right, as stated in Articles 14 and 21 of the Indian Constitution. The absence of criminalization of marital rape infringes on these rights. Even if the crime of marital rape happens within the private realm of a marriage, it is the State’s job to break through this barrier. If the state does not intrude into this private realm, a woman who is raped by her husband is left without recourse.
The distinction made between married and unmarried women in Exception 2 violates Article 14 since the categorization produced has no reasonable relationship to the statute’s underlying aim. The Supreme Court held in Budhan Choudhary v. State of Bihar $^1$ and State of West Bengal v. Anwar Ali Sarkar$^2$ that any classification made under Article 14 of the Indian Constitution is subject to a test of reasonableness that can only be passed if the classification is rationally related to the goal of the act. However, Exception 2 defeats the objective of Section 375, which is to protect women and punish those who commit rape. The Supreme Court ruled in The State of Karnataka v. Krishnappa$^3$ that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” Non-consensual sexual intercourse is considered physical and sexual assault, according to the same ruling. The Supreme Court later associated the freedom to make sexual activity choices with the rights to personal liberty, privacy, dignity, and physical integrity under Article 21 of the Constitution in Suchita Srivastava v. Chandigarh Administration$^4$.
Since 7th January,2022 a two-judge bench of the Delhi High Court has been hearing a slew of petitions demanding the Indian Penal Code’s marital rape exception to be repealed. Advocate Karuna Nandy made powerful arguments before the bench of the Delhi High Court stating that if Exception (2) on section 375 is removed then the long cherished constitutional goal of respect and dignity for all citizens will be realized. “It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal license to ignore consent.” In spite of the increasing demand to criminalize marital rape the government did not change its position. The affidavit said that the exception (2) of section 375 cannot be struck down because the ‘principles of natural justice’ requires the Centres consultation with all the stakeholders so that a comprehensive amendment is made.
The large number of petitions that arise time and again before the courts are mainly because the demands of the demands suggested by the Justice Verma Committee after the Nirbhaya rape case, were ignored. But some progress has been made in this direction as after the Independent Thought v. Union of India$^5$ case where the Supreme Court of India ruled that a husband having sex with his wife aged 15 to 18 years would be considered rape and not an exemption.
One of the judgements that really stood out to me was delivered by Justice J.B. Pardiwala in the Nimeshbhai Bharatbhai Desai v. State Of Gujarat$^6$ case. He believed that the legislative abolition of marital rape is the first step in educating cultures that dehumanising treatment of women would not be permitted, and that marital rape is a violent crime and an injustice that must be criminalised, rather than being treated as a husband’s privilege. Women should all get equal rights irrespective of their marital status but this can only be achieved if the people at the top change their outlook and also make a change in the law.
A Heinous Crime in Most of the Countries in the West
1. The United States of America
Marital rape is criminalised in 50 states in the US, though the details of the offence varies from state to state. In 1975, Nebraska became the first state to criminalize this offence. The first time a man was tried for raping his wife while they were still married in the Oregon v Rideout$^7$ case, 1978. Spousal rape was criminalised in three distinct ways by the states. The majority of states simply repealed the marital rape exception with no further changes. In other places, the exclusionary wording was replaced with language stating that marriage to the victim is not a defence. A few states have made “spousal rape” a separate crime. The Golden State, California had a long struggle with these spousal rape laws between 1979-2006. During the height of the women’s movement, California approved a succession of laws protecting women from domestic abuse and non-spousal rape, but it has continually refused to provide complete protection to spousal rape victims. After 27 years and 8 amendments, California virtually reached the same stage as Nebraska, which followed a straightforward approach in distinguishing between spousal and non-spousal rape. Legislators, jurists, activists, and community members worked together to repeal the common law protection for spouses. Despite jurisdictional differences, the marital rape exception had been repealed in all fifty states by the end of the twentieth century.
2. The United Kingdom
When Sir Matthew Hale of the United Kingdom argued that “the husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract”, it had a profound impact not only in the Country where he was a Chief Justice but all over the world. Until a historic court decision in 1991, this was the legal reality. In R v R,$^8$ the House of Lords laid that it cannot be certain that a wife submits herself to sexual intercourse at all times and circumstances. Since then, The Sexual Offences Act of 2003 specifically states that rape within marriage is unlawful. It was also declared that not only can marital rape be committed by married individuals but it can also be committed by individuals who live together as spouses but are not legally married.
3. Canada
Another country under the common law, Canada has a modest feminist success stories in combatting the martial rape myths. Before 1983, it was lawful in Canada for a man to rape his wife without facing any consequences. Myths about marital rape include the notions that women consent to sexual activity in married relationships on a continual basis, and that women cannot credibly allege rape if they have had consensual sex with their partner after the assault. However, these misconceptions have been debunked as products of a time when women were considered property of males, and they have no place in a society where women’s rights to equality are legally protected. In 1983, 1st January Bill C-127 came into effect when Jean Chrétien, then Canada’s Justice Minister and eventually Prime Minister, talked about the ‘inequity of the present system’. Then, a new provision of the Criminal Code was inserted to make it clear that sexual assaults in the context of marriage, whether the parties lived together or not, were illegal. The success of feminist law reform campaigners in persuading governments to take tougher action against sexual violence reached its peak when the marital rape in Canada was criminalised.
4. France
Marriage clearly does not grant one spouse the right to dispose of the other’s corpse as he pleases, disregarding their preferences or refusals. “Conjugal duty” has become obsolete. As a result, even within a legal partnership, consent is always required. In France, taking into consideration changes in morality and public opinion, the courts have completely modified their approach to case law. Marriage may no longer be used as a legal justification for forcing sexual behaviours on another person. The first time the Court of Appeal “recognised the crime” as an offence determined by the Crown Court was in 1990. The acknowledgement of this notion was only for the sake of “preserving the freedom of every individual” This ruling was confirmed on 11th June,1992. The legislation of April 4, 2006, passed with the goal of better avoiding marital violence, provided spousal rape a legal definition and added dissuasion power. As a result, now marital rape in France is more severely punished than rape committed by strangers.
A Comparative Analysis
There was and still is a perception that marital rape is less serious, less violative of women’s rights, and less psychologically devastating than rape committed outside of marriage. According to studies, a variety of factors have led to this perception, including the degree of force used and belief systems about women’s and men’s positions in society. However, this belief should change as these days the bulk of sexual assault is committed by someone the victim knows. In reality, about 75 percent to 90 percent of rape victims know of their assailant. There has been a slight improvement in the situation as only 36 countries, including India have not criminalized marital rape yet. In Arnesh Kumar v. State of Bihar,$^9$ the Supreme Court established its views very strongly that criminalising marital rape will result in the breakdown of society and familial structures, despite the fact that biased laws already exist. The apex institution in our country has been very stubborn and despite the protests all over to draft laws criminalizing this heinous crime, the Government continues to state that banning this offence will de-stabilize the institution of marriage in the country. In spite of agreeing that most of the progressive western nations have made laws prohibiting this offence, the Centre told the Delhi High Court in the recent judgement that “*various other countries, mostly Western, have criminalised marital rape but it does not necessarily mean India should also follow them blindly”*.
In countries like Iran and Iraq, where marital rape is not criminalised, we are aware of the degrading status of women. Their lives are confined to their homes, out of sight- nowhere in this public sphere. In such ultra- conservative societies feminism is a fringe concept, and laws criminalizing marital rape are unheard of. Violence against women is directly proportionate to their inferior status in society. On the other hand, if we look at a first-world nation like the United States or Canada we can see an increasing number of women in the work-force. In the United States, between 1980-90, the number of women physicians increased by 62% and there was also a 149% increase among lawyers. Co-incidentally or not, all these countries are the ones who have several laws for the protection of women, criminalizing marital rape is one of them. Drafting laws and taking measures to criminalise marital rape is a key step towards women’s empowerment and the sooner nations realise this the better. When it comes to gender equality, the Nordic nations – Denmark, Sweden, Finland, and Norway – are frequently singled out for praise. The demands of the women’s movement have really cleared the road for women to participate in all aspects of society. Gender equality and equal opportunities for women and men in public life, labour, education, political involvement, representation, and leadership have long been a priority for Nordic governments. In Sweden, rape inside marriage was made illegal in 1962, but Finland’s corresponding legislation didn’t take effect until 1994, making Finland one of the last European nations to criminalise marital rape. In 1967, marital rape was made an offence in Denmark. The UN Declaration on the Elimination of Violence against Women recognises a necessity for governments to eliminate marital rape exclusions, which defines marital rape as a type of violence against women.
When we think about countries with the same socio-economic and cultural set up as India, the first country that strikes a chord is Nepal. The Supreme Court’s landmark ruling recognised that marriage does not negate the condition of consent, and that any non-consensual sexual connection constitutes rape. The court said that marital rape violates the constitutional right to be equally protected and subsequently the right to privacy for women. The reasoning given was that it is not a very rational description of the law that an act performed against an unmarried girl constitutes an offence but the identical conduct committed against a wife does not constitute an offence and rightly so. In 2006, for the first time in Nepal’s history, the Criminal Code made marital rape a crime. If convicted for raping his wife, the husband would be subject to three to six months of imprisonment. However, owing to a lack of knowledge and the associated shame, just a few of instances have been documented. In the rare instances that are documented, couples are often sent home from the police station after receiving counselling, and extremely few cases. Then, in 2018 another positive step was taken in this direction as the punishment of marital rape was increased by adopting the Criminal Code Bill. From then onwards, if a man rapes his wife then he will receive a sentence for up to five years. Though the punishment for marital rape is not the same as rape outside of marriage, the criminalisation of the offence and the subsequent increase of the duration of the punishment is a significant step for a developing country in the east, Nepal, who is also India’s neighbour.
Bhutan, another south-central Asian country has explicitly criminalized marital rape under all circumstances under Section179 of the Penal Code. However, the marital rape is regarded as a ‘petty misdemeanor’ and punishment for the same is much lesser than rape outside marriage. The husband who has allegedly raped his wife also receives compensation called gao, which needless to say is a very discriminatory in nature as this fails to place the woman as the primary focus, to comprehend and address the crime from her point of view, and to offer complete justice. In 2009 after a landmark judgment passed by a local court in South Korea, no longer can a wife or husband get away with forcing their partner into sexual activity. The Busan District Court sentenced a forty two year-old man to a thirty month suspended jail term for raping his twenty five year-old Filipino wife. Even though there is no statute which explicitly criminalized marital rape, after a Supreme Court judgment in 2013 it was held that the punishment for marital rape will range from a minimum of three years to life imprisonment. Even in Thailand, marital rape was criminalized in 2007 in spite of strong controversy. After an amendment of Section 276 of the Criminal Code in Thailand, marital rape was regarded as an offence and it was held that it is possible for both the husband and the wife to engage in this kind of rape. The penalty ranges from a four year sentence, to the death sentence or even fines. Another south-east Asian nation, Philippines has acknowledged by law that rape of either party in a marriage, is a punishable offence since 1997. The punishment for the same ranges to a sentence of twelve to forty years depending on the severity of the crime.
So, as we can see it is not only the West, but several countries in the East that have also made marital rape a punishable offence. It is true that in many of the eastern nations that have criminalized the offence, the implementation of the laws are still slow. The condition of women in India’s neighbouring countries like Nepal and Bhutan have improved since laws criminalizing marital rape have been passed. They have definitely taken a step in the right direction. It is time for India, to not only draft laws but also to make state policies that will help to raise awareness so that the laws will be implemented and not invisible in the real sense. Though the criminalization of marital rape is a milestone, the sooner it is achieved, the faster will women’s empowerment become a reality.
Conclusion
The issue of sexual violence against women has been studied with an emphasis on misogyny’s causal significance, but legal analysis has overlooked the role of other forms of sexism, such as ostensibly “benevolent” sexism (or chivalry), in the perpetuation of rape culture, which normalises this violence. Furthermore, although accounting for the bulk of sexual assaults, discourses of sexual violence frequently neglect the epidemic of acquaintance rape. Rape has been gendered for so long, it is gendered in a way that favours men: men as fathers, men as husbands, and men as rapists. In the earlier days, as the husband and wife were considered to be ‘one’, marital rape was like a legal oxymoron- as nobody could rape oneself, nobody could sexually assault or steal from oneself, it was considered impossible. However, this argument in today’s world is redundant as women do not lose their identity once they get married. Once upon a time, married women were not allowed to vote, own property, inherit assets and enter into legally binding contracts. However, nowadays women, whether married or unmarried are no longer barred in all these aspects. Criminalizing marital rape would go a long way in acknowledging rights and immunities of women and it would get rid of the idea of the submerged identity of the husband and wife. A significant amount of progress has been made in this direction but the voices of the brave women who dare to speak up, in country after country, should definitely not go unheard.
End Notes
[1] Budhan Choudhary v State of Bihar, 1955 AIR 191.
[2] State of West Bengal v Anwar Ali Sarkar, 952 AIR 75.
[3] State of Karnataka v Krishnappa, (2000) 4 SCC 75.
[4] Suchita Srivastava v Chandigarh Administration, (2009) 9 SCC 1.
[5] Independent Thought v Union of India, (2017) 10 SCC 800.
[6] Nimeshbhai Bharatbhai Desai v State of Gujarat, 2018 SCC OnLine Guj 732.
[7] Oregon v Rideout, 303 Or App 504 (2020)505.
[8] R v R[1991] UKHL 12
[9] Arnesh Kumar v State of Bihar, (2014) 8 SCC 273.
Additional Resources
Ruhika Mandal
2nd year, West Bengal National University of Juridical Sciences, Kolkata
