Marital Rape: Are You Aware Of It And Its Legality?

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WHO estimates say that about 30% of women go through marital rape worldwide. The rape statistics of various countries vary drastically because some countries, such as India, have not recognized marital rape as a criminal offense. A marriage doesn’t allow the male counterpart to dominate the female counterpart and derive physical pleasure from her as and when he needs it. This is where derives the concept of marital rape. So, let’s look deep into marital rape and various laws regarding it in different corners of the world.

What is Marital Rape?

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Marital rape refers to the act of forcing your spouse for sexual intercourse without their willingness and consent. This absence of consent plays a significant role in making marital rapes a form of physical and domestic violence. Marital rape is also referred to as spousal rape; marital rape is again categorized into three types. They are:

  1. Battering Rape: It’s one of the most commonly reported rape types, with 48% of total victims. Here, spouses go through lots of violence, both physical and sexual. These rapes include a violent sexual episode whenever the husband wishes to. In case the wife denies it, she falls prey to physical violence. 
  2. Force-Only Rape: In this rape, the husband forces the wife to have sexual intercourse with him, denying which she faces assault. However, excessive physical violence is not involved here.
  3. Obsessive Rape: These sexual assaults are often referred to as oppressive and sadistic experiences wherein sexual acts are too violent.

Marital rapes can have devastating effects on the psychological and physical health of the victims. Rape committed by unknown strangers is a single-time pain and comes like a shock. However, when a spouse has to go through the same pain every other day, the emotional health is impacted negatively. Thus, rape by an unknown will leave back a bad and frightful memory. However, in marital rapes, the spouse has to continue living with the husband.

The Legality of Marital Rape in Various Countries

Since the late 20th century, many countries have stepped forward towards criminalizing marital rape. While some nations have removed exemptions from the legal meaning of rape, some have also recognized it as a particular offense followed by a specific punishment. Let’s discuss the top marital rape laws famous worldwide. 

Countries belonging to the Scandinavian and Communist bloc started criminalizing marital rapes. The first explicit law declaring it in Poland passed a criminal and punishable offense in 1932. Influenced by the second wave of feminism, Australia stood out first among the common law countries to criminalize it in 1976. In 1981, the first step towards this criminalization was taken by New South Wales. From 1985 to 1992, following New South Wales, other states’ governments also criminalized it in other states.

Common law countries such as South Africa, Ghana, Canada, New Zealand, Israel, Ireland, and the United States have stood against marital rape immunity since the 1980s. The criminalization and illegalization of marital rapes in the USA started in Nebraska in 1975. Since then, about 50 US states have criminalized marital rapes. In 1984, The Court of Appeals of New York amended their codes, thereby removing the exemption of marital status. 

European Parliament also took resolutions regarding women’s violence for criminalizing marital rapes in 1986. Following this, other nations such as Germany, Luxembourg, France, Belgium, and the Netherlands also stood. In the UK, The House of Lords made the common law principle, which stated that a marriage contract stands for the woman’s full consent to all kinds of sexual activity, null and devoid in 1991. 

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Finkelhor and Yllö | Image by Lawzik

On realizing that marital rapes stand against the right to privacy and other constitutional rights demanding equality in protection, Nepal also made its law in 2002. The UN Women’s 2011 report says that amongst 179 nations, 52 nations have brought amendments in their legislation, thereby declaring it as an explicit criminal offense. In other countries, the definition of rape just struck off marital status and its immunity, wherein the prosecution of the spouse can be the punishment according to customary rape laws.

Read More: Kerala Dowry Prohibition Act 2021, By Government Of Kerala🛑

Marital Rape & Laws In India

Marital rape hasn’t yet been criminalized in India. About 100 countries have taken their stand against this crime by looking at the statistics—however, about 36 countries, including Afghanistan, China, Pakistan, and India. 

According to Section 375 of the IPC (Indian Penal Code), rape refers to sexual assaults of all types, including sexual intercourse without the prior consent of women. However, there are exceptions to this too. Exception 2 to Section 375 states that the definition of rape doesn’t include sexual intercourse between spouses without the wife’s consent. However, the wife’s age must be above 18 years at least. Thus, this implies that marriage implies lifelong consent to deliver sexual pleasure to her husband. 

This is where the non-criminalization of rapes within the circle and institution of marriage arises. However, marital rapes violate Article 14 & Article 21 of the Indian Constitution, making it non-criminalized yet a criminal offense. Let’s look into it in detail.

Doctrine of Coverture

IPC was formulated and drafted during the 1860s. During those days, women, after marriage, lost their independence as a legal entity. These Victorian patriarchal norms disregarded the equality of men and women. According to the Doctrine of Coverture, married women had no right to own or inherit property. They also led to the merging and intermingling of identities between the two counterparts. The definitions of rape and its exceptions come down from the Victorian Era. 

Violation of Article 14

Article 14 of the Constitution of India says that within the Indian territories, no person would be denied their right to equality and will be protected by the law equally. However, Exception 2 to Section 375 divides the feminine community of the nation into two parts. Without any reasonable nexus, it discriminates the female section of the society under 15 years of age to the female section, which is married and above 15 years. 

Thus, married women are victimized for the same acts without any legal right, whereas unmarried women receive protection for the same. Therefore, marital rapes safeguard husbands when they rape their wives, violating Article 14.

Violation of Article 21

The Indian Constitution article 21 states that personal liberty and life can never be denied to a person except under the circumstances forced by law. The Supreme Court also stands on the point that Article 21 includes the right to adequate living conditions, dignity, health, privacy, a safe environment, and others. 

Moreover, the Supreme Court also believes in two other statements. Rape comes up like a crime against the fundamental rights of a human. The act of rape also violates the fundamental rights of the women, which mostly fall under Article 21. Sexual violence such as rape is an inhuman act that intrudes and violates the female victim’s right to sanctity and privacy. These statements are conclusions drawn from the judgments of various cases. 

Even though marital rapes take away the victim’s fundamental rights and intrude on her right to privacy, it still isn’t criminalized, making them a violation of Article 21.

Why Does Marital Rape Still Exist In Our Society?

Although marital rape has been criminalized in various parts of the world, the enforcement of laws is not fully-fledged yet. There are multiple reasons behind this. Lack of awareness among the public is the most important reason. In addition to that, gender norms of society put women in a more inferior position than men. Women fail to recognize the forms and laws against marital rapes.

For instance, Ireland has declared them illegal since 1990. But, by 2016, only two cases had been reported leading to the conviction of two husbands. The second reason is the norms prevailing in society. Society doesn’t recognize marital rape as an offense that doesn’t lead to laws’ proper and efficient enforcement. Marital rapes can be abolished from society only when legal recognition of marital rape goes well with their social recognition.

Is a new marital rape law required?| PGurus

A Word From Lawzik 

Marital rape is, undoubtedly, wrongdoing against the female section. Thus, all the other 36 nations, including India, which haven’t yet criminalized this heinous crime, should take their step forward. Violence against women can only stop through effective laws and guidance.

References

  1. https://www.journals.uchicago.edu/doi/abs/10.1086/493988
  2. http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.216.3998

Sushree Sangeeta Behera

content writer

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