👤 Author : Ruhika Mandal
🗓️ Date Published : 12th August, 2022
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.
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.
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.
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.
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.
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.