Ssrn-id2604919 (1).pdf

Criminalisation of Marital Rape inIndia Table of Contents

1. Introduction: a. Defining rape and marital rape b. What does the IPC specifically criminalize? 2. Culture/society of India 3. Reasons why Marital Rape is not criminalized a. Idea of marriage i. Implied consent and contract theory ii. Women as property iii. Marital unity iv. Public and Private divide 4. Why it should be criminalized a) Counter to Difficult to prove: Based on the ways rape is treated by the courts today i. Testimony by women not treated with suspicion because she is the victim ii. Injuries not required in the case of police officer (dominant authority figure) iii. Consent: yes, consent is hard to prove, but it is hard to prove in regular rape too. It should not be prohibitive. 5. Epidemic of underreporting 6. Reforms 7. Conclusion

1    

Electronic copy available at: http://ssrn.com/abstract=2604919

INTRODUCTION

According to Section 375 of IPC (Indian Penal Code) the rape has been defined as:

A man is said to commit" rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First- Against her will.

Secondly- Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 2    

Electronic copy available at: http://ssrn.com/abstract=2604919

Sixthly- With or without her consent, when she is under sixteen years of age.

Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

b. What does IPC specifically criminalized?

Section 376, Punishment for rape.--

(1) Whoever, except in the cases provided for by sub- section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

3    

2. Culture/Society of India

India is probably the only country where husbands enjoy the status of a god; the idea of a patiparmeshwar (literally, ‘husband god’) manifests itself in inequitable ways in the dynamic between a husband and his wife. Being part of this Indian culture, women accept and endure abusive behavior by their husbands with extremely bad resignation. India feels some sense of pride in having one of the lowest divorce rates in the world. Divorce is available as an option mostly to women who are financially independent or to those who have the support of their family. Research indicates that marital rape often has severe and long-lasting consequences for women. The physical effects of marital rape may include injuries to private organs, soreness, bruising, torn muscles, fatigue and vomiting. Women who have been raped by their husbands may suffer other physical consequences including broken bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence. Specific consequences of marital rape include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV1. Women who are raped by their partners are likely to suffer severe psychological consequences as well. Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress. Long-term effects often include disordered eating, sleep problems, depression, and problems in establishing trusting relationships, and increased negative feelings about themselves.                                                                                                                         1

 Garg, Shivani, Marital Rape (September 4, 2012)   4  

 

Psychological effects are likely to be long-lasting. Some marital rape survivors report flashbacks, sexual dysfunction, and emotional pain for years after the violence. And the woman has to live with the rapist husband which affects her more badly.2

3. Reasons why Marital Rape is not criminalized

There are many reasons which lead to non-criminalization of marital rape under Indian Penal Code. The main of all is the idea of marriage. These reasons are briefly explained below:

•

Implied consent and contract theory: The most common rationale for the marital rape exemption is Hale's notion that a marriage constitutes a contract. According to him, there is an implied consent and contract between husband and wife. The terms of this contract state a women’s irrevocable consent to have sexual intercourse with her husband, whenever he wishes. According to the theory of implied consent, marital rape can never occur because all sexual contact within a marriage is assumed to be consensual. Under the contract theory, as stated by Hale, when a woman marries, she forms a contract with her husband whether it is implied or expressed. It automatically gives a right to a husband to have sexual intercourse with her wife. Here the consent of the wife does not matter as the marriage indicates an implied consent itself.

                                                                                                                        2

 Garg, Shivani, Marital Rape (September 4, 2012), http://dx.doi.org/10.2139/ssrn.2152311.   5  

 

•

Women as property: Another common law origin which was a building-block in the foundation for the marital rape exemption was the idea that a husband owned his wife as property. A husband was no more capable of raping her wife since he could not take what he already owned. Since women were regarded as property, the common law treated rape not as a crime against women, but rather as a violation of a man's property interest.

•

Marital unity: A marital unity generally talks about the non-existence of woman as soon as she gets married. It means that after marriage, the wife's identity merges into the existence of her husband. This is called as Marital Unity Doctrine.

•

Public and private divide: Marital rape cannot be considered real rape the argument being that public law cannot enter the confines of the bedroom. There is a distinction between a public and personal life and Law cannot interfere in someone’s personal matters. Compulsory sexual relations in marriage are always advantageous to the male, as he can muster up more resources - material and physical.  It is not logical to consider that law respects the public-private divide only in regard to the regulation of abortion and unnatural acts but not marital rapes. Although it is also a very serious crime to be considered.

6    

4. Why it should be criminalized

Though the IPC is clear in that it does not criminalize marital rape and subsequent amendment petitions have failed, it may be argued that the court decisions defining the parameters in which rape can be found, can also be used to facilitate the argument to criminalize marital rape. As discussed previously, the two major reasons for not criminalizing are that proving that a rape has occurred in a marriage would be too difficult and that criminalizing marital rape would negatively affect the sacred institution of marriage. As to the former point, several court decisions in the late 20th century have systematical reduced the burden on rape victims to prove their assault. As that is the case, there is no reason why similar latitude should not be applied to cases in marital rape thereby making the crime a little easier to prove. Additionally, the aspect of marital sanctity in the 21st century has evolved and the application of it as a reason to not criminalize marital rape should be seriously questioned.

The major question evaluated by the courts in cases of rape is whether the woman consented to having sex. In the past, the main factor that prohibited all rape victims from having the court rule in their favor was the fact that, as the plaintiff, the burden of proof was on the woman to show that she did not consent. However, in the 1995 case of Karnel Singh v. State of M.P.,thhe Court held that the woman should not be considered an accomplice of the crime,

7    

but rather as the victim. As the victim, her testimony should not be considered with the same amount of suspicion as you would the offender’s. 3 At present rape is one of the few crimes in which the burden of proof lies with the defendant to prove that the woman did, in fact, consent to the sexual act. As this burden has shifted for all unmarried rape victims, it is only just that the same be applied to married victims as well. As far as proving rape, the burden should now fall on her husband.

One of the problems that would still exist for all rape victims, even when the burden of proof falls on the husband, is that of believing the woman’s testimony over that of her husband. The principle that judges may use a woman’s past sexual history or her moral character in determining the veracity of her testimony was overruled in Haryana V Prem Chand.4 As this is the case for rape victims, the same should be allowed for marital rape victims. Based on this principle, the idea that married women cannot be raped because they have had a sexual history with their husbands is no longer valid. Regardless of a woman’s past or her character, rape must be determined based on the particular facts of the incident.5 Additionally, the argument that a married woman’s testimony cannot be relied upon because it may be tainted with malice is wholly unreasonable. The rape trial procedure, harsh cross examinations and the general shame of publically admitting to have been raped, is an ordeal                                                                                                                         3  (1995) 5 SCC 518   4 5

 1990 AIR 538   Malik, Sumit. Reforming Criminal Law, New Trends in Rape Law 53   8  

 

that most women would not put themselves through willingly. In fact, it would be much harder on the woman to prove the lie of having been raped.6

The second issue faced by marital rape victims is that they generally do not have injuries showing their resistance. One reason for this is because they feel overpowered by their husband’s authority and submit to his will without putting up a physical fight.7 In the past, courts had ruled that injuries were a significant part of determining whether or not the woman has consented. In fact, in the Mathura case, the fact that she did not have any injuries was treated as one of the conclusive pieces of evidence that she did not put up a fight and therefore consented to the sex.8

However the Supreme Court has changed its opinion and

has held that injuries are not mandatory signs of resistance. In fact, it was ruled that in the case of the accused being a person in uniform, a lack of resistance could not be construed as sexual consent by the woman.9 Though this case was specifically dealing with a police officer, the reasoning used was that the officer had so much authority over the woman as to make her physical resistance not necessary. The same principle can be used to argue that in the Indian society, the authority or dominance of a husband in an average male-dominated marriage is so overwhelming as to make the wife’s physical resistance to his sexual advances moot.                                                                                                                         6

 Garg, Shivani, Marital Rape (September 4, 2012),  http://dx.doi.org/10.2139/ssrn.2152311    The Dark Side of Families: Current Family Violence Research 126   8  AIR 1979 SC 185   9  Malik,  Sumit.  Reforming  Criminal  Law,  New  Trends  in  Rape  Law  54   7

9    

Lastly, though the previously prohibitive issues of testimonial veracity and a lack of injury may have changed slightly in the favor of marital rape victims, the underlying issue of proving non consensual sex still remains difficult. However, this issue is not limited only to married women. It is often the case that even in stranger rape, the presence of consent in difficult to prove one way or another. It is somewhat more of an issue with married women because some tend to “consent” or at least not resist due to socio economic conditions. Specifically, they submit to the will of their husbands because the women are not only physically weaker, but feel themselves to be weaker in a general sense. This thought it perpetuated by the social conditions in most rural villages in India.10 Like single rape victims, married women also submit in order to protect themselves from physical violence. However, this is found to be even more relevant in the case of married women because they have usually been subjected to domestic violence in the past, and know what their husbands are capable of doing. Lastly, there is a tendency for married women to “consent” to having sex because they feel that they deserve it. They feel themselves responsible for whatever ill temper or marital dispute that may have initiated the rape. They also feel that it is their responsibility to have sex with their husbands even when they do not want to.11 The notion that neither the offender nor the victim understands that an offence against the human and

                                                                                                                        10 11

 The Dark Side of Families: Current Family Violence Research 126    Id.   10  

 

constitutional rights of the woman is being committed is not a valid excuse for legislation to not reflect the act as a crime.

EPIDEMIC OF UNDER-REPORTING

In a conservative country like India, marital rape is too tricky to deal with. Indian society is a dominant factor affecting the wife’s decision to stand-up for her rights. Two-thirds of the married women in our country have been subject to rape, no matter what their socioeconomic condition is. Marital rapes usually go unidentified and unreported in many parts of our country. There are several reasons for under-reporting of this the cases of marital rape. Marital rape, in legal terms, means an act which is a result of coercion and which is non-consensual. The various risk factors associated with marital rape are early age of marriage, lack of social and legal support and lack of familiarity with the husbandto-be. The survey conducted in the states of west Bengal and Gujarat observes that between 6 and 13 % of young married women reported forced sexual experiences perpetrated by their husbands12. Young women are not matured enough to be married and understand the relation properly. In Law Commission's 1955 report on the Hindu Marriage Act, they wrote "the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life... Living together is a symbol of such sharing in all its aspects. In today’s world, studies indicate that between 10 and 14% of married women are raped by their husbands.                                                                                                                         12  (IIPS  and  Population  council  2004)   11    

Women do not even report these cases for the fear of husband’s family and domestic violence by them. Wife is more likely to be advised to serve better the sexual needs of her husband. Due to this dominant authority given to husband by our society, women feel inferior and also are courageous enough to report these cases. A victim of marital rape is not harmed just physically but also her self-respect is harmed, especially because the rapist is her own husband. From a study of 6600 married men between the age of 15 to 65 in UP, it was found whether they had ever had sex with their wives “even if she was not willing’ and whether they had ever ‘physically forced’ their wives to have sex. Study suggested that one third of younger men and one quarter of older men reported having non-consensual sex with their wives at some time in their married life. Men’s report of forced sex on their wives underscore the likelihood of women under reporting marital rape cases. Lack of familiarity with the husband-to-be because of early marriage and sometimes, marriage without the consent of the girl can make the situation of non-consensual nature of sex even worse. In a study in west Bengal young women who had an arranged marriage were as likely to report a non-consensual sexual experience compared to those who had a ‘love’ marriage.13 Another risk factor associated is the lack of legal and social support. Dependence of young women on their husbands may compromise their ability to prevent non-consensual sex. They passively accept unwanted sexual relations for the survival of her marriage and to have financial security. Data from the national family health survey show that 62% of women who married at the ages of between 21 and 25 believed that a

                                                                                                                        13  Id.   12    

husband is justified in beating his wife for certain reasons. The wife’s financial independence plays a major role in aiding her to protect her body and her dignity.     REFORMS  

There is a need to amend the existing provisions of the law with regard to procedure evidence, punishment and conviction to ensure that the sexual assault is perceived as a social evil. The under-reporting is possibly because of organizations that want to help, but by making law more strict they cause more judges to no convict and therefore make society think that women are lying about their rapes, which in turn make less women want to report their cases for fear that they will be called liars as well. The 172nd Law Commission report had made the recommendations for change in the law with regard to rape such as rape laws should be made gender neutral as custodial rape of young boys has been neglected by law. Explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted. Representatives of NGOs have recommended the deletion of section 376A, along with the marital exception to section 375, to avoid the discriminatory classification between an offending husband and other offenders.      

13    

CONCLUSION

The immediate need is criminalization of marital rape under the Indian Penal Code. Mere declaration of a conduct as an offence is not enough. The real objective of criminalizing marital rape can only be achieved if the society challenges the prevailing myth that rape by spouse is not significant. Something more is required to be done for sensitizing the judiciary and the police. Marital rape has to be regarded as sexual assault and Indian society cannot continue to tread on women in the guise of promoting social cohesion and protecting the sanctity of marriage. The traditional concept of "marital privacy" is subversive of women's liberty and bodily integrity. It is that very concept that makes it so difficult, even today, to get marital rape criminalized and domestic violence prosecuted.        

14    

15