Seeking Pleasure In Another’s Pain: Criminalising Marital Rape Still A No-No!

Posted: September 12, 2017

Criminalising marital rape is a no-no for our governments, on dubious grounds. Unpacking the flimsy reasons that we use to justify this crime even today.

The Oxford dictionary describes the meaning of rape as ‘The crime, typically committed by a man, of forcing another person to have sexual intercourse with the offender against their will.’ The Cambridge dictionary describes rape as ‘to force someone to have sex when they are unwilling using violence or threatening behaviour’.

Now, as a person of reasonable intelligence, I fail to see any sort of clause in the definition of the act of rape which in any manner normalises the act in case of any ‘special’ circumstances.

Simply put, Rape is violating the right of a woman to say ‘NO’ to sexual intercourse.

These days, heated debates are going on on a number of social media platforms, discussing the various aspects of marital rape.

It baffles me as a person, as a female, to think that this is even a topic for discussion and how on earth can any man or woman on this planet justify the act of rape.

Common arguments against criminalising marital rape

Some arguments that I have heard and come across are:

Women would take advantage of the fact that a husband can be booked for marital rape and this would lead to a lot of unfair and unjust arrests.

So, are we, as a society trying to turn a blind eye to one kind of injustice in order to avoid a form of injustice from happening and that too in anticipation? Are we that high on ignorance and that low on sensitivity along with being fabulously incompetent in making robust systems?

There is no such thing as marital rape because rape cannot happen between married couples.

Now, this argument cracks me up. It is like saying there cannot be pre-marital sex because to have sex one needs to be married or that, to have a child, marriage is necessary. Reason? There is no logical, biological or rational connection between sex and marriage, childbirth and marriage and similarly, rape and marriage. A rape is a rape irrespective of whether it is committed by a friend, a lover, a spouse, a father, a brother or a complete stranger.

Marital rape laws elsewhere…

Nepal in 2002 called out the baloney that the debate of marital rape is when its Supreme Court held that it went against the constitutional right of equal protection and the right to privacy. It said, “The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification.” Kudos to their SC !

Countries like Australia, Denmark, the Soviet Union, Sweden, Poland, the United States of America, the U.K (which previously believed that marriage meant a women’s consent for all sexual activities), Germany, France, Netherlands, Belgium, Luxemburg etc are a few countries that have with sensitivity and logic, dealt with the issue of marital rapes.

Then why in our society does this issue become the elephant in the room which the system chooses to conveniently ignore? Why is a rape just not treated as rape? Simply because the man and woman in question here are married? What freedom are we talking about if women even now in our society are not given the right of choice, the right to say no and the right to raise their voice against forced sexual intercourse?

A statement given by Chief Justice Sir Matthew Hale in The History of the Pleas of the Crown, published in 1736, 60 years after his death, says, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” This theory was called ‘the theory of implied consent’ which was adopted by all former British colonies.

The above statement was given by the man in 1736. This notion, this mentality and this idea of treating women as commodities is of the 1700s. Are we still that backward as a society, as a country that even today we ignore the blatant disregard for the rights of a woman that such statements hold and the kind of insult they inflict upon the freedom of choice of women?

The affidavit given by the Centre in context to the issue of marital rape is in itself infuriating and immature. The issue is so conveniently ignored, not because the issue in itself does not hold any ground but, because we have a weak and a highly incompetent system that is basically afraid of work, of thought, of implementation and of sustenance.

We, as a system again and again choose to ignore the plight of the women who go through this kind of violence day after day, month after month, year after year and have nowhere to go because the system chooses to consider their agony as pleasure.

First published here.

Top image via Unsplash

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