Is Rape Just ‘Trespass’ Instead Of Criminal Violation Of A Woman, Even If In A Marriage?

Trigger Warning: This deals with rape, marital rape, and violence against women, and may be triggering for survivors.

The debate on acknowledgment of marital rape that is currently going on between the Judiciary and legislature is nothing new. It has been simmering not only in India but the world elsewhere.

As a common woman it is beyond my reasonable mind and logic –  Why a forced sex that has happened without consent is rape under Indian Penal Code but not a rape if done by a husband. The paradox is like selling poison by changing its packaging.

Let’s look at some colonial history of the marital rape law

To explain this in simplest language let me share a true piece of history. The story is based in medieval France.

Wife of a warrior is raped by a man in the absence of her husband. When she attempts to seek justice, she learns that as per law of the land, she is property of her husband and thus rape by (another man) is a crime against property of husband. Thus, only husband, as owner, has right to ask for justice when the wife is raped.

How this crime will be decided is also interesting and throws sufficient light on how a woman’s testimony for a crime against her body is perceived. The warrior husband is allowed to challenge the alleged rapist for a duel. If the husband wins the duel, justice is delivered; but if the accused wins the duel, then it would mean that the victim was lying and she would be killed too.

This is the plot of movie ‘Last Duel’ which is based on a fictionalized true story.

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Coming back to our question – how the above story is linked to marital rape. Here again I will take you back to real history, this time to Britain.

Judge Matthews Hale formally laid down the foundation of exemption of marital rape by dismissing marital rape on ‘technical’ grounds and giving his infamous doctrine, called Hale’s Doctrine, by stating – “The husband cannot be guilty of a rape committed himself upon his lawful wife, for by their mutual matrimonial consent, the wife has given up herself in kind to her husband.’

So here, the marriage was reduced to an agreement where husband was given ‘consent’ once for all to treat the wife in any way he wanted. Something similar to buying an item with lifetime guarantee. The Hindi translation of rape – Izzat lutna – is nothing but an Indianized version of Hale’s statement. In fact, the root of issue why the possibility of marital rape is denied by many. Because how can a husband rob honor of his wife whose honor already belongs to him?

If we juxtapose the laws guarding property and women, they are almost identical. Under Common law, rape can be seen as an extension of trespassing as it was seen as a crime against someone’s i.e. husband’s property. And therefore, a husband trying to rape/steal his wife was a legal impossibility.

How does this connect to India?

Before I make the connection, let me break one more myth  – that Indians were salvaged by progressive British culture. On the contrary, barring few honest attempts, the colonization was only a PR building exercise where in the name of codifying Hindu and Mohmeddan laws, the colonizers chose the convenient interpretations of Indian traditions, and multiplied the error by superimposition of British laws, like Hale’s doctrine which viewed crime against women and an offence of trespassing with same lens.

For example, the custom of Kanyadaan was interpreted as validation of husband’s propriety claim over his wife.

If we connect this further with that popular dialogue of movie Jab We Met – Akeli ladki Khuli Tijori – it will now make sense legally. A woman without a guardian/owner is like lost goods that anyone can misappropriate.

Because a wife is still considered ‘property of husband’

Having made this connection between wife and property, let’s move on to explore why the law is silent or is it actually silent?

When it comes to personal laws including family laws, the approach of the law makers and keepers is to avoid interference. Sometimes to a level that any ‘interference’ it is ridiculed as a western world concept and the impractical goals of women (especially married women) to attain the autonomy over their body. The approach of the court can be summarized in this justification the Court gave for the separation of family law and constitutional law by saying – ‘It is like getting a Bull to a china(ware) shop.’

The glaring example of this walking-on-the-edge approach is seen in the laws regarding child marriage. The laws do not declare this social evil a crime in absolute sense. Shockingly, except for few circumstances, child marriage is not illegal in India, only void or voidable.

The only customized change law has done is increasing the minimum age of girl when it is safe for her husband to have sexual relations with her without the perils of accusation of rape. So basically, law is telling you what is the minimum age when you have the privilege of exemption from marital rape. This indifference is reflected in skewed provision of IPC, section 376 that gives the punishment of rape of child wife between 12 to 15 years of age with the imprisonment of 2 years, while the same rape, if not committed by husband, gets imprisonment of 10 years.

No evidence, no crime? Here are some facts

But is Marital Rape actually a non-existent thing, where is the evidence?

Taking forward Hale’s argument that marital rape cannot possibly exist, let me now share some statistics from the government agencies. According the National Family Health Survey-4 conducted under the stewardship of Ministry of Health and Family Welfare, for the period 2015-16:

• 13 percent of ever-married women agree that it is justified if husband beats wife for refusing to have sex with him.
• About 9 % men believe that it is his right to use force when wife refuses sex.
• About 33% of married women, age group 15-49, have ever experienced spousal violence, physical or sexual or both by their current husband.
• Among the women who have experienced sexual violence, 83% report their current husband and 9% their former husband as perpetrators. Cuts, bruises, eye injuries, bone dislocation are the most common types of injuries that are reported in this violence.
• In case of spousal sexual violence, only 10% seek any help or report it. Among that only 3 % go for institutional help and 1 % for medical or social service organization.

Most disturbing is the fact that the above data is only tip of the iceberg as it covers only handful of respondents.

This raises two questions – When we have the Data of Marital Rape existing in India: Why the looking away? What are the steps taken to resolve it?

Now let me come to the final point – Why this denial?

The main argument against criminalization of rape is the issue that how to prove the consent and collect relevant evidences? This argument is weak on many grounds.

Firstly, are all rapes happening between strangers only?

Secondly, just because evidence collection is complicated, can we so conveniently ignore the basic tenets of justice which says, ‘where there is damage, there is remedy.’

Thirdly, it will be gross injustice to ignore the victims who have tell-tale signs of sexual assault.

To sum-up the shallowness of this argument in one of the implied observations of Hon’ble Supreme Court – Filing of false cases is a human error, it should not take away the cause and plight of genuine victims.

Men refusing to give up their privilege

Skipping the other arguments, let me come to the main reason behind this vehement denial.

For that let me take you again to the West, to the USA, which is considered by the majority as a heaven of liberated women.

A study conducted by Kirkwood and Cecil based on sample of undergraduates showed that marital rape is least likely to be considered a rape compared to stranger rape. While marital rape, even if violent in the beginning, is climaxed as a passionate scene where wife/partner ends up enjoying the act.

This may remind the readers of some of the ‘steaming’ scenes from Bollywood blockbusters. An extreme of the marital exemption is the ‘solution’ where a perpetrator is asked to marry the rape victim in order to escape the penalties. Further, sexual force within marriage is seen as husband’s way of ‘punishing’ his wife who is not fulfilling her marital obligation. And thus, behind all the excuses, it is the cultural conditioning that destroys the credibility of victim of marital rape.

The most disturbing corollary of exemption of marital rape is that it is reducing marriage to only sexual relationship. The principle of coverture has got diluted with time, the subsequent laws such as a daughter’s share into father’s property, a married daughter’s responsibility to maintain her parents, recognition of mother as natural guardian of children, women given legal nod to continue their marital name, all these laws have shaped the legal and separate identity of wife. And thus, the arguments that shield marital rape are no longer valid.

As a humble and ordinary citizen of India I post full faith in our wise lawmakers. I have full faith in their capability, which has risen to the occasion when the laws concerning rape evolved from mere physical act of ‘penetration’ to the mental act of ‘consent’ from Mathura rape case to Nirbhaya’s.

In this regard, Justice Verma’s recommendation of Bill of Rights for women which gives dignity and respect to women for their sexual autonomy is a better solution with far-reaching results. Also, the principle of absolute liability of the criminal in cases of rape, by treating rape as Rape, not a gender issue or privy purse of husbands.

What is important is to accept the reality that the Bull is already in Chinaware shop through Statues like Domestic Violence, and it is time to now acknowledge its presence for larger issues.

Image source: a still from short film Consent

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