March 06, 2013

The non-criminalisation of marital rape

(Editor's Note: As we get news on the GoI agreeing in retrospect to reduce the age of consent from 18 to 16 in the Criminal Law Amendment Bill, it maintains its stand on rejecting the Verma Committee's recommendation to include marital rape (read more). In this regard, Anwesha Bhattarchjee's piece below raises pertinent questions and systematically argues against GoI's excuse in citing practical problems in inclusion of marital rape as an offence. - Aditi Malhotra)

ABhattacharjee The Parliamentary panel’s decision on March 1, 2013, to back the government on the non-recognition of marital rape as a criminal offense is baseless and absurd, and the reasons for such a move still remain unclear. “The Standing Committee on Home, in its report on the Criminal Law (Amendment) Bill, 2012, agreed with the view of the home ministry that criminalizing marital rape would weaken traditional family values in India, and that marriage presumes consent,” the PTI report stated. “… It has practical difficulties. If litigations are allowed, then the family system will be disturbed,” committee chairman Venkaiah Naidu of BJP said in response to questions.” The panel cited “practical problems” as the reason for the exemption, as opposed to the Verma Committee’s recommendation to remove the exception on marital rape from the Indian Penal Code, according to a PTI report. In 100 countries across the world, marital rape is a criminal offense and is punishable by law. In India, however, marital rape is counted as offense only when the couple is separated. The reasons cited by the panel support a view that was popular in the western world in the 1970s, a thought process that originated in the seventeenth century. “This thinking mirrored the common law presumption, in effect for hundreds of years, that spouses should be exempt from prosecution,” according to the Rape, Abuse & Incest National Network, or RAINN, a national organisation against sexual violence in the United States. By 1993, these views had changed and spousal rape was illegal in all the 50 states of the country. Despite these changes, spousal rape is one of the most under-reported crimes today and the trauma for victims is no less than that of being raped by a stranger. In India, the situation of under-reporting is much worse and an estimated 94 percent of sexual violence cases go unreported every year in the country. Where brutal and public gang-rapes are under-reported and badly handled, to not recognize any form of rape is to condone it. The creation of the Verma Committee to recommend changes in the country's legal system with regard to rape is a futile attempt at public appeasement if the government refuses to act and accept these recommendations. Each recommendation should have been at least debated upon by the entire parliament, if not by the Indian public. Instead, to knock down a recommendation stating it is a tradition and a consent given at the time of marriage is ludicrous, simply because this is still a country where forced and arranged marriages are a reality. We are not a nation where free sex is accepted socially. We are not a nation where every woman, from every strata of society is free to choose her husband. If a woman is forced into an arranged marriage, where she hardly knows the man she’s marrying, her one safeguard against domestic abuse of any form should be the law. As it is, a large number of Indian women are ashamed, embarrassed and socially unsupported when they are abused at home. Women from educated families have a hard time convincing their friends and family of the domestic abuse they face at home. The law should be encouraging of more reporting and a law that acquits a rapist before trial is more likely to deter reporting at all. Marriage is not consent to sex at any and all times. Marital sex is not rape only when it is sexual intercourse with mutual consent. And no marriage license overrides the right to sex with mutual consent. Another reason cited by the panel was the impracticality of proving marital rape. In other nations where marital rape is illegal and punishable by law, the way to prove rape is usually associated by a likelihood of the spouse being abusive. A man who has a past of hitting his wife, or being an alcoholic or a repeated offender will be more likely to rape his wife. Another form of evidence is if a woman decides to get a rape examination done right after she is raped by her spouse. Instead of drawing awareness to reporting crime and ways to do it, instead of increasing literacy on sexual abuse, we as a nation are encouraging a man’s sense of entitlement and sweeping marital rape under the rug. Our lawmakers are either not looking at socio-psychological issues, the complex web of our social structure before making these decisions, or they are still living in the Dark Ages. At any rate, this move is two steps backwards from where we thought we had started after the December 16, 2012, gang rape.

About: Anwesha Bhattacharjee

Anwesha Bhattacharjee is a journalist and manager in the making. After completing her B.Tech in Computer Science Engineering from New Delhi, she is currently a Management Science doctoral candidate at the University of Texas, Dallas. She is the features editor at UTD’s campus newspaper, The Mercury. Her support for feminism stems from personal experiences and observation of people and society around her. She views feminism as a tool to empower women. Her perspective of feminism transcends national boundaries, so that she views women worldwide on the same platform, yet facing different forms of oppression.

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