The evolution of law is in progress and contradiction in implementing it is the conventional trend in the developing countries in the name of patriarchy and chauvinism. Numerous complaints of marital rape get subsided by the pattern of patriarchy in either home or society in maintaining the superego. Having faith only left in judiciary, the debate then goes on jellied only in formalism of convention and implementation of rule of law.
As the debate rages on, petitions are filed in courts in India and the Indian government refuses to criminalize marital rape, we look at implementation of marital rape law in 4 developing democracies- South Africa, Nepal, Pakistan and Brazil. Of these, Nepal and SA have a specific law criminalizing marital rape. In Pakistan and Brazil, there is no specific law targeted exclusively at marital rape, however, sexual offences are punishable in conjugal relations as well.
What we have found is that the law on marital rape has been the least effectively implemented law in comparison to other laws that seek gender justice in all these countries. These utterly shows that the sense of justice has not been inculcated in the society to the level of zone of acceptance of a sensitive problem like marital rape.
Unfortunately, the laws on marital rape in these 4 democracies have been largely unsuccessful in changing society’s perspectives and attitudes that put marriage at a divine pedestal- with the husband in-charge of their wives’ bodies.
India, as a nation, will have to inculcate it not only structurally by having a law but behaviorally by accepting it and providing a thorough process by not letting the culprit go out and make fun of law. For this reason we must study the conditions of different countries, mostly developing, where they either failed in implementation of their own enacted law and entangled their judgment in the shroud of their culture to protect male chauvinism, thereby undermining the rule of law, which is the biggest problem of any developing country, including India.
It is important to criminalize marital rape, but more importantly, what we need to learn from the case studies of these countries is that as marriage as an institution has it’s roots deep in the society, the glass ceiling of customary patriarchal traditions and practices has to be attacked.
Sub-Saharan African countries have taken several approaches to criminalize marital rape after the United Nations Convention on the Elimination of All Forms of Discrimination Against Women recognized it as a form of gender-based violence in 1980. India ratified the convention in 1993 but is yet to take any steps to make marital rape a crime.
South Africa criminalized marital rape way back in 1993 with the passing of Prevention of Family Violence Act. That was almost the same time when South Africa passed it’s interim Constitution. However, it took as long as 2 decades for the first conviction to happen under it’s marital rape law- it happened in 2012– after a 7-year-long trial.
In its Report “Women and Sexual Offences in South Africa”, the South African Law Commission had again way back in 1985 recommended that the rule that ‘a husband could not be convicted of the rape of his wife’ should be abolished. Women’s groups in South Africa have campaigned for the criminalization of marital rape on the platform that condoning marital rape seriously undermines efforts to combat the horrifying HIV-AIDS pandemic particularly affecting African women.
But unfortunately, the South African judiciary has been hardly of any help in dealing with the law.
In its 2012 report on marital rape in South Africa, the Open Society Initiative for Southern Africa , an organization committed to deepening democracy and protecting human rights, documents a 2007 case where a judge dismissed marital rape charges because the husband’s “desire to make love to his wife must have overwhelmed him, hence his somewhat violent behavior.” This clearly shows the mindset of the judges.
In another South African case in 2004, the complainant was abducted and raped by her husband, who thought it was his right as she had not reimbursed him the lobolo (bride price) he had paid for her. In his ruling, the judge said that the defendant’s actions “though totally unacceptable in law … were shaped and molded by the norms, beliefs and customary practices by which he lived his life.”
One of the prime examples linked to marital rape is this customary practice of bride price in many of the rural villages within South Africa, where customary laws take precedence over national law, resulting in discriminatory behavior. Also, social perceptions like marital rape being seen as forced sex done by a partner, while rape is only done by a stranger, automatically dissuade women from raising their voice.
Customary practices and other beliefs like a women has to obey her husband or rapes don’t happen in the four walls of the house- these are rampant in Indian society. Even though the National Crimes Records Bureau of India’s 2015 data shows that an estimated 95% of rape victims knew the offender and at least 2% were former husbands or partners, such practices and beliefs will be a big hindrance for India as well.
The Himalayan kingdom Nepal passed a law in 2006 that made marital rape a criminal offense. The impetus for change in marital rape of Nepal came from a petition filed in 2001 by a non-profit organisation Forum for Women, Law and Development (FWLD), which challenged the constitutionality of the definition of rape in the then law that gave unfettered immunity to a woman’s husband.
This petition led to the 2002 ruling by the Nepal Supreme Court that ended the conflict between the Muluki Ain civil code -which is based on Hindu religious principles and beliefs -and the 1990 constitution, which pledges to end all forms of gender discrimination in line with international rights conventions.
Most importantly, the Nepalese Supreme Court stressed on the fact that religious texts do not condone men who rape their wives. Instead, it said that Hinduism stresses conjugal harmony based on mutual understanding between the husband and wife.
It’s essential for the Indian government and judiciary to analyse this judgment of the Nepal Supreme Court that puts emphasis on the fact that religion and divinity of marriage cannot be used as a tool to justify marital rape. If an erstwhile Hindu kingdom, which is still a fledgling democracy, can at least recognize the crime of marital rape, then why can’t a multi-religious secular democracy like India?
This was a revolutionary judgment that finally led to the enactment of Nepal’s Gender Equality Law in November 2006, which included a penal provision for martial rape.
Though Nepal’s ‘Muluki Ain’ (National Code), under Chapter-XIV, provides that the errant husband, who forcibly sleeps with his wife, may be sent behind the bars, but the punishment of a period of three to six months is exceedingly low, making it a bailable offence. On the other hand, the prison sentence for rape is 3-5 years in the same code.
This makes marital rape seem like a petty offence, contrary to it’s heinous effects and is a hindrance in implementation. Therefore, women’s rights groups have filed writ petitions in the Supreme Court challenging the provision of punishment as insufficient in addressing women’s vulnerability. The petitioners have demanded for equal punishment of rape and marital rape. The Supreme Court is yet to decide those cases.
Women & Sexuality in Nepal: A study report by the Forum for Women, Law and Development states that in one marital rape case, though the court said that rape was a heinous crime much more serious than murder, it still continued to promote patriarchal values by taking the view that chastity of women as more severe than homicide. The law prioritizes chastity over the right to consent to sexual intercourse.
Women in Nepal still find it tough to raise their voice, even after the marital rape law came into existence. While on one hand reporting of cases of domestic violence in Nepal have certainly increased, ironically, on the other hand, social stigma attached to leaving one’s husband and cultural norms that promote loyalty to husband have prevented women from specifically filing marital rape cases. It seems that taboo associated with sexual violence in bedroom is much more than other forms of violence.
Many women have never heard of the term ‘marital rape’ or of the developed law against it as ‘sex’ is still a taboo in the once predominant Hindu kingdom. The Nepali Government amended the law against rape to include marital rape, almost eleven years ago, however not all cases are reported as illiteracy and deeply ingrained notions of respect and economic factors refrain the victims from taking a step against their husbands who sexually abuse them.
Religious taboos and fetishizing over chastity is a common social trait in India as well. We have to work on this simultaneously as we vouch for tightening the screws on the law.
Though there is no explicit law banning marital rape in our Western neighbor Pakistan, but Section 375 of the Pakistan Penal Code that defines rape doesn’t have an exception of ‘sexual intercourse by a man with his own wife’, unlike the Indian Penal Code. The law clearly says that the woman against whom the rape is committed can be any woman. The law has an implicit recognition but is on the mercy of legal interpretation.
Due to the lack of constructive definition of law in Pakistan and social and religious taboo associated with the topic, there has been no case of marital rape registered in Pakistan. Although there have been cases where the wife had lodged a criminal case against her husband for putting her to sodomy, the women had to face so deadly social pressure that they had to back out from it.
As is the case in many countries, the cultural and religious misinterpretation that women have to obey their husbands is the biggest hurdle. Gynecologists have also expressed their concerns over the growing number of married female patients who are forced into intercourse due to which they suffer with infections and fertility related problems.
Neha Gauhar, a teaching fellow at the Shaikh Ahmed Hasan School of Law at Lahore University of Management Sciences, says, “Cases on marital rape need to come to court to give the judiciary space to interpret the current law on rape and to get the debate on this issue started. Such cases would also spark a debate on consent which is always a contentious topic in rape cases. Relentless pressure that translates into forced consent is also seen as consent on the part of the wife. However, ‘an absence of ‘no’ does not mean ‘yes’”.
The importance given to women’s health issues, the issue of consent and religious conservatism in Indian society is on similar terms as it’s beloved neighbor has given them. These issues have to be simultaneously worked upon.
Although Brazil, which has been tagged as one of the most dangerous places in the world for women, does not explicitly outlaw marital rape, the provisions relating to all forms of sexual abuse theoretically apply to violations which occur within a conjugal relation, according to a report of the Human Rights Watch (HRW), an international non-profit human rights organization. In practice, Brazilian judges generally reject the notion of marital rape.
Marital rape, in particular, is severely under-reported and least likely to be prosecuted. While marital rape theoretically is included within the general prohibition against rape, in practice it is not commonly viewed by the courts as a crime. Under the Brazilian Civil Code, the refusal of sexual relations is cause for legal separation. According to several attorneys with whom Americas Watch (subsidiary of Human Rights Watch) spoke, when a husband uses violence to compel his wife to have sexual relations, it is viewed by the courts as enforcing the wife’s conjugal obligations, not as rape. As a result, rape in the home, with the exception of incest, is almost never punished.
A victim told Americas Watch that “Women who are forced to have sex with their husbands feel that it’s an obligation. She feels violated in her person, but she feels it’s her duty.”
A 2003 report to the Committee on Economic, Social and Cultural Rights found that in Brazil, after reporting marital rape to the police, 60% of the couples continue together. Nevertheless, it should be noted that 70% of the cases are dropped on the request of the woman who changes her views due to the promises of her husband towards a change in the relationship.
The notion of duty that a wife has towards her husband is considered divine in Indian society. That has to be particularly erased. The relationship between husband and wife has to be looked like a contract in a modern society. Also, countless cases emerge where a rape victim is forced to marry the perpetrator by the man himself or the family or even the courts themselves!
Law only small part of solution
The U.N. Special Rapporteur on violence against women is emphatic about the particular efficacy of penal sanctions in reduction of violence, but it also acknowledges the debate in the human rights community that an emphasis on education and health strategies may be more productive than legal sanctions.
The criminalization of marital rape should definitely be made a reality as refusing it due to the fear of its misuse isn’t a long term solution. It is of utmost importance that the law should be defined properly in all aspects and awareness related to the same should be spread not just in the society but amongst the legal community as well.
Marital rape is one of the most complex problems that we are grappling with, as it happens in the most intimate and trustworthy relationship between partners. The public education and awareness efforts have to focus on eliminating gender inequality in marriage- the idea that men are ‘head’ of the family or household and are entitled to wield authority over women.
If we aspire to be a developed nation, then we will have to become mature enough culturally, behaviorally, structurally and through our process of implementation of marital rape law to show that we really care for our half of the population-the pillars of our nation.