Comparative Study: Marital Rape in India and United States.
Marital rapes are largely unnoticed form of sexual violence. i.e. rape committed by the husband on the wife without consent. Marital rape is not about physical intercourse but about violence and cruelty with his wife, it is not about marriage, tradition or culture but about lack of consent and willingness. Rape is rape whether with married or with unmarried women and it should be illegal and penalised whenever, wherever and with whoever it occurs.
1. ABSTRACT
Marriage is a commencement of a new family, more than being a physical union it is an emotional union of the spouses. “The forceful and non-consensual sexual intercourse by a husband with his wife is known as marital rape or spousal rape”. It is not only about sex but sexual violence and cruelty and has led to very bad physical and psychological consequences on wives. Comparatively in US marital rape is an offence since 1993 but in India there is no legislation for the same. The concept of marital rape has been overlooked for years as mentioned in manusmriti 200 CE (Common era) and has become vulnerable after Mughal rule and this heinous crime still continues to be the exception. Whereas in many other countries like Australia, Nepal and United States marital rape is a criminal offence and it has been understood that sexual intercourse should be mutually desired by both parties of the married couple. Whereas in India there is no legislation. The JS Verma Committee was formed and recommended for criminalising marital rape in India but those recommendations got rejected. The bills introduced in parliament was also rejected. There are no laws to protect the victims of marital rape. The aim of the article is to review the social and legal aspects of marital rape. The two countries are compared because the condition of marital rape in both the countries is contrary. The issues are discussed and author has conducted survey in online mode to get opinion from public about marital rape. The survey was attempted by 95 people including men and women between the age group of 20 – 35. In the survey 96% people agreed to criminalise marital rape. There is need to criminalise marital rape and this issue deserves attention by law courts and the legislature in India.
2. INTRODUCTION
Marital rapes are largely unnoticed form of sexual violence. i.e. rape committed by the husband on the wife without consent. Marital rape is not about physical intercourse but about violence and cruelty with his wife, it is not about marriage, tradition or culture but about lack of consent and willingness. Rape is rape whether with married or with unmarried women and it should be illegal and penalised whenever, wherever and with whoever it occurs.
Being a Patriarchal society husband shows dominance over wife. Such issues in family are not discussed and kept secret behind closed doors because it is legal and there are no legislations for the same. According to statistics more than 52 countries criminalised marital rape and 36 countries across the world do not recognise marital rape as a crime. The first country to criminalise spousal rape in 1932 was Poland[1]. Since the 1980s, number of other common law countries such as South Africa, Ireland, Canada, United States, New Zealand, Israel and other have removed the immunity given to husbands of having non- consensual forced sex with his wife. In United States, in all 50 states marital rapes are illegal and punishment differs from state to state. The victims faces physically and psychologically like post-traumatic stress disorder (PTSD), depression, vaginal injuries and some victim even end up committing suicide. It is a gross violation of human right and infringement of Fundamental Right guaranteed under article 14[2] and article 21[3] of the constitution.
In Parliament the Bill to criminalise marital rape was introduced, it was turned down. According to some of the members of Parliament, marriage is a sacred institution and touching it will lead to breakdown of marriages and spoil the institution of marriage. They stated that India should be proud of low divorce rates without acknowledging the fact that most marriages in India survive because women silently endure violence and sacrifices her life. In India, where the family is the primary form of social organisation and culture is over consent. Does women lose the right to say no after getting married?
3. UNDERSTANDING THE CONCEPT OF MARITAL RAPE
There are several forms for crimes like domestic violence, rape, sexual abuse, eve-teasing, acid attack etc. are committed against a female. Of all these, rape is regarded as one of the most vulnerable kind of violence against a female across the world and remains a threat to the life of women in the society. Rape is not merely an issue affecting individual women but it’s affecting the whole society it is not only a social issue but also a political issue which manifestly shows the imbalance of power between two sexes.
The legal definition is limited to non-consensual and forced vaginal penetrations which is common in laws of many countries. Laws in many country exempts husband, who cannot be charged with the rape with his wife because according to them wives have given an implied consent during marriage. In India exception of marital rape are provide under sec 372.
Exception of Marital Rape - Sec. 375 of IPC provides two exceptions[4][5] when a sexual act without consent will not be considered as rape under the code.
4. CONCEPT OF CONSENT WITHIN THE MARITAL RELATIONSHIP
Underlying the principle of consent in the marital relationship is the idea of respect for woman as a person and as a partner. It involves freedom to say `yes’ or `no’ to a sexual encounter.
During 1600s Mathew Hale, Chief Justice in England, relied upon Implied consent - According to this principle of implied consent, the wife has given consent by getting married and such consent is termed as given by the wife at the time of marriage is considered as irrevocable consent to lifelong sexual intercourse.
New Jersey Supreme Court has overruled this principle of implied consent, in the matter of State v Smith stated that, “this implied consent rationale, besides being offensive to our valued ideals of personal liberty is not sound where the marriage itself is not irrevocable. If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage 'contract,' may she not also revoke a 'term' of that contract, namely, consent to intercourse? Just as a husband has no right to imprison his wife because of her marriage vow to him and he has no right to force sexual relations upon her against her will. If her refusals are a 'breach' of the marriage 'contract', his remedy is in a matrimonial court, not in violent or forceful self-help”. The courts in US and UK have held that the concept of implied consent is unreasonable as wife who recites marriage vows cannot consent to being raped by her husband or to violence against her will.
In India, being the “Patriarchal” or male “dominated” society the sacramental nature of marriage as a lifelong bond eliminates and overlooks the notion of consent and follows the principle of implied consent. A wife is treated as a property of husband.
5. MARRIAGE IS NOT A LICENSE TO RAPE HIS OWN WIFE.
Marriage straight away gives licence and right to rape. As mentioned above, the common unreasonable assumption that guides the society is that marriage is a license to rape and when a woman enters the bond of matrimony, she wilfully consented to be violated sexually for life. Non consensual sex within marriage has not been recognised in India and non-consensual sex are considered as consented. Laws and practices need to understand the fact that rape is a rape whenever, whoever and wherever it has occurred, whether it occurs within the bedroom or at the public place. The consent plays an important role whether she is married or unmarried and non-consensual sex is rape. In India we do not have rights for married women and her consent is not considered which is violation of her human right. We need separate laws to criminalise marital rape for protection of married women’s right because a relationship between a man and woman is not a license to rape.
6. CONCEPT OF MARITAL RAPE IN UNITED STATES
Rape as any non-consensual sexual intercourse between non-spouses has always been illegal. However, until 1975, every state had a “marital exemption” that allowed a husband to rape his wife without fear of legal consequences. By 1993, largely in response to the women’s rights and equality movement, every state and the District of Columbia had passed laws against marital rape.
In US, all states have recognised rape within marriage as a crime, and many states charge the criminal in the same way as rape of unmarried women would be charged. However, at least two states still have slight differences in the law for rape between spouses i.e. South Carolina and Virginia. In South Carolina, a prosecution for spousal battery (rape) may not proceed unless the offending spouse's conduct was reported to law enforcement within thirty days of the event. (S.C. Code Section 16-3-615.). Virginia provides for marital or personal counselling in lieu of court proceedings in some cases of marital rape.
Categories of marital rape in United States
Non-physical sexual coercion
It defines two basic types of non-physical sexual coercion that perpetrators of marital rape use: social or normative coercion and interpersonal coercion. Social coercion invokes the belief in “wifely duty.”.
Interpersonal coercion occurs when a husband uses his resources or power in the relationship to force his wife to comply with his sexual demands.
The other Violent form is threatened or forced rape like Battering rape, Force-only rape and Obsessive rape
7. HISTORICAL BACKGROUND OF MARITAL RAPE IN INDIA
India is Patriarchal male dominated state. Male plays a superior role in family and even at workplace. In India implied consent is considered during marriage based upon the mutual matrimonial contract. The exception of marital rape can be traced from ancient Sanskrit texts of Manusmriti which excepted the consent of women. The structure regarding marriage is “the license to have sex” in the text itself it was mentioned that wife is not being considered ideal if she denies having sex with her husband and there was no concept of consent and marital rape considered was legal. During Mughal era also the condition of women was vulnerable in society. Women were like a “sex slave” and they were gifted in victory. Their own wives were openly sold in exchange of wealth and kingdom. After Independence, the patriarchal mind set and concept of privacy still exist specially in matrimonial matter. Today condition is not improved. When husband and wife lives together the consent is presumed. Thus, the point was taken into consideration by legislative body and law commissions, in the 42nd Law Commission Report endorses the notion of spousal but it was restricted to judicial separation. The Ground of marital rape was rejected on the reason that there is implied consent of sexual intercourse and a husband cannot be punished for raping his own wife. They refused to criminalise husband for raping his wife.
8. JUDICIAL DECISION AND LEGISLATION ON MARITAL RAPE
There are no legislation for the crime of marital rape and it is not even considered as illegal in India. The present legal provisions are as under
Exception Clause 2 of Section 375 of Indian Penal Code, 1860: Exception 2 of the IPC, 1860 mentions that “sexual intercourse/sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape ”. Its an exception clause and it restricts right of married women.
Domestic Violence Act, 2005: Domestic Violence Act, 2005 deals with sexual violence a broader aspect. Domestic violence is also named as domestic abuse, battering, family violence or within a couple who may be legally married. It can be seen for both men and women and it includes different kinds of violence like physical violence, sexual violence, emotional violence, economic violence which may be a result of prevailing inequality in the society. In case of marital rape it will only consider sexual violence and not a rape and husband will be free to again conduct marital rape. This is the reason we require separate laws because under domestic violence act the crime of the marital rape will not be recognised because it is limited to domestic violence only.
Justice Verma Committee Report:[6] The Justice Verma Committee was constituted to recommend amendments to the Criminal so as to provide quicker trail and enhanced punishment for criminals accused of committing sexual assault against women. The Committee submitted its report on January 23, 2013. It was formed to change the rape laws and create deterrence. The Criminal law amendment act, 2015 was majorly an outcome of JS Verma Committee report. In its recommendation it was said that the view of marital is not different and the nature of rape cannot change with relationship status. For comparison within the jurisdictions which allowed criminalization of marital rapes like United States, Canada, Australia, South Africa etc. was taken into consideration. The meaning of consent was addressed where it was said it cannot be implied by the relationship status. Punishment and penalty was also addressed considering marital rape as less serious offence and a minimum punishment should be given. These recommendations in the light of marital rape in a more elaborate and suitable manner was one of the major contributions where sexual relations were distinguished with sexual activity and sexual violence. This extreme form of sexual violence towards wife however is still unenacted part of this report.
Independent Thought v. Union of India: in this landmark judgment marital rape of a minor was punishable offence but it was also held that in India we still do not recognise criminalization marital rape or marital rape between adult married partners. It was held that a wife can initiate the proceedings against her husband under Section 377 for unnatural sex but would be limited to sodomy, buggery and bestiality. Recognition coupled with punishment may deter the husbands from committing such acts.
State v. Vikash (2014) :The issue of marital rape was discussed in detail but ultimately, the court held that in India it is not the time to criminalise marital rape as 498-A is a sufficient ground to deal with its allied issues. A new legislation or separate laws are not required neither the removal of exemption clause.
Amendment Bill 2015 & Criminal Law Amendment Bill 2014 : The bill were presented in both the houses, but it was raised that Indian society does not require laws on marital rape and such laws shall not be passed to protect the sanctity of marriage and various times bills were rejected with unreasonable reasons, thus it was only presented but not enacted as a law in Parliament.
9. LEGAL HISTORY OF MARITAL RAPE IN UNITED STATES
Women’s' Movement of the 1970s, as feminists advocated for changes to the legal system. Laura X was a particularly influential woman in this regard. She took part as an advisor in the John Rideout case of 1978 which was the first time in the United States a man was prosecuted for raping his current wife. Even though the Rideout case was unsuccessful in making marital rape illegal in Oregon, Laura X was able to lead a campaign in California that criminalized marital rape the next year (X, 1999). The Commonwealth v. James K. Chretien case resulted in the first marital rape conviction in the United States on 2nd December 1979.
During the 1990s many states differentiated between three categories of victims:
- Unmarried women had full protection by sexual offences laws.
- Married persons who were in an abnormal marriage like in case filed for divorce were grave form of violence was and punishment was provided.
- Married persons cohabiting and in that case many state laws were initially very restrictive and had crime less severely.
In 2003, twenty-four states and the District of Columbia have abolished marital immunity for sexual offences and twenty-six states retain marital immunity in one form or another.
In South Carolina the Violence by husband must be of higher level and similar law existed in Tennessee until 2005, when it was repealed. The law stated that a person could be guilty of the rape of a spouse at a time they are living together and husband has caused serious bodily injury to the wife. The law was finally repealed in 2005, allowing for marital rape to be treated like any other type of rape.
In Minnesota until July 2019, sexual violence occurring between spouses at the time they cohabit or between unmarried partners could be prosecuted only if there was force or threat, due to Voluntary relationships'. Certain sexual offences do not apply to spouses unless they were separated. There was exclusion when the victim was mentally incapacitated, lunatic or physically helpless and this exemption was removed in 2019. Presently in USA marital rape are heinous form of crime like other form of rape and different states have different laws and procedures. The survey estimated that annually, 1.5 million women were raped and/or physically assaulted by an intimate partner. Past three decades have seen a substantial change in marital rape laws in the United States, beginning from the time when marital rape was legal in all 50 states, wherein efforts were made to recognise marital rape as a crime and in 5 July, 1993 all states had a law in their sexual offence codes criminalizing marital rape. In only 17 states marital rape was treated as non-marital rape. In other states there was less severe punishments. While marital rape laws have changed substantially, it is important to remember that these laws differ from state to state in their definitions, sentencing, and practices. Comparatively in US, we can see rapid legal advancements have occurred in the past three decades
10. NEED FOR CRIMINALIZATION OF MARITAL RAPE
In India we need separate laws to criminalise marital rape. The bill was introduced in parliament but never got enacted and at various occasion it was debated in parliament that a separate law will spoil the culture of India because we believes in binding family together. In past also we had Sati Pratha and Child Marriage as a part of our tradition and Indian culture but being a heinous crime, it was abolished. In the same way marital rapes are unrecognised crimes which affects psychology and health of married women so, we needs laws to protect the right of married women.
11. SURVEY OF MARITAL RAPE
The author wanted to know, what people thinks about marital do they consider it a crime or just a wifey duty so, the author conducted an online survey to get option from public about marital rape.
11. What is more important tradition or human right?
- 92 People think that Human right are more important and 3 people think that human rights and tradition are equally important.
Summary of Survey
- The survey was conducted online by circulating google form and was active was duration of 24 hours. Eleven questions were asked in yes and no form and the survey was attempted by 60 female and 35 male between the age group of 19 – 35 out of which 95.5 % are unmarried and 8.5 % are married. As we can see above, 97.8 % people accepted that we need to criminalise marital rape and 92.6 % people think that we require separate laws for the same. 53.2 % people think that women empowerment, promoting legal laws on marital rape and promoting feminism will together work as proper solution against crime of marital rape. 83.3 % people think that filing FIR in police station is not an easy process because they do not consider marital rape a crime.
- The author has taken survey and interview of the victim of marital rape on telephonic call. The women resides in the remote area of Maharashtra. She was married in 2011 at the age of 20 and on the day of marriage she was forcible raped for 7 times by her husband who was 30 years old. Next morning, she was bleeding and not even in a condition to walk but her husband didn’t cared. Her husband never respected and loved her. Despite of saying no he force able raped her more than 2 - 3 times in a day and for instilling fear in her mind he had hit her with hard objects. Once in anger he broke her arm bone by hitting with iron rod. Her in-laws knew about the same but no one helped her. The husband used to force her several times and due to social pressure from family she kept quiet and continued the unhappy marriage for 8 years. After 8 years of marriage she took divorce from and him. See how difficult her life was and she sacrificed her life and took all pain just to bind the family and for the husband who never loved her.
12. RECOMMENDATION
According to Constitutional law, every person is guaranteed fundamental rights and it forms the basic structure of the Constitution. Wherein in case of Marital rape it is a clear violation of fundamental right guaranteed under Article 14 and Article 21 of the constitution, because it discriminate between the right of married and unmarried women. If a unmarried women is raped she can file a case under sec 375 for rape and get justice from court whereas marital rape are not even recognised in India so if a married women is raped and abused by the husband she cannot even go and file a case of marital rape. we can derive the conclusion that marital rape is unconstitutional where it can be said that it is necessary that the rape of married women be recognised.
The author thinks that, waiting for the parliament will not be enough the judiciary itself should criminalise this heinous offence. As we know Sec 377 was decriminalise by the courts and not by the parliament in the same way we hope from the judiciary to get marital rape criminalise in India. As seen above, in the second survey of telephonic conversation with the victim, what happened to her is violation of her human right and as well as fundamental right. Several times the questions comes into mind that Why always women have to sacrifice and fight for every single right? May it be saving girl child, education, employment and for divorce. Women fought against crime of rape, acid attack and now marital rape which is not even recognised as a crime in India. The marital rape must be criminalised because Rape is a Rape whether it’s of unmarried or married women. Every individual have right to “Say No” just by the fact of getting marriage the women doesn’t lose the “Right to Consent”.
13. CONCLUSION
The Article is Comparative study of martial rape In India and United States. Author has compared these two countries because the condition of marital rape in both the countries is contrary to each other. In India, the marital rape are legal and there are no legislation for the same. Whereas in USA marital rape is illegal and criminalised since 1993. The fight against marital rape was started by feminist group in US. The Commonwealth v. James K. Chretien case resulted in the first marital rape conviction in the United States on 2nd December 1979. Laws differ in all 50 state in their definitions, sentencing, and practices and now rapes of unmarried and married are treated in same way. Whereas in India, the parliament introduced the bill but it was never got enacted. The members stated that such laws shall not be passed to protect the sanctity of marriage and various times bills were rejected with unreasonable reasons. The government is itself not supporting and the only hopes lies with judiciary. The JS Verma Committee in its report recommended to criminalise marital rape but still that part in not enacted. In the name of protecting tradition and culture the marital rape are not being criminalised. In the name of tradition we had Sati Pratha and Child Marriage which were abolished. In the same way marital rape should be criminalised because consent is more important than culture and human right is more important than following tradition. In the name of tradition and culture husband takes advantage of their wives and abuses her. In the survey conducted by the author it was seen that 98% consider marital rape as a crime in India but we have no legislation. The object of conducting the survey was to get public opinion about the issue and it was clear that people want marital rape to be criminalise.
Indian society and legislature need to understand that marital rapes are worst form of rape because there are no laws for marital rape. In India it is wifey duty to get herself in pain for the pleasure of husband. The consequences has seen worst like women have suffered physical trauma includes vaginal injuries and health issues STDs, miscarriages, HIV etc. In case of domestic violence women have suffered knife wounds, broken bone and swellings. There are also psychological consequences like shock, extreme fear, depression and some women have ended up committing suicide. After knowing about such consequences also people think it is a wifey duty and women still continues to take pain because of societal pressure and to keep the family together but what about her life? Is she born to sacrifice? Such question are never ending and the pain of victims of marital can’t be even imagined. We need martial rape to be criminalised and as we fought against domestic violence, rape, acid attacks in the same way this fight will continue against crime of marital rape.
‘Marital Rape’ is not about sex, but about violence; it is not about marriage, but about lack of consent. Rape is rape and it should be penalised whenever and wherever it occurs.[7]
14. BIBLIOGRAPHY
- Justice Verma Committee Report, 2013 available at www.manupatra.com.
- Shashi Tharoor, The Citizen about the private member's bill ‘The Women's Sexual, Reproductive and Menstrual Rights Bill, 2018’ introduced in the parliament -https://www.thecitizen.in/index.php/en/NewsDetail/index/7/15986/Marital Rape -Is-Not-About-Marriage-But-About-Lack-Of-Consent-Shashi-Tharoor.
- Shalu Nigam - The Social and Legal Paradox Relating to Marital Rape in India: Addressing Structural Inequalities.
- S. Devika and T. Mohan – Marital Rape and criminal law: Patriarchal Phantoms and “Neutral” Facades.
- Michael John Tario - Shocking Marital Rape Statistics
[1] The Indian Express (September 7, 2019). https://indianexpress.com/article/explained/marital-rape-a-crime-in many-countries-an-exception-in-many-more-4821403/
[2] (It differentiates rape of married and unmarried women).
[3] Article 21 includes right to live with human dignity, right to health and right to sexual privacy.
[4] 1.exception provides that a medical procedure or intervention will not come under this section.
[5]2.exception states that,” Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. This exception has become a wrangling issue as it provides that a husband will not be held liable for raping his lawfully wedded wife. After 2013, by criminal law amendment, age under this exception was increased from twelve to fifteen.
[6] Justice Verma Committee Report, 2013 available at www.manupatra.com.
[7] Shashi Tharoor, The Citizen about the private member's bill ‘The Women's Sexual, Reproductive and Menstrual Rights Bill, 2018’ introduced in theparliament. https://www.thecitizen.in/index.php/en/NewsDetail/index/7/15986/Marital Rape -Is-Not-About-Marriage-But-About-Lack-Of-Consent-Shashi-Tharoor.
B.L.S. LL.B