Marital Rape - Legal Perspective, Cultural Attitude & Stigma
Author: LawSphereX
Category: Criminal Law
Published:
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MARITAL RAPE: LEGAL PERSPECTIVE, CULTURAL
ATTITUDE & STIGMA
Nithyakalyani. S, B.A., LL.B. (Hons), School of Law, Dhanalakshmi Srinivasan University, Trichy.
ABSTRACT
The word ‘marriage’ becomes a scary term in the modern world. There are so many conflicts in the marital relationship. The word ‘rape’ defines as the sexual intercourse without the consent other person, it majorly happens to women by men. There is a major question that arises whether there is a need for consent of a wife needs to have sexual intercourse with the husband. The concept of marriage varies from country to country, society to society. In most of the countries women are the property. At the birth of a female child she is considered as the property of a father and after the marriage she is considered as a property of her husband.
Here marriage itself seems like a contract,and women is considered as the property, if any damages happen to his property, he claims compensation for the damages, and after marriage husband has all rights of his wife, literally she is treated like a servant. There are two different points of view in this marital rape, in a legal aspects some justice and legal professional told a statement that marital rape is not considered as illegal and other legal professionals and justice said that marital rape is a illegal, There is no rights to have a sexual intercourse without the consent of other person in the name of marriage, in most of the countries marital rape is illegal and severe punishment for person who attaining marital rape, but till now in India marital rape is legal with some exceptions’, this seems like a major back log for our country, and the laws also seems like too old concept.
Keywords: Marital rape, legal perspective of marital rape, marital rape in India, criminalization, sexual assault.
INTRODUCTION:
Rape is a word derived from the Latin word ‘rapere’ which means “to snatch, to grab, to carry off”. Sexual assault, physical violence, sexual intercourse without the consent of a person is also a form of rape. There are different types of rape data rape, gang rape, marital rape, rape of children, shamanic rape, statutory rape, prison rape, serial rape, payback rape, war rape, rape by deception, corrective rape, custodial rape. Rape is one of the most dangerous activity in the society that should be eradicated.
In this article we are going to discuss about the marital rape whether it is legal or illegal, what are the physical and mental health issues faced by women by men in the name of marriage without their consent in sexual intercourse, and we going to interpret the legal aspects of Marital rape and find out whether sexual intercourse after marriage without the consent of other partner is considered as rape or not and what are the practical solution for Stop marital rape. Author has tried to discuss about the legal perspective, cultural attitude and stigma of the marital rape and what are the preventive measures can take to stop marital rape with some landmark case laws.
1. MARITAL RAPE:
Marital rape falls under the broader definition of rape. Also referred to as spousal rape, it occurs when a husband engages in sexual intercourse with his wife without her consent, despite their marital status. Marital rape is defined as any unwanted sexual activity forced upon a person by their spouse or partner. It can take many forms, including vaginal, anal, or oral penetration, as well as other forms of sexual coercion.1 In India approximately 30% of married women have experienced physical or sexual violence from their husbands.2 Marital rape is a crime, even if the couple is still living together.3
1.1. DIFFERENT FORMS OF MARITAL RAPE:
1. Forceful sexual intercourse: Using physical force or violence to compel a partner to engage
in sexual activity.
2. Coercive sexual intercourse: Using emotional manipulation, threats, or intimidation to
1 World Health Organization; 2013, 51 p.
2 IIPS, MoHFW, Govt. of India. National Family Health Survey (NFHS-5), 2019-21. Mumbai: IIPS; 2021
3 People v. Liberta, 474 N.E.2d 567 (N.Y. 1984).
compel a partner to engage in sexual activity.
3. Sexual activity without consent: Engaging in sexual activity with a partner who is unable to
give consent due to illness, disability, or intoxication4
1.2. HISTORICAL AND GLOBAL PRESPECTIVES OF MARITAL RAPE:
Historically, marital rape was not considered a crime. In ancient Greece and Rome, the concept of marital rape did not exist. During the Middle Ages, marital rape was viewed as a wife's duty. It wasn't until the 18th century that marital rape began to be recognized as a crime. Marital rape laws vary significantly around the world. In the United States, laws differ by state, with some states specifically criminalizing marital rape, while others do not. A New Jersey court has recognized marital rape as a form of domestic violence. In contrast, some African countries do not consider marital rape a crime, with some laws explicitly exempting it from prosecution. In Europe, many countries have explicitly criminalized marital rape. The European Union has also recognized marital rape as a form of gender-based violence.
Importantly, marital rape can occur even if the couple is still living together, and a husband can be convicted of raping his wife.
MARITAL RAPE IN INTERSECTIONABILITY AND VULNERABLE POPULATION:
Marital rape disproportionately affects women from racial and ethnic minority groups due to societal and cultural factors. Additionally, marital rape can occur in same-sex relationships, with LGBTQ+ individuals facing unique challenges in seeking help and support. Certain groups are more vulnerable to marital rape: - Women with disabilities, due to power imbalances and limited access to support services. - Immigrant and refugee women, who face language barriers, cultural differences, and 4 Nat’l Coal. Against Domestic Violence,2020,https://www.ojp.gov/ncjrs/virtual-library/abstracts/nationalcoalition-against-domestic-violence,[Last visited Dec. 7,2024].
fear of deportation. - Women in rural areas or with low incomes, who have limited access to support services and healthcare. - Elderly women, who may experience power imbalances, social isolation, and limited access to support services.
1.3. DOCTRINE OF COVERTURE:
The doctrine of coverture, originating in medieval England, was based on the notion that a woman's husband held authority over her. Over time, this doctrine evolved to imply that a married woman's body was her husband's property, thereby justifying marital rape as a supposed right of the husband. This doctrine stripped women of autonomy over their own bodies, making resistance or reporting of marital rape extremely challenging. In the 19th and 20th centuries, numerous countries repealed their coverture laws, acknowledging women's rights to autonomy and equality. Many countries have also reformed their marital rape laws, recognizing it as a serious crime with severe consequences for survivors.
1.4. EDUCATION AND AWARENESS FOR MARITAL RAPE :
The United Nations has taken significant steps to address violence against women, including marital rape. The UN has recognized marital rape as a serious human rights issue and has called for its elimination. Key initiatives include the Declaration on the Elimination of Violence against Women and the Beijing Declaration and Platform for Action. These frameworks define violence against women, outline steps for prevention and punishment, and call for integrated measures to address the issue. UN Women has launched campaigns and programs to raise awareness about violence against women, including marital rape. The World Health Organization (WHO) has also published reports and guidelines on intimate partner violence, including marital rape.
GLOBAL CAMPAIGNS:
16 Days of Activism Against Gender-Based Violence: This global campaign, led by the UN,
includes marital rape as a key issue.5 One Billion Rising: This global campaign, launched by Eve Ensler, aims to raise awareness about violence against women, including marital rape.6 White Ribbon Campaign: This global campaign, founded by men, aims to raise awareness about violence against women, including marital rape.7
2. MARITAL RAPE IN INDIA:
Marital rape is frequently viewed as a private issue, leading to social stigma and pressure on women to remain silent. In India, many women are unaware of their rights and the laws protecting them from domestic violence and marital rape. Survivors of marital rape often face obstacles in seeking justice, including limited access to police stations, courts, and legal aid. Marital rape is defined as forced sexual intercourse with one's wife without her consent or against her will. Sexual intercourse with a minor wife (below 18 years) is rape.8 Marital rape is a valid ground for divorce.9 3. Supreme Court of India recognized marital rape as a form of cruelty.10
2 .1 CULTURAL AND SOCIAL ASPECTS OF MARITAL RAPE IN INDIA :
India's societal structure is largely patriarchal, where men hold significant power and control over women.11 Marital rape in India is a complex issue fueled by various societal and cultural factors. The caste system and dowry demands can make women from lower castes and those with limited financial resources more vulnerable to abuse. 5 UN Women, 16 Days of Activism Against Gender-Based Violence,[ https://www.unwomen.org/en/getinvolved/16-days-of-activism ] [last visited Dec 8,2024].
6 One Billion Rising, About,[ https://www.onebillionrising.org/ ][last visited Dec 10,2024].
7 White Ribbon, About Us, [ https://eige.europa.eu/sites/default/files/documents/mh0216314enn.pdf ] [last visited Dec 12,2024].
8 State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
9 India. Independent Thought v. Union of India, (2017) 10 SCC 800.
10 R.T.I. Foundation v. Union of India, (2019) 9 SCC 619.
11 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217.
Additionally, societal stigma and family pressure can prevent women from reporting marital rape or seeking help. Many women are also unaware of their rights, including the right to refuse sexual intercourse. Certain religious and traditional beliefs can perpetuate the notion that a wife must obey her husband, including in matters of sexual relations. These beliefs, combined with societal expectations of subservience, can contribute to marital rape. The consequences of marital rape can be severe, leading to physical and emotional trauma, social isolation, and ostracism. Furthermore, survivors often face significant barriers when seeking justice, including limited access to law enforcement, courts, and legal aid.
2.2 LEGAL PRESPECTIVE OF MARITAL RAPE IN INDIA :
Defines rape, but exempts marital rape, stating that "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."12 Does not explicitly criminalize marital rape, it recognizes it as a form of domestic violence.13 Sexual intercourse with one's wife against her will or without her consent constitutes marital rape.14 A husband's forced sexual intercourse with his wife can be considered an offense under Section 498A (cruelty by husband or his relatives) of the IPC.15
1. Indian Penal Code, 1860 (IPC)
Section 375: Definition of Rape (exempts marital rape) - Section 376: Punishment for Rape - Section 498A: Husband or relative of husband of a woman subjecting her to cruelty16
2. Protection of Women from Domestic Violence Act, 2005 (PWDVA)
Section 3: Definition of Domestic Violence (includes marital rape)
12 India. Indian Penal Code, No. 45 of 1860 (1860).
13 India. Protection of Women from Domestic Violence Act, No. 43 of 2005 (2005).
14 State of Karnataka v. Krishnappa, (2000) 4 S.C.C. 75.
15 Gautam v. Chakraborty, (1996) 1 S.C.C. 490.
16 India. Indian Penal Code § 375, § 376, § 498A (1860).
Section 4: Rights of Women - Section 12: Protection Orders17
3. Criminal Law (Amendment) Act, 2013
Amended Section 375 of the IPC to include a broader definition of rape - Amended Section 376 of the IPC to increase punishment for rape18
4. The Hindu Marriage Act, 1955
Section 13: Divorce on grounds of cruelty (includes marital rape)19
5. The Muslim Women (Protection of Rights on Marriage) Act, 2019
Section 3: Prohibition of triple talaq (includes provision for marital rape)20
LANDMARK CASES OF INDIA:
In the case of Independent Thought v. Union of India, it was stated that the out-dated notion that a wife is no more than a subservient chattel of her husband has since been given up in the United Kingdom. Reference was also made to a decision of the European Commission of Human Rights which endorsed the conclusion that “a rapist remains a rapist regardless his relationship with the victim”.21 In the case of Nimeshbhai Bharatbhai Desai v. State discussed about battering rape that. In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways. Some instances are those where the wife is battered during the sexual violence, or the rape may follow a physical violent episode where the husband wants to make up and coerces his wife to have sex against her will. In most cases, the victims fall under this
17 India. Protection of Women from Domestic Violence Act § 3, § 4, § 12 (2005).
18 India. Criminal Law (Amendment) Act § 375, § 376 (2013).
19 India. Hindu Marriage Act § 13 (1955).
20 India. Muslim Women (Protection of Rights on Marriage) Act § 3 (2019).
21 Independent Thought v. Union of India, (2017) 10 SCC 800.
stated category.22
3. PSYCHOLOGICAL AND HEALTH IMPACTS:
Psychological Impacts:
1. Post-Traumatic Stress Disorder (PTSD): Survivors may experience flashbacks,
nightmares, and anxiety.23
2. Depression: Marital rape can lead to feelings of hopelessness, sadness, and loss of
interest in activities.24
3. Anxiety: Survivors may experience fear, anxiety, and hyper vigilance.25
4. Low Self-Esteem: Marital rape can lead to feelings of shame, guilt, and worthlessness.26
5. Dissociation: Survivors may disconnect from their thoughts, feelings, or bodily
sensations.27 Health Impacts:
1. Physical Injuries: Marital rape can result in physical injuries, such as bruises, cuts, and
broken bones.28
2. Sexually Transmitted Infections (STIs): Survivors may be at risk of contracting STIs,
including HIV.29
22 Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2018) 10 SCC 743.
23 American Psychological Association,2017
[https://www.apa.org/topics/ptsd#:~:text=People%20with%20PTSD%20may%20relive,sleep%2C%20difficulty %20in%20concentrating%20or ][last visited Dec 13,2024]. 24 World Health Organization,2013 [https://pmc.ncbi.nlm.nih.gov/articles/PMC9162402/][last visited Dec 12, 2024].
25 National coalition Against Domestic Violence,[,][last visited Dec 11,2024].
26 Journal of interpersonal violence,2018[ https://journals.sagepub.com/home/jiv ][last visited Dec 7,2024]. 27 Journal of Trauma and Dissociation, 2017 [ https://pmc.ncbi.nlm.nih.gov/articles/PMC9162402/ ] [last visited Dec 11, 2024]. World Health Organization, Violence Against Women, [https://www.who.int/news-room/factsheets/detail/violence-against-women ][last visited Dec 10, 2024] 29Centers For Disease Control and Prevention,[ https://www.cdc.gov/sti/index.html][last visited Dec 12, 2024].
3. Unwanted Pregnancies: Marital rape can lead to unwanted pregnancies, which can have
emotional and physical consequences.30
4. Chronic Pain: Survivors may experience chronic pain, including pelvic pain,
headaches, and muscle tension.31
5. Sleep Disturbances: Marital rape can disrupt sleep patterns, leading to insomnia,
nightmares, and fatigue.32
4. PREVENTION AND INTERVENTION STRATEGIES:
1. Education and Awareness: Educate people about the concept of marital rape, its
consequences, and the importance of consent in sexual relationships.33
2. Promoting Healthy Relationships: Encourage healthy communication, mutual respect,
and trust in relationships.34
3. Challenging Patriarchal Norms: Address and challenge societal norms that perpetuate
patriarchal attitudes and condone violence against women.35
CONCLUSION:
Marital rape is a pervasive and insidious issue in India, with an estimated 1 in 5 women experiencing sexual violence from their husbands. The Indian Penal Code's exemption of marital rape from the definition of rape perpetuates impunity for perpetrators and denies justice to survivors. Marital rape has severe psychological and health impacts, including PTSD, depression, anxiety, and physical injuries. To combat this issue, it is essential to criminalize Guttmacher Institute, Abortion Worldwide; uneven progress and unequal access, 2017, [https://www. guttmacher. org/report/abortion-worldwide-2017][last visited Dec 11, 2024]. National Library of Medicine, Psychology of Chronic Pelvic Pain, [https://pmc. ncbi. nlm. nih. gov/articles/PMC6340718/],[last visited Dec 10, 2024]. 32 Journal of women’s health,2019[https://pmc. ncbi. nlm. nih.
gov/articles/PMC3236986/][last visited Dec 12, 2024] 33 World Health Organization, 2013[https://www. who. int/publications/i/item/9789241564588][last visited Dec 10, 2024]. 34 Nat'l Coal. Against Domestic Violence, [ https://www. ojp. gov/ncjrs/virtual-library/abstracts/national-coalitionagainst-domestic-violence] [last visited Dec. 14, 2024]. United Nations, [Sustainable Development Goals] (2015), [https://www. un. org/sustainabledevelopment/blog/2015/11/un-urges-concerted-action-to-create-a-world-wherewomen-and-girls-live-free-from-violence/] [last visited Dec. 13, 2024].
marital rape, strengthen laws and policies protecting women's rights, increase access to justice for survivors, and promote education and awareness about marital rape. Addressing marital rape requires a multifaceted approach that involves individuals, communities, and societal institutions working together to create a safer, more equitable society for all.