Law Opinion
Time to recognise marital rape as rape
With the recent surge in incidents of rape in the Indian subcontinent, everyone is arguing for introducing stricter punishments than the current maximum of life imprisonment (S.376 Penal Code 1860). It is therefore an appropriate time to address the issue of marital rape in Bangladesh, because it is my personal belief that if violence against women is to be eradicated, then there should be zero tolerance towards rape and other sexual and violent offences, no matter who stands accused.
According to R K Bergen (1999) marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent. The legal immunity for husbands can be traced back to the 17th century views of Hale CJ:
“[t]he husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto the husband which she cannot retract” [History of the Pleas of the Crown (1736)]. This judicial opinion formed the basis for the notion that once married, a woman does not have the right to refuse sex to her husband. Given Britain's imperial past, this common law presumption seeped its way into other legal systems too with time.
Researchers estimate that between 10% and 14% of all married women experience rape in marriage [D. Finkelhor & K Yllo (1985)]. Since in Bangladesh, these topics are very much taboo, there hasn't been any comprehensive research on the severity of the problem. However, given the prevalence of domestic violence (2291 incidents 2001-2004) and rape generally (5196 incidents 2001-2004) in Bangladesh, the number of unreported marital rape cases will be substantial to say the least (S Farouk, 2005). However, given our socio-cultural similarities, we can look at India as a guide. In India, 2/3rds of all married women claim to have been victims of marital rape (UNFPA, 2000), while one in every five men admitted to raping their wives (ICRW, 2011)!
According to research by RAINN, marital rape often results in more damage to victims than rape by strangers, such as: a) Longer recovery from trauma; b) Higher likelihood of repeated assaults; c) The perpetrator is more likely to use “anal and oral rape to humiliate, punish and take 'full' ownership of their partners”; d) Pressure to stay with perpetrator; e) Negative effects on children in the household; f) Difficulty in identifying what happened as a crime, given the victim's relations of love and care with the accused.
According to S A Adamo (1989), most martial rapes, contrary to common myth, don't occur as a result of wives withholding sex. Survivors' accounts reveal that husbands rape mostly to reinforce their power or control over their wives or families, or to vent anger or aggression. Stereotypes such as "women enjoy forced sex," "women say 'no' when they really mean 'yes,'" or "it's a wife's duty to have sex" etc also contribute significantly to this phenomena.
In Bangladesh, husbands enjoy statutory exemption from rape against wives. S.375 of the Penal Code 1860, specifically creates an 'exception' in the following terms: “Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape”. A similar exception is created by S.9 of the Women and Children Repression Prevention Act, 2000. What about the other jurisdictions?
In USA, since July 1993, it is now illegal in every state to rape one's spouse. However, the offence remains worryingly under-prosecuted. In Britain, spousal exemption effectively remained in place till 1992 when it was abolished by the House of Lords [(R V R (1992); Criminal Justice and Public Order Act 1994]. South Africa too has amended its penal laws to accommodate marital rape [The Criminal Law (Sexual Offences and Related Matters) Amendments Act (SOA) 2007].
In India, the Verma Committee recently recommended, inter alia, that the spousal exemption be abolished. Indian MPs however, decided against it on the basis that criminalizing marital rape would weaken traditional family values in India, and that marriage presumes consent. To this 'rationale', it can be said that the act of rape itself destroys the institution of marriage, not the ability, nor the inability to legally prosecute such an offense.
The tide is towards abolition worldwide. In 2006, marital rape was prosecutable in 104 countries. Even Muslim majority countries have amended their laws accordingly, e.g. Malaysia and Turkey. Only a handful of countries, viz. China, Afghanistan, Pakistan and Saudi Arabia still allow this shameful practice. Therefore, it is submitted that this anachronistic and archaic provision be abolished in Bangladesh too in line with the growing demands of time. To cite Lord Lane CJ in R V R:
“…There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behavior”
The writer is a Barrister.
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