Marital Rape

“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist.”

 ― Philippa Gregory, The Red Queen

Marital rape also known as spousal rape is when a person engages in sexual intercourse with one’s spouse without consent. The implication of physical injury might not be there but lack of consent is essential. Historically sexual intercourse in marriage was considered a right of the spouse but as time is changing there is a call for the criminalization of sexual intercourse without consent under many conventions and under the criminal justice system of many countries. Not exhaustively but widely marital rape is inflicted upon the females. Despite the fact that we have enough evidence, The seriousness of rape perpetrated by a husband is not taken apart as that of rape perpetrated by a stranger. The marital rape exemption can be traced back to the sixteenth century where Sir Mathew Hale

As per the report “Crime In India” by NCRB in 2019 that estimated 99.1% of cases of sexual violence go unreported and a woman is 17 times more likely to face sexual violence from the husband. A report in 2013 by the UN committee of elimination of discrimination against women suggested that India should criminalize marital rape, the same was suggested by Justice Verma Committee which was formed after the 2012 gang rape case.

Also Read: Constitutionalism : A Study – Aishwarya Sandeep

Types of marital rape

Force only rapes:

It is when threats and violence are used to a degree to coerce the victim to engage in sexual intercourse with the spouse. This type occurs generally when violence in the relationship is mostly verbal and in the one’s where violence is used only during sexual interactions

Battering rape

Under this rape occurs as a continuation of physical assault. Physical violence continues during the intercourse. Physical assault (beatings) and rape occur together. Sexual abuse is a part of a recurring pattern of emotional,psychological, and physical abuse.

Obsessive rape

This kind is least prevalent but most cruel. This involved pornography. It was reported that under such kind objects are used to rape women, degrading pictures are taken and also a written record of the abuse was maintained by the spouse. These are also termed sadistic rapes in which the victim’s suffering is a source of pleasure for the spouse.

Arguments against criminalizing

The patriarchal mindset of the people continues to flourish which violates the rights of women in the society freely. A report by International men and gender equality says almost 1 in 5 women is forced to have sex.

● Irrevocable consent

Consent refers to the agreement between the parties to engage in some activity. Consent in sexual relations should not be assumed rather it should be taken every time when you indulge in a sexual relationship.

The impossibility of rape in marriage was suggested by History of the pleas of the crown which was published in 1973 according to which a man cannot be held guilty of raping his lawful wife because of the mutual matrimonial consent which cannot be retracted.

Implied consent

According to this theory, marital rape can never occur because all sexual acts in marriage are consensual. It is believed that when a woman enters into the contract of marriage the consent to have sex is implied.

In some cultures, consent is not even a thing that a woman can give. The family that arranges the marriage gives permanent consent.

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Traditional theories

● Marital unity

Marital unity generally talks about the nonexistence of a woman as soon she enters into a marital relationship. Her identity merges with her husband.

According to Coverture, a married woman had no separate legal identity. She had no right to sue or to be sued, hold property, etc. The concept of equality of partners in marriage at that time was seen as null and void. Both the partners were determined by the singular identity

Women considered a property

Historically rape was considered a crime against a man’s property(father or husband). That means that rape was not criminalized of the harm it caused to the woman but since there was an interference with the property of men. Therefore it was held that a man cannot rape his own wife. The property to protect was a woman’s virginity.

Modern theories

● Possible misuse for an ulterior purpose

Criminalization is seen as a probable tool that could be used for satisfying other purposes ● Difficulty in proving

It is believed that marital rape can be a difficult thing to prove in court. Public law cannot enter the confines of the bedroom. Proving rape is always based on circumstantial evidence.

 ● Criminalization might hamper the institution of marriage

Marriage which is considered as a sacrament might be hampered by the criminalization of marital rape and it can also become a tool for harassment of male counterparts.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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