According to Catherine Mackinnon, the reason behind rape is not ‘sexual desire’ but ‘dominance’ or rather ‘eroticized dominance’. And the most controversial element in proving a rape is ‘consent’. Consent must be of such a nature that it is understood to the man. If the man was unable to understand our consent, then, it probably is not rape because communication lacked which disabled the man to understand. It must be noted that rape is an offence of sexual violence against the women and by that, a woman should be allowed to frame the real meaning of ‘consent’ rather than a man. While many progressive communities feel that by criminalizing rape or marital rape, they are doing good to women, they might be totally wrong. Because we are still in the shell of defining everything from a male’s perspective. Its high time that we look at certain things that affect women from a female point of view.
The main reason why marital rape has not been criminalized is also the ‘confusion around consent’. Since marriage implies a regular sexual intercourse between the married couple, it is hard to ascertain when the woman gave her consent and when she did not. Additionally, it is also hard to establish if the man really forced her due to the nature of their relationship. Indian legislatures have also claimed that they would not like to ruin an institution of marriage by making marital rape a crime as this would allow many women to accuse their husbands. While it is true that women might be able to accuse the men easily, it is also true that most women suffer marital rape but cannot speak about it openly.
Many persons also claim that being raped by a person who a woman knows is not as bad as being raped by a stranger. I differ with this statement. When a woman is in a marriage, she not only trusts her husband but also believes that he is going to protect her. In such a situation, rape can cause her a lot of mental agony. It is important for us to have an outlook similar to a woman while understanding crimes against her or else we are not really making laws for her protection.
In India, marital rape remains an exception under the IPC to rape. If a girl is above 15 years and married, sexual intercourse without her consent would not amount to rape. The legislatures claim that the only difference between rape and a normal sexual intercourse is of ‘consent’. But this is a highly misconstrued idea. The difference between a rape and sexual intercourse is not just ‘consent’ but also of ‘dominance’ and ‘lack of acknowledgement’ of a woman’s feelings. Additionally, why any form of sexual intercourse with a woman under 15 would be a rape and a husband raping his wife who is over 15 years would not be a marital rape. The Indian laws are very ambiguous on this position and they fail to draw an intelligible differentia between the two situations. Hence, marital rape is not only an offence but also a violation of a woman’s fundamental rights. And, in order to remove the patriarchal and stereotypical notions from the society, we need to criminalize marital rape and understand it from her perspective rather than reinforcing male ideologies everywhere.
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