February 04, 2013

Marital Rape and Sexual Assault Law

It would appear at first glance, that the premise underlying the Sexual Assault Ordinance is what may be the most complete expression of patriarchy imaginable: the ownership of some women by certain men. This basic premise seems to be evidenced over and over in the text of the Ordinance through what is made a criminal offence and what it not, and a theme which seems to run through the substantive amendments to the Indian Penal Code is that men who would historically have been considered to own or have various rights to specific women would not be held to be criminally liable for sexually assaulting those women. The Indian Penal Code, as Madhu Mehra has said, "continues to be steadfast to its patriarchal moorings."

The most glaring example of this is, of course, the non-criminalisation of marital rape of women with two exceptions: where the wife is under sixteen years of age or where the wife is ‘living separately under a decree of separation or under any custom or usage’ — this not a spectacular change from the law in force prior to the coming into effect of the Ordinance. What is a spectacular change from current law is that it may be possible to interpret the Ordinance (as Pratiksha Baxi has done) to prosecute a wife for having raped her husband, even though the wife would not be able to similarly prosecute her husband under the Ordinance. This is because, under the Ordinance, sexual assault itself is gender-neutral, and there is no exception to it when it comes to a wife engaging in sexual activity with her husband.

The argument made to defend the non-criminalisation of marital rape of women may be considered from three angles; three sub-arguments, if you will, all leading to the same result: that marital rape of women should not be treated as a crime. The first is roughly that women need to be cared for by their husbands (even if the husbands happen to be rapists) and, therefore, imprisoning rapist-husbands is undesirable. The second is that women would lie and misuse a law which criminalised marital rape of women in order to settle unrelated scores with their husbands or to blackmail them. And the third is that there is a difference between ‘forcible sex with wife’ and ‘rape’.

The first sub-argument against the criminalisation of marital rape of women presumes to determine for a woman — all married women, actually — what is best for them, and that determination leads to the conclusion that it is in the best interests of a wife (and, possibly, her children) not to have a husband who has raped her be imprisoned. After all, it would lead to the end of the marriage (for it's said, in this context, no marriage could survive a prison term), and could lead to economic hardship if the husband were the sole breadwinner. There is, of course, no room in this worldview to consider the possibility that a wife may have no desire to be married to a rapist, or that a husband-rapist may, in fact, not be a breadwinner.

Those arguing against the criminalisation of marital rape of women citing this reason seem to point rather aggressively to the Domestic Violence Act stating that a woman can leave a marriage if she is raped (which is apparently somehow different from a marriage breaking down because of a rapist-husband being imprisoned, and ignores the fact that marital rape of women, while it may constitute cruelty, is not explicitly listed as a ground for divorce in personal laws). Nonetheless, opponents of the criminalisation of marital rape of women point out that the Domestic Violence Act recognises marital rape of women completely ignoring the facts that the Domestic Violence Act does not criminalise marital rape of women, and that recognition is not criminalisation. And, with the best interests of the woman ostensibly in mind, they claim that the use of the provisions of the Domestic Violence Act will not result in causing economic hardship to a wife and the children she may have.

While the Domestic Violence Act may (arguably) be beneficial to some women, and while its provisions may be preferable to some women in comparison to the possibility of invoking the provisions of a criminal law against husbands who have raped them, the choice of proceedings (if at all any) should, ultimately, be a decision for the individual woman to make, not for others to make for her by simply choosing not to enact provisions criminalising marital rape of women.

There is absolutely no reason (with reference to the law) why the recognition of marital rape of women as a legal wrong should be confined to either civil law or to criminal law. There are a number of legal wrongs which make available to those injured both civil and criminal remedies; these wrongs include defamation, the infringement of intellectual property rights and the invasion of privacy. In none of these cases is it mandatory for an injured person to pursue both civil and criminal remedies simultaneously (or for that matter, any remedy at all), and there is no conceivable reason for simultaneous pursuance to be required in cases of marital rape (if at all marital rape of women were ever to be made a criminal offence in India). As such, claims that the non-criminalisation of marital rape is for a woman’s own good must necessarily fail; all that the non-criminalisation of marital rape of women does is limit the legal remedies available to a woman who has been raped by her husband. And should she have neither reason nor desire to take recourse to the provisions of the Domestic Violence Act, — she could, after all, for example, be independently wealthy and have no reason to want to continue being married to a rapist — she could well be left with no remedy which specifically addresses her having been raped in the absence of a law criminalising marital rape of women.

The second sub-argument against the criminalisation of marital rape of women rests on the presumption that women lie, and will abuse a provision which criminalises marital rape of women. These claims of possible abuse of a law which criminalises marital rape of women are invariably expressed in conjunction with claims about the allegedly widespread misuse of Section 498A of the IPC which deals with a woman being subjected to cruelty by her husband or his relatives.

Those against S 498A, IPC appear to: (a) say that the Supreme Court held 498A is legal terrorism although what the Supreme Court actually said is that by misuse of s 498A, 'a new legal terrorism can be unleashed', not that 498A itself is legal terrorism; and (b) claim that the non-conviction rates in 498A cases indicate that most cases are false, ignoring the fact that the lack of a conviction (in any case) doesn't automatically always mean that a case was filed with absolutely no basis. And then, those against S 498A tend to back on the rhetoric of misuse — depending on who speaks, misuse is usually pegged between ‘95%’ and 'all'. This, regardless of the fact that the claim of 498A being nothing but ‘a tool to torture husbands’ is not even supported by a misinterpretation of conviction rates.

In fact, if one were to analyse NCRB stats, it would be extremely difficult (if not impossible) to draw inferences about the exact percentage of the misuse of S 498A of the from the stats alone, particularly given that the stats don’t clearly differentiate between mistakes of fact and law, or between those who have been acquitted and discharged. While there is little doubt that there is some amount of misuse of S 498A, as with the case of all laws, it is unclear why this particular law alone is singled out for supposedly necessary repeal. Of course, that doesn’t deter those screaming about the possible misuse of a provision which would criminalise marital rape of women from continuing to scream. Neither does it stop them from talking about general unfairness should the marital rape of a wife alone be criminalised, although, of course, there is never mention about possible misuse by husbands should they too have the ability to claim having been raped by their wives with reference to the provisions of a penal law. (And, in fact, it may be argued that under the Ordinance, husbands do have the ability to have their wives prosecuted for marital rape.)

And then, of course, the third sub-argument against the criminalisation of marital rape of women is that marriage somehow ‘evens out’ or negates rape, and that it is not possible to commit rape within a marriage. Those spouting this particular argument generally do so in conjunction with questions about how marital rape of women is to be proved, along with with rather unflattering statements about ‘feminazis’ and unprovable claims to the effect that ‘the only people who want marital rape to be criminalised are unmarried people who know nothing’. Never mind that laws are being changed (or have been) the world over to recognise marital rape, and to derecognise advance sexual consent granted by a wife upon marriage. Never mind also that those who drafted the Verma Committee Report suggesting that marital rape of women be criminalised are not all unmarried, (and neither are they all women, for that matter). Never mind that those arguing along these lines never quite seem to get around to explaining what the difference between ‘rape’ and ‘forcible sex with wife’ is. Never mind that most instances of rape, including marital rape, do not occur in public spaces complete with witnesses for 'proof'. And never mind that, consequently, the determination of whether or not marital rape has occurred should not be particularly problematic in comparison to the determination of whether or not non-marital rape has occurred.

All three arguments used to defend the non-criminalisation of marital rape of women — and, indeed, to urge for it — appear at first glance to be rather different in tone, tenor, and point of view. However, what is hard to escape is that they rely on stereotypes. The first argument assumes that women are weak and need their husbands not to be imprisoned, the second that women are dishonest, and the third that women are the property of their husbands who have a right to engage in sex with them without reference to their desires. At the (rather low) risk of straying into the realm of hyperbole, it’s extremely difficult to ignore that these arguments against the criminalisation of marital rape of women seem to converge into the image of wives being weak and dishonest chattels of their husbands — a stereotype which, of course, several centuries of patriarchy have familiarised us with. Unfortunately, it is also a stereotype which India’s 2013 Sexual Assault Ordinance appears to make no attempt to recast.

(Note: Some text in this post referring to the second sub-argument has been adapted from an update to The Use and Misuse of 'Dowry' Laws. The arguments themselves are arguments which I've heard or which have been presented to me over the last fortnight. The references to Pratiksha Baxi's article and Madhu Mehra's article were added to this post on February 5, 2013.) 

Also see: What Indian Criminal Law Says of Marital Rape