It’s time to criminalize marital rape

S. BAJPAI, ANKIT KAUSHIK and MEHAK BAJPAI Systematically separate the common arguments put forward to retain the spousal exemption from the criminal offense of rape in the Indian Penal Code.

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INOT recent hearings in the case RIT Foundation vs. UOI pending in the Delhi High Court, several arguments have been advanced in favor of both removing and maintaining the spousal exemption from the definition of rape. An analysis of the provision as well as their context exposes the curious showdown between deontological and consequentialist reasoning at the heart of the arguments. It also raises the question: should the impetus for reform come from the judiciary or should the task rather be left to the legislature?

The marital exemption from rape violates the right to equality insofar as it discriminates between married and unmarried women. It also assumes that a woman consents to all sexual activity at the time of marriage, and therefore impinges on her sexual autonomy and individual freedom. The exemption is based on the Victorian concept of morality that a woman is the property of her father and her husband. Most countries and former colonies that have borrowed such a morality have already abandoned it. In our context, the reading of articles 14 and 21 of the Constitution, as given by the Supreme Court in its Navtej Johar and Joseph Shine leaves no doubt that the exemption is outdated and must be brought into line with constitutional morality.

Read also : The Center must clarify whether it is in favor of maintaining the exception for marital rape

Potential for abuse?

Opposition to the removal of the exemption is based on well-known consequentialist grounds. As in the case of Section 498A of the Indian Penal Code [IPC] and the law on the protection of women against domestic violence [PWDV Act], it is alleged that the removal of the exemption amounts to an undue interference with the institution of marriage. The argument goes further that men would be crucified by their wives trying to monetize criminal laws in their favor. However, a potential for abuse of the law cannot be an argument against its adoption. The misuse of the law is not only a problem for the accused, but also for the victims. We therefore need to close the loopholes that could be exploited. The exercise requires a re-examination of procedural and evidentiary safeguards in rape trials. This requires a broader exercise than just reading the marital rape exemption – a task best suited to the legislature.

The exemption is based on the Victorian concept of morality that a woman is the property of her father and her husband. Most countries and former colonies that have borrowed such a morality have already abandoned it.

In his book, “The Limits of Criminal Punishment,” American criminologist Herbert Packer unequivocally states that the power to criminalize conduct belongs first to the legislature, then to the courts, and no one else. Therefore, it must also be considered whether the task of removing the marital rape exemption should be left to the legislature rather than the judiciary.

Read also : Marital expectations of husband cannot outweigh wife’s right to say no, says Amicus Curiae in Delhi HC in marital rape exception challenge

Other remedies?

Another argument put forward in support of its retention is that of “other remedies”. It is claimed that a victim of marital rape has the option of seeking a divorce. However, civil remedies, including divorce or PWDV, are hardly a substitute for criminal offenses. Similarly, it is argued that remedies are available to the victim under Sections 498A (cruelty by husband or relatives) and 377 (unnatural carnal intercourse) of the ICC. However, the existence of alternative remedies hardly validates the exemption from prosecution for rape. The idea that other laws offer “sufficient remedies” against rape only trivializes the real violation inherent in rape. Rape laws aim not only to protect physical safety but also to preserve women’s sexual autonomy; they exist to also recognize the unique nature of this offense and its pervasiveness.

A potential abuse of the law cannot be an argument against its enactment. The misuse of the law is not only a problem for the accused, but also for the victims. We therefore need to close the loopholes that could be exploited. The exercise requires a re-examination of procedural and evidentiary safeguards in rape trials.

Rape trials, in and of themselves, are problematic. The fact that it is notoriously difficult for the prosecutor to prove the fact of rape is well documented, especially in cases where the only evidence that can be relied on is the testimony of the prosecutor. Even if the prosecutor’s testimony alone is sufficient to secure a conviction, courts generally tend to acquit unless that evidence is found to be of “exceptional quality” – an extremely high standard. Reversing the burden of proof by adding a presumption of absence of consent in cases of aggravated rape has also not helped victims much. The conviction rate in rape cases, according to 2019 data from the National Crime Records Bureau, stood at a meager 27.8%. Instead, the reversal of the burden of proof has largely diluted the established principles of criminal law and has been the subject of much criticism for it.

Rape laws aim not only to protect physical safety but also to preserve women’s sexual autonomy; they exist to also recognize the unique nature of this offense and its pervasiveness.

These problems are likely to multiply when the accused is the prosecutor’s husband. Removing the spousal exemption could lead to greater evidentiary issues surrounding consent. For example, the evidentiary provisions in rape trials create an obstacle with respect to proof of prior sexual activity. However, it may well be relevant for the accused to refer to prior sexual activity to establish consent. These issues are absent in other jurisdictions to the extent that courts are empowered to dilute the hurdle of proof of prior sexual activity if it is found to be in the interests of justice, although this must be weighed against the dignity of the victim. .

Read also : Marital rape exception: Basis of consent is right to bodily integrity, Amicus Curiae claims before Delhi HC

Should rape be a gender neutral offence?

Some also argue that if the spousal exemption is to go, the offense of rape must be made gender neutral. However, given the hierarchical nature of a heterosexual marriage, in particular, this argument is rather ridiculous. We cannot ignore the crucial differences between a woman’s social position and what marriage means and implies for men and women, respectively. This lends a false neutrality to an institution that almost invariably harms the safety and well-being of women in the patriarchy. Feminist scholars argue that in India, where violence against women in the form of honor killings, dowry-related violence, and mental and physical abuse in the domestic setting remains pervasive, a gender-neutral provision on rape marriage would further marginalize them.

The existence of this exemption encourages the subordination of women in their private lives. It also means that the state has legitimized men’s illegitimate control over women, insofar as it can even authorize routine sexual assaults on them in order to ensure this control.

The argument that the institution of marriage would collapse if the exemption were removed is rather strange. The existence of this exemption encourages the subordination of women in their private lives. It also means that the state has legitimized men’s illegitimate control over women, insofar as it can even authorize routine sexual assaults on them in order to ensure this control. As the American feminist jurist Robin West would say, by legitimizing this physical violence against married women by their partners, the state creates a separate political world, where the man is the sovereign and the woman a subject. The institution of marriage therefore becomes not a democratic home or a nurturing environment filled with love and harmony, but a site of organized and legal sexual violence against one of them. However, the state has an international legal obligation not to be complicit in the escalation of gender-based violence and to provide security to all its citizens equally.

(GS Bajpai is Vice-Chancellor of Rajiv Gandhi National Law University, Punjab, where Ankit Kaushik is Assistant Professor. Mehak Bajpai is a Research Fellow at National Law University, Delhi. Opinions expressed are personal.)

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