The sanctioned violence and rape within marriage in many cultures limits the possibilities of consolidating a democratic society with just and egalitarian values. As early as the 17th century, English jurist Sir Matthew Hale expressed his bemusement at the concept of rape within marriage when he stated that the husband cannot be guilty of a rape committed by himself upon his lawful wife because, in the nature of the matrimonial contract, consent was implicit whereby the wife was expected to submit herself fully. Marriage, he argued, fused two distinct human beings into one, so how could the husband rape himself was the rhetorical flourish that he added.
In the UK, it was only as recent as 1991, in the Regina vs R case where for the first time the husband was charged with rape upon his wife. After many rounds of appeal, marital rape was recognised as a crime in the UK and the husband in this case was convicted of rape. In the US, the state of Nebraska in 1976 was the first one to abolish marital rape, but the turning point was the New York (People) vs Liberta case in 1984. The judgment was clear that there was no reason for differentiating between marital rape and non-marital rape.
The declaration on the elimination of violence against women by the UN in 1993 helped focus on marital rape as a human rights violation rather than as a matter of culture and tradition alone. Rape is defined as non-consensual sex. The question of consent to sex within marriage becomes redundant because marriage is assumed to entail an irrevocable consent. In India, this debate continues to be acrimonious. Towards the end of the 19th century, West Bengal was seared by the death of 11-year-old Phulmanee, who was raped by her much older husband, Hari Maiti. Following this, the question that troubled social reformers and champions of tradition alike was the right age at which such irrevocable consent could be assumed.
Had Phulmanee been a year younger, she would have been considered below the age of consent. Maiti was not convicted of rape. A storm raged across India when the proposal to raise the age of consent to 12 was mooted by the colonial government and supported by the social reformers. Scriptures and traditions were the principles cited to avert the passage of the bill. Despite the resistance, it was passed by the colonial government in 1891. However, it was hardly ever invoked, telling us that laws cannot on their own address human predicaments.
It is in this context that we turn to the recent debates regarding the criminalising of marital rape. Accepting rape within marriage in a cultural context that values the sanctity of marriage and family is a challenge. A law that seeks to criminalise rape within marriage correctly assumes that women, even when they are wives, have certain rights as individual women.
The December 2012 gangrape in Delhi was followed by large-scale feminist mobilisation around the issues of autonomy and freedom for women, and against violence. In response, the government formed the Justice Verma Committee; among the many suggestions there was one to criminalise marital rape. The amendments to the law that followed did not do this.
Traditionalists condemn rape while simultaneously invoking the honour of the family in the same breath while feminists condemn rape on grounds of it being violative of the principles of bodily integrity and freedom of women. It is this difference that is vital in any conversation on marital rape. Flavia Agnes, the leading feminist scholar of law, has observed that rape is frightening to traditionalists because it has the potential of violating the social order that is ba-sed on tight control and regulation of women’s sexuality to ensure rightful lineage.
We need to remember that non-criminalised redressal mechanisms exist as part of the Domestic Violence Act, 2005 that take cognisance of sexual violence. So, does criminalisation of marital rape help? Some feminist activists have asked for it on the grounds that such legal provisions act as effective deterrents and create public opinion against marital rape.
However, others are not so enthusiastic. They wonder whether privileging the crime of rape dilutes the horror of the daily experience of fractures, burns, assault and battery that many women experience. From a feminist point of view, the question remains whether criminalisation of marital rape would result in acknowledgement of a woman’s bodily integrity? Besides, this law would still leave unaddressed the vexed issue of sexuality within marriage.
A cautionary note is struck by those who point to the impossibility of reconciliation in the marriage against the backdrop of criminal charges. And then there are those who are worried about the possibility of false accusations of rape by the wife against her husband. Elaborate procedures of investigative scrutiny and laws against blackmail exist to counter such things. This worry seems to come more from a fear of some agency that women might acquire within marriage and thus a shift in the dynamics of power.