A Husband's Prerogative or a Human Rights Violation?: Navigating the Waters of Spousal Rape

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The definition of spousal rape is tricky, in part due to the traditional perception of marriage which awarded sexual favours to husbands, and also due to the religious and cultural beliefs of different communities. Classified as a form of domestic abuse, marital rape is not discussed enough but remains a serious and widespread issue across the globe. In the following article, I want to narrate the criminalisation of marital rape in certain countries, cases and incident rates of marital rape in contemporary society, and the issues that campaigners and activists face in combatting this abuse.

Previously considered a husband’s right, sex between spouses has been a focal point since early feminist movements of the 19th century. As human rights were explored, discussed and defined, marital rape seemed inconsistent with the developing sensibilities and was slowly viewed as a violation of basic human rights. Poland, for example, was amongst one of the earliest countries to adopt laws against marital rape and criminalised marital rape almost 20 years before other countries in 1932. Marital rape was established as a human rights violation in 1993 by the United Nations High Commissioner for Human Rights, although this is still not fully recognised by all of the member states. Currently, perpetrators can face prosecution for spousal rape in 104 countries.

Despite the leaps and strides made by various communities to establish women’s autonomy and authority over their own bodies, in many societies women continue to be seen as sexual property. For example, marital rape is not considered a criminal offence in India and victims do not have the backing of the legal system when reporting their abuse. The Indian Penal Code very clearly states that “sexual intercourse by a man with his own wife is not rape.” Sex is seen as a right awarded to husbands after marriage and there is no concept of consent to sexual relations between spouses. Indeed, government officials believe that “marriage presumes consent.” Much of this stems from the concept of dowries which are often considered a way of purchasing sexual rights from women upon marriage whereby women become the property of their husbands.

For example, the Society for Nutrition, Education and Health Action (SNEHA), a non-governmental organisation with crisis counselling centres, notes that out of 664 cases of domestic violence reported to their centre in Dharavi, 159 women reported marital rape. According to the United Nations Population Fund, 75% of married women in India are victims of marital rape.

However, statistics on marital rape are difficult to compile because many women do not report incidents, preventing useful, significant data from being gathered. Maneka Ghandi, Indian Union Cabinet Minister for Women & Child Development, noted that even if there was a law in India criminalising marital rape, “women won’t report it.” This is corroborated by Dr Rekha Davar, Head of Obstetrics & Gynaecology at a hospital in Mumbai. Dr Davar notes that reports of marital rape are “very rare” and patients “are not aware this is wrong.” Financial dependence on their husbands and low female participation in the work force also prevent women from reporting incidents of rape. Women are also discouraged by victim-blaming, criticisms for ‘airing their dirty laundry’ and intimate details, and embarrassment over not performing their ‘wifely duties.’

Moreover, even when cases of marital rape are reported by hospitals or victims, these cases are not registered by the police as they do not have any standing in the legal system. In an article for The Hindu, Roli Srivastava outlines shocking cases of domestic abuse and marital rape that were not registered by police authorities. For example, a woman was admitted into hospital for injuries in her private areas that were classified by doctors as “inflicted in a sexual assault.” However, this was disregarded by police as a “matter between a husband and wife” and they turned a blind eye.

A complex and multi-faceted issue, this has no clear solution. Attempts to criminalise marital rape have been heavily resisted and are struggling to foster a decisive change. A statement by Indian politician Haribhai Parthibhai Chaudhary conceptualises the issue activists are facing. Chaudhary claims that the criminalisation of marital rape defies “very ‘sanctity’ of marriage.” Indeed, this is corroborated by his colleagues that argue such a move would “weakens traditional family values in India.” These quotes highlight that activists are not only battling legal systems but fighting to change culture, long-held traditions and mind-sets that have been nurtured and encouraged generation to generation. In these societies, sexual rights come part and parcel with marriage; this is why the rape of an unmarried woman is seen as crime but the rape of a married woman does not exist. There are also other factors such as lack of education and illiteracy, poverty and deep-rooted religious beliefs that hinder progress. Many rural communities also have their own courts and legal systems which govern the areas. It would be ineffective to have an outside body enforcing rules or legal changes. Instead, we must foster change from within via campaigns and courses, educating both men and women and raising awareness for healthy relationships by joining and participating directly within communities.

A message from the editor:

If you or anyone you know is a victim of sexual abuse please do not be afraid to seek help.

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Further resources for both men and women can be found here.

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