Reflections On The Limitations Of The Call For Full Criminalisation Of Marital Rape: Madhu Mehra

Guest Post by MADHU MEHRA

I will critically discuss the campaign for (full) criminalisation of marital rape to call attention to ways by which this campaign reduces a potentially tranformatory agenda on gender, sexuality and marriage, to one of law, crime and punishment. There is no denying that there is widespread sexual and other forms of intimate partner violence against women within marriage (including marital rape), and the absolute necessity of criminalizing such violence. Yet, the campaign for criminalsing marital rape is troubling – in terms of the aspects it selectively probelematises as harmful to women and aspects relating to sexuality and marriage that it is completely silent on. It is also problematic for privileging the criminal law remedies, over non-punitive interventions which require a broader engagement with concerns related to marriage and sexuality that are equally hurtful to women.

Let us first summarise the legal position on marital rape. Prior to 2013, marital rape was decriminalised except if it occurred during judicial separation. In such a case, the offence was punishable by a sentence of 2 years instead of the prescribed minimum of 7 years for rape. After the amendment in 2013, marital rape against a wife who is above 15 years is criminalised only in cases when the spouses are living separately, whether or not under a judicial order; where the wife is below 15 years of age, marital rape is criminalised even when the spouses are cohabiting. The sentence for marital rape has been increased from a maximum of 2 years in 2013, to that of 2 to 7 years. This increase in sentence is still less than the sentence for non-marital rape, which can within the range of 7 years to life term.  There is a different procedure stipulated for taking cognizance of a complaint by a wife who is above 15 years – it requires a court to be satisfied that a prima facie case exists for cognizance to be taken. The campaign against marital rape seeks to remove all these differentiations in relation to marital rape, to fully criminalise marital rape and bring the sentence on par with that of non-marital rape, which is, to increase it to a term of 7 years to life.

The campaign argues along two main points – first, a women’s bodily integrity and sexual consent are relevant as much within marriage as outside it, so an offence cannot be legalized on account of the marital relationship of the victim with the accused or be given a lesser sentence than what it would otherwise attract in law. And the second, that there is no existing legal redress for rape within marriage. Based mainly on these grounds, the recent PIL seeks the striking down of marital rape exception.

I will speak to two concerns – first, whether criminalisation of marital rape will fulfil the normative goal of recognising bodily integrity and sexual autonomy of women within marriage; and the second, that no other legal remedy for prosecuting marital rape exists, making this the only potential legal remedy available to women. To contextualise my response to both these points, I will first present PLD’s learnings from the field about the range of concerns in respect of sexuality and marriage that must be factored into any discussion on norm setting and on redress.

My understanding of the context is drawn from conversations over the last few years in PLD’s workshops and through its work with social workers, lawyers and service providers at the grassroots level. These workshops have been at the district and state level in Rajasthan, Gujarat, Jharkhand and Bihar – and at the national level with similar participants from the North East, UP, Maharashtra, Karnataka and Madhya Pradesh. The participants are drawn from state supported mechanisms, such as the Mahila Samakhya, Mahila Salah Evam Surakha Kendra, Protection Officers and service providers under the domestic violence law, as well as from non-governmental crisis support groups working with women. We initiate the dialogues on marriage and sexuality, by asking about the kinds of problems women talk about in relation to sexuality within marriage; ask about the kinds of issues women complain about; and about the kind of remedies they seek for these concerns. Through these dialogues, PLD has documented a range of problems that women from rural, semi rural areas, small towns and urban slum clusters share.

The problems in relation to sexuality and marriage that women most frequently complain of cover a wide spectrum. It ranges from various kinds sexual abuse, inability to negotiate periodicity or the frequency of sex, inability to negotiate acts of sex they like over what they don’t like, to sexual discontentment. There are many complaints about the lack of sex in marriage, lack of sexual pleasure in marriage. Complaints about discomfort with oral sex and anal sex are common. Here, the complaints relate to having to perform acts that the women perceive as dirty or not normal. Having to view pornography with the husband is also reported as a problem, as is the pressure to imitate sexual acts viewed. On further questioning, we understand that the problem with the non-normative sexual acts are not articulated in terms of consent, but in terms of revulsion towards acts that are viewed as dirty and morally ambigous. Another problem that is expressed relates to frequency of sex, or being compelled to engage in sex after a certain age, that is to say, when the wives are no longer interested in it. For instance, in cases of husbands of about 70 years, forcing themselves on their 60 something wives. Some complaints relate to disregard for privacy, and insisting on sex in presence of the family members. The acts described expressly as violence however, appear to be different. The violent acts include non-penetrative sadism and intentional infliction of pain, through biting, burning, beating, forced nudity etc. For us the important learning through such dialogues was that it is important to avoid framing questions in terms of ‘marital rape’ or in terms of legally defined offences. To understand how patriarchy controls sexuality within marriage, and its impact on women, it was important to broaden the question to include all kinds of problems women raise with social workers in relation to sexuality within marriage. Only through a broader dialogue, can we hope to understand ways by which heteropatriarchy shapes sexuality, desire within marriage, and which aspects of these are oppressive to women. This broad understanding can help us explore ways to equip social workers address each of the problems women experience.

We also asked about the kinds of interventions women seek in respect of many of these problems. The responses to this are similar to those extensively documented for domestic violence. Women primarily seek an informal intervention that brings a behavioural change in the husband without disturbing their marriage. Like in cases of domestic violence, women do not want sexual relations to end, rather they want the problematic aspects to end. They want someone to explain this to their husbands, ‘aap mere pati ko samjhaao’, or sometimes, just want to share their problems.  In cases of intentional infliction of pain and sadism, the responses were more decisive and firm about exiting from marriage. In these cases, the women separated, even opting for divorce, without foregrounding sexual violence. We learnt that while women may share concerns related to their sexual life with the social workers, they chose not to foreground these in legal proceedings. Given the range of sexual concerns documented by PLD, the current framing of the marital rape campaign, focussed as it is on non-consensual penetrative sex within marriage, to the exclusion of all other concerns raises more questions than it answers.

Using the above examples to frame my understanding of the context, I return to the two questions set out at the start. The first relates to whether the demand to criminalise marital rape, helps establish normative standards around women’s bodily integrity and sexual autonomy within marriage. Heteropatriachal controls over wife sexuality in marriage are exercised in many ways, as the examples suggest. Through rights to the husband, this control is inscribed in deep, cross cutting ways into civil, religious and criminal laws. Women’s chastity is a condition to her claiming maintenance and alimony, even after divorce. Any intimacy by a woman outside of marriage can be prosecuted under criminal law through adultery. The failure to consummate a marriage is a ground for dissolving the marriage, making sex an essential condition of marriage. In fact, denial of sex is framed in terms of cruelty within marriage. It follows then, that a campaign or initiative seeking to advance bodily integrity and sexual autonomy must go much beyond the marital rape exception and law reform. It must necessarily address issues of heteronormativity which are enforced through law (for example, section 377 and adultery). This conversation on normativity cannot be piecemeal or limited to the law – with unconnected campaigns against 377 and marital rape, while maintaining silence on issues of chastity and adultery. The campaign must embrace all aspects that control and stigmatise sexuality, without being limited to select types of sexual violence. It must treat sexual discontent, lack of sexual agency and revulsion towards non-normative sexual acts as concerns significant enough to engage with. More importantly, with sex being a necessary condition of marriage, and with women’s sexuality framed primarily in relation to marriage, the law cannot be the starting point of this conversation. We must seek to prioritise sexuality in our work in relation to gender, equality and on sexual violence, exploring strategies outside of the law to dialogue, challenge, raise consciousness on these issues. Only by gradually building such an understanding, can we hope to engage with all aspects of sexual normativity, including our own socialization related to these, and address concerns related to discontent, normal and natural – with the law being one part of such an engagement.

This brings me to the second claim on which the marital rape exception is prioritised to provide legal redress, arguing that no other remedy is available in the law. This position is factually incorrect. There are remedies for cruelty within marriage under section 498A, which by virtue of being very broadly defined, includes sexual violence; similarly, the PWDVA recognises sexual violence within the scope of domestic violence for seeking civil remedies. Therefore in cases where women need immediate legal intervention, our energies must go towards enabling them to raise these concerns, and to take on the obstacles that the concerns relating to sexuality will encounter in the legal process. The problems associated with access, procedure, evidence and delays will remain even if marital rape is fully criminalized. These barriers in the legal process are not exclusive to some remedies for women, but cut across most remedies, and will remain while prosecuting marital rape. In any case, the existing remedies will continue to be the only recourse available for non-penetrative forms of sexual cruelty reported, for which a provision on marital rape would not be an answer.

One area that needs intensive engagement is that of working with women on reasons that inhibit women from foregrounding sexual violence in legal processes. This primarily requires investment in developing capacities of agencies working communities, to enable them to help women break the silence around sexual violence. Addressing these barriers to articulating and prosecuting sexual violence within marriage is a necessary, as it shapes recourse to the law, including marital rape. This long term grassroots work, to build capacities of service providers, paralegals, counsellors and lawyers to address a wide range of sexuality concerns, to enable women voice these concerns, remains. Equally, there is a need to track legal and judicial responses to address the specific barriers as they emerge within the law.

Given our experience of rape prosecutions for the past many decades, in India and outside, we can safely assume that if marital rape exception were removed, only the most egregious cases are likely to succeed. The rest will end in acquittal. Preparatory work for law reform cannot be blind to this reality. Rather, in anticipation of these barriers, it must draw from comparative law, an understanding of how non-consent between spouses understood, the quality of evidence that enables justice dispensation in relation to marital rape, and so on, to address the  implementation issues that will arise. A campaign claiming to be relief-focussed must go beyond the singular demand of ‘naming’ a crime, to gathering sufficient guidance from comparative experiences of using and implementing such a law.

The present campaign seems more concerned with removing the marital rape exception in the statute, as part of the larger trend of exceptionalising sexual violence to the neglect of sexual autonomy, in more ways than one. By arguing that there is no legal redress for sexual violence, particularly marital rape in law, it seeks to treat marital rape as being distinct from not just sexual violence, but also from other forms of domestic violence within marriage. Only this can explain the demands that the punishment for marital rape be on par with non-marital rape, that is between 7 years to life (instead of 2-7 years in the law), without reference to the resulting disparity between the sentencing structures for forced penetrative sex and domestic violence/ cruelty within marriage (section 498A), which carries a sentence of 3 years. This only succeeds in privileging penetrative sexual violence as a crime over all other forms of domestic violence. That is to say, treating non-consensual penetrative sex as being more grave than other life threatening violence, fractures, and routine humiliation and battery within marriage.

These questions raised are not intended to discount the seriousness or the widespread nature of sexual violence within marriage. Rather it is to call attention to the complex ways in which sexuality and sexual violence are linked, which the singular focus on sexual violence or criminalising marital rape neglects. It also seeks a fuller engagement with sexuality in the context of marriage, given the primacy placed by law and society on sex in relation to marriage. A transformatory agenda must address all the ways by which patriarchy imposes sexual norms and stifles sexual autonomy differentially for men and women. Our agenda cannot be based on law reform that exceptionalises non-consensual penetrative sex as the worst form of violence. It requires working with our own socialization as a step towards enabling those working within the community to address a wider set of sexuality concerns (beyond egregious sexual violence). In this, law can only be one part. 

Madhu Mehra is Director, Partners for Law in Development.

This is based on the presentation made by the author at the roundtable organized by Partners for Law in Development on ‘Exploring the Continuum between Sexuality and Sexual Violence,’ on April 28, 2015 in New Delhi. The full report of the roundtable in four parts, is available on the website, http://www.pldindia.org

Source: http://kafila.org/2015/12/10/reflections-on-the-limitations-of-the-call-for-full-criminalisation-of-marital-rape-madhu-mehra/