THE NEVER ENDING DEBATE: Rape is the only crime where the victim becomes the accused

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Freda Adler a prominent criminologist and educator once said, “Rape is the only crime where the victim becomes the accused.” In a recent study cited by Thomas Reuters Foundation last year, India is considered to be one of the dangerous places to be a woman leaving behind war zone areas of Afghanistan and Syria. Rape is considered to be the most heinous crime which a human can ever commit, a crime against individuals, a crime against society, a crime against human’s dignity, one that reduces a man to an animal.

National Crime Records Bureau (NCRB) has some horrifying statistics to share according to which every 20 minutes woman is raped somewhere in India. Not only that, crimes against women have increased by 7.1% nationwide since 2010, and child rape cases have increased by 336% in the last 10 years. India has recorded an average of 80 murders and 77 rape cases daily in 2020, National Crime Records Bureau (NCRB) report revealed.

Marital rape is a sensitive as well as a delicate topic where most sexual violence is believed to occur within families but often get unreported. In India, section 375 of Indian penal code defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.” Followed by an exemption which clearly mentions that sexual intercourse by a man with his own wife, who is above the age of 18, is not sexual assault? The Indian Penal Code talks about marriage as a union of a man and woman, where it is believed to have an implied consent otherwise. The exemption aforesaid discriminates against married women to gain their right over dignity. This differentiation is directly violating the reasonable classification of Article 14 of Indian Constitution reads as under, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Decriminalising marital rape is a clear infringement of law, morality and human dignity. In a country, where a woman gets raped every 20 minutes and the likelihood of an Indian married woman suffering sexual violence is 17 times more, the need for an active legislation continues to prevail in the society. Even though in the recent past, having witnessed heinous crimes like Nirbhaya case, Hyderabad rape case, Unnao rape case and many more, there persists an urgent need for the judicial system to recognise marital rape as a criminal offence and not just a part of domestic violence. The only remedy available to such victims is civil remedy under Domestic Violence Act, 2005. Regardless of the identity of the rapist, they must be punished whether they are strangers or supposedly known relatives or even the husband. A woman who is raped by her own husband has to live and sleep with her rapist under the same roof with no protection rather humiliation from our judicial system.

As this situation seems to have taken deep roots in India, other countries decided to work upon their law and justice. Prior to 1992, forced sexual activity within marriage wasn’t illegal. The case of R v. R which was heard in the House of Lords, 1991 changed the future of UK law to the extent that it was possible for a man to rape his wife. The courts ruled that even in a marriage any non-consensual activity is rape. According to UK law, for the act of marital rape to be prosecuted, the prosecution must prove that

  • Penetration of the anus, mouth or vagina occurred
  • Act was intentional
  • No existence of consent was present

The punishment can range from 4-14 years, depending upon the aggregated facts and circumstantial evidence. The factors which can prove the case of marital rape are betrayal of trust, vulnerability of the victim, intimidation by the accused, children were present at the time of the alleged offence, attempt to threaten the victim, etc.

Canada overturned this exception in 1983, followed by South Africa in 1993, Australia enacted laws that criminalised marital rape.

Victims of rape suffer from various harms including physical and psychological harm. The data revealed by NCVS says that about 25% of rape victims are physically injured like black eyes, broken bones, etc. victims also suffer through medical discrepancies like sexually transmitted diseases and unwanted pregnancies. Psychological factors include anxiety, fear,

The combination of emotional and psychological factors to rape and sexual violence is called Rape Trauma Syndrome (RTS). In the case of Mhd. Iqbal v. state of Jharkhand, the court held that rape cannot be just treated as a sexual crime but also a crime of aggression and dominance. Rape victims suffer from social stigma, which leads to have a devastating effect on the victims resulting in low self-esteem and low self-confidence. As stated by court, rape is a shameless violation of a women’s’ integrity and dignity.

A similar case of such matter, i.e. Ravi @ Ram Chandra v. State of Rajasthan, the Supreme Court held that if appropriate punishment isn’t awarded then the court will be failing in its duty to provide justice only against the individual victim but also the society to which the accused and victim belongs.

The notion of marital rape is supposed to not being able to apply in Indian context due to various factors like illiteracy, poverty, beliefs, and values of the society which treats marriage as a sacrament. Former union minister for women and child development, Manteca Gandhi, in a parliamentary session held in 2016 said there cannot exist a law against marital law because marriage is a sacrament and even if there was, it would not change as none would complain.

In a recent case RIT foundation v. Union of India, the two judge bench is proceeding towards the constitutionality of the exemption provided in section 375 of IPC. The judicial system of continuous denial towards marital rape is rooted to our history, where women were viewed as their husband’s property irrespective of their wish, demand or needs. When Indian Penal Code was constituted and written, it was considered that a married woman was not an independent legal entity rather a chattel of her husband. While with the upcoming change in time and era, many laws have changed in the past few years but the concept of marital rape is still ignored.

The catastrophic effect showed on wives is an act of brutality and cruelty in order to exercise their power over woman, and in case of marital rape, the husband tries to assert his power and control over his wife. Males who lack appropriate resources, values and dignity to hold a respectful position in the society are the ones who use violence and hostile behaviour to cater their needs, ego and lust to uplift their self-esteem. Some believe that husbands have a right over their wife in each and every way whether physical or intimate, whether unemployed or poorly educated who dominate their wives by violence are doing nothing wrong since women are their husband’s chattel.

In case the justice system of our country fails to accept the validity and constitutionality of marital rape, it doesn’t mean that victims are suffering but also the country is supporting the ideology of male dominance and patriarchy. The system appears to be a victim of denying the opportunity to women to live a life full of respect and dignity. It is time that we start honouring the women of our country to join the 150 countries in criminalising the concept of marital rape.

Indian penal code was amended in 2013, many various clauses were added like consent, age, acid attacks but the government chose to stay away from touching the concept of marital rape. Recently, a private bill was introduced by congress MP Shashi Tharoor which sought to criminalise marital rape. The private bill was called women’s sexual, reproductive, and menstrual rights bill, 2018. However, the bill lapsed due to lack of support required to pass the bill in the lower house from the elected government. Criminalising an offence performs an expression of motive towards the betterment of the country. Although, criminalising would not necessarily have an effect of ground, but it would definitely express the disapproval of law and justice towards the brutality that has been prevailing in India since history.

Here I ask for a strong legal system supporting the victims of rape, amendments not just by domestic violence act under cruelty, but also extracting the exemption provided in section 375 of IPC, the undesired leverage provided to people who believe that wives are a property that owned just because they are married to them. Indian justice system affords to award an individual status to wife and husband in a marriage to protect the integrity. Furthermore, it is required that judiciary and legislation shall take cognisance of this concept and bring about a change within the purview of rape laws by eradicating Section 375 (exception 2) of IPC, 1860.

Author: Harshita Dixit

Editor: Kanishka VaishSenior Editor, LexLife India

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