Rape is not only a serious offence against the body of a woman, but also a crime against her basic human rights, and a violation of the victim’s most cherished fundamental rights, namely, the right to life.
In Bangladesh, the definition of “rape” is found in the Penal Code of 1860. Under Section 375 of the Penal Code, a man is said to have committed “rape” if he has sexual intercourse with a woman against her will or where her consent is obtained by threatening to kill or hurt her. Now an important question may come up: what if the perpetrator is the victim’s lawful husband? Does rape exist in marriage?
No, our national law doesn’t recognise rape in marriage. Section 375 of the Penal Code of 1860, specifically creates an “exception” in the following terms: “Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.” A similar exception is created by Section 9 of the Women and Children Repression Prevention Act, 2000.
The exclusion of marital rape from the ambit of rape law is a reflection of deep rooted attitudes in our society about the role of a woman and the “wifely duties” she has to her husband. Denying sex, according to traditional beliefs, goes against the duties of an ideal wife. Moreover, major religions like Islam, Hinduism and Christianity emphasises on the idea that when a woman marries, she gives her husband complete authority over her, including her body.
As the idea of marital rape is still taboo in our culture, most people do not have any clear concept of what the term “marital rape” stands for. According to RK Bergen (1999) “marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent.”
According to a research by Rape, Abuse and Incest National Network (RAINN), marital rape often results in more damage to victims than rape by strangers, such as: Longer recovery from trauma; Higher likelihood of repeated assaults; Pressure to stay with perpetrator; Negative effects on children in the household; Difficulty in identifying what happened as a crime given the victim’s relations of love and care with the accused.
When a woman is denied the right to free choice, she is denied the right to good health, and is often condemned to a lifetime of ill-health and death that arises as a consequence of such denial.
International law has labelled marital rape as rape. It’s not only a part of domestic violence, also a severe violation of women’s basic human rights. Article 29 (a) of the Declaration on the Elimination of Discrimination against Women includes marital rape explicitly in its definition of violence against women. The UN Millennium development goals also includes, as goal no 3, the intention and aim of the United Nations and its signatory countries to “promote gender equality and empower women.”
According to a 2011 UN Report, as of April 2011, only 52 countries had amended their legislation to explicitly make marital rape a criminal offence; 127 countries have not yet taken the step.
Historically, English law provided that, when a woman marries, she is deemed to have given herself to her husband, and is his property. But in Britain, spousal exemption was abolished by the House of Lords (In the case of R v R, 1992 and Criminal Justice and Public Order Act 1994). In the US, it is now illegal in every state to rape one’s spouse since July 1993.
Even in those countries and states where rape in marriage is recognised as crime, it is often the case that the prosecution of offenders and the success of these prosecutions are greatly reduced in comparison with stranger-rape, because socially it is not fully accepted as a crime. For instance, in recent years, Malaysia and Nepal have been the two countries of Asia to acknowledge marital rape as a criminal offence, but with a lesser punishment. In Malaysia, five years is the maximum punishment a husband can be sentenced to whereas the maximum sentencing for a stranger-rape is 20 years. On top of it, the Malaysian law specified no minimum sentencing for marital rape so as to leave a loophole for the rapist husband to be imprisoned as less as one day. In Nepal, a rapist husband can be sentenced for three to six months.
There may be some arguments that marital rape is difficult to prove. Rebuttal of this argument is not too difficult. The mere fact that marital rape would be very difficult to prove is no reason for not recognising it as a crime.
In India, even after the social wake created by Delhi bus gang rape in December, 2012, and the recommendation made by the “Verma Commission” in 2013 that the spousal exemption in rape be abolished, Indian MPs however, decided against recognition of marital rape. The reason given by them was that criminalising marital rape would weaken traditional family values in India, and that marriage presumes consent. To this rationale, it may be argued that marital rape is destructive because it betrays the basis of the matrimonial relationship. A marriage in which a husband rapes his wife is already destroyed.
In Bangladesh, marital rape exists de facto but not de jure. It is a common but under-reported crime because the law does recognise the offence.
To conclude, the 150 year-old definition of rape in Bangladeshi law is grossly insufficient to give proper legal support to victims of marital rape. Therefore, it is high time to accept that a rape is a rape whether it is a marital rape or a stranger rape or a force-only rape. It is a heinous criminal offence and must be criminalised.