"When you are raped by a stranger you have to live with a frightening memory. When you are raped by your husband, you have to live with your rapist,” says American sociologist Dr David Finkelhor.
In most countries, marriage happens by mutual consent. A couple invests trust, feelings, and presumably their whole life in the unison. Rape per se is an offense against a woman, violating her dignity and self-respect, and when it occurs within the four walls of a matrimonial home, it reduces the woman to the status of an object used merely for sexual gratification.
Most people in Bangladesh have a very stereotypical conception of rape -- that it is a possibility only with a stranger, and thus do not acknowledge it as a crime when it occurs within the marital bond.
Studies and research conducted on victims suggest otherwise -- the trauma of a victim of marital rape is much more. The victim might not be able to reach out for any support, and the ordeal may continue. Therefore, there is an immediate need for a distinct law on marital/spousal rape in Bangladesh, which should be at par with the accepted international norms on this issue.
In the context of Bangladesh, rape within marriage is a concept that agonizes the wife to the very core. The dread of having to face it and suffer through silently is an unbearable thought that affects the psyche of women. This self-enforced silence has a very detrimental effect on the emotional, psychological, and mental stability of women.
However, this silence is not exactly self-enforced. The lack of laws and abundant social stigmas against the act of marital rape is one of the primary reasons that the evil of marital rape is still hidden behind the sanctity of marriage.
Section 375 of the Penal Code (1860) states that “sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape.” As per this section, if the wife is under 13 years of age, only in that case does sexual intercourse with or without her consent constitute the offense of rape. Thus, this exemption clause makes it legally impossible for a man to rape his wife who is over 13 years of age.
Throughout the history of most societies, it has been acceptable for men to force their wives to have sex against their will. The traditional definition of rape in most countries was “sexual intercourse with a female, not his wife, without her consent.” This provided the husband with an exemption from prosecution for raping their wives -- a license to rape.
Bangladesh is also following the same route. The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, chief justice in 17th century England. Lord Hale wrote:
“The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract.”
Due to the law and societal practice, women who are raped by their husbands are likely to be raped many times. Marital rape is a serious problem, and millions of women worldwide suffer on a day-to-day basis. It is difficult to obtain accurate data of rape and violence against women within the family, in part because women are reluctant to report incidents, as women raped by their husbands may hesitate to report because of family loyalty, fear of retribution, inability to leave the relationship, the future of their children, or the fact that there are no stringent laws protecting the victims of marital rape. Despite underreporting, marital rape unquestionably has an enormous impact on the lives of women who experience it.
In 1991, in the case of RvR, marital rape was rendered illegal in England, while in Bangladesh, the British-mandated marital rape exemption still exists. In accordance with changed social norms, I think it is high time amended the British colonial Penal Code of 1860, or introduce new laws regarding marital rape.
By criminalizing marital rape, we can make it clear that the wife does not become property of the husband after entering into marriage -- the husband cannot have sexual intercourse whenever he demands.
Today, there are many countries that have either enacted marital rape laws, repealed marital rape exceptions, or have laws that do not distinguish between marital rape and ordinary rape. The criminalization of marital rape in these countries both in Asia and around the world indicates that marital rape is now recognized as a violation of human dignity in many countries.
We have advanced in many fields, but still marital rape is not considered an offense in Bangladesh. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offense in Bangladesh. It is high time for the law-makers to enact laws regarding marital rape and take necessary steps to fight violence against the women.
Nafiul Alam Shupto is a student of law.