Criminalisation of marital rape - Part I

By S Sanal Kumar

“So God created man in his own image; in the image of God He created him: male and female He created them” (Genesis1:27). “Therefore, a man shall leave his father and mother and clings unto his wife: and they shall became one flesh” (Genesis 2:24).

This biblical edict forms the foundation of the institution of marriage. Sociologically, the definition of marriage is “an institution for legitimisation of sexual relationship and procreation of children”.

These theological foundations are now shattered with liberal theatrics, clamouring for penalising unconsented sexual intercourse within marriage, terming the act as ‘marital rape’ or ‘spousal rape’.

Marital rape is conceptualised as a form of domestic violence where sexual act is performed without the consent of the other partner, with its thrust on the female partner being portrayed as the victim. As an anathema to the ecclesiastical edicts and scriptural norms, ‘marital rape’ theory was inconceivable till 1960 when Europe witnessed widespread challenge to the traditional views on marriage and sexuality.

Slowly, legal systems in the world started acknowledging bodily autonomy and its importance, and thus paving the way for criminalisation of marital rape by judicial decisions and legislations.

The concept of ‘marital rape’ is really an oxymoron (for the words being contradictory to each other in its assemblage) when its contextual theological meaning is understood. For religions, marriage is a sacrament where man and woman unite together to the exclusion of all, with their explicit consent given to each other for sexual intercourse and procreation of children.

Thus conceptually, there can have no incident like a ‘marital rape’ or ‘spousal rape’ in religious glossary or in cultural ethos of civilised world.

“The wife does not have power of her own body, but the husband does: likewise also the husband does not have power of his own body, but the wife does. Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self control” (New Testament Corinthians 7:4 & 5).

Vedic scripture Brihadaranyka Upanishad says ‘if she does not willingly yield her body to him, he should buy her with presents. If she is still unyielding, he should strike her with a stick or with his hand and overcome her, repeating the following mantra: ‘with power and glory, I take away your glory. If she grants his desire, he should repeat the following mantra; “with power and glory, I give your glory” (6-4-6/7/8).

But Vishnupurana decries sexual intercourse with unwilling women (Vishnupurana 3.11.112).

“Your wives are a place of sowing of seed for you, so come to your place of cultivation however you wish and put forth for yourselves” (Verse, 223. Surah Al-Baqarah Ayat) is the Islamic injunction on sex, which legitimises forced sex on spouse.

Rape is generally viewed as a crime and a tort of theft of a man’s property. The crime part was not recognised as damage against victim in any way, but to father or husband. A woman, till marriage was forensically belonging to father and husband where the husband assumes proprietary right over her on marriage; the legalistic perspective in the primitive days so considered woman hood.

Hence ‘marital rape’ was an event, unthinkable for common man to digest. ‘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 in this kind unto her husband, which she cannot retract”, so propounded Sir Matthew Hale in his ‘History of the Pleas of Crown’, published in 1736.

The doctrine of coverture was the ruling philosophy in American and English law till second half of the twentieth century. The ‘coverture doctrine’ subscribes to the view that, upon marriage, a woman’s legal rights were subsumed by those of her husband.

Thus, once unified by marriage, a spouse could no longer be charged for rape of his own wife. Rape laws were thus created only to protect the proprietary rights of men in their women, but not to protect womanhood in its sanctified status. Woman as a chattle or property was the central theme of these thoughts, upon which `coverture doctrine’ was fundamentally premised.

Sexual intercourse within marriage is an act legitimised with institutionalisation of conjugal rights as being the bedrock for the existence of marriage and family.

A lawful marriage legitimises the conjugal act of sexual intercourse. The term ‘marital rape’ itself is a contradictory coinage of words. Physical assault against a spouse can be charged under general law. But exercise of connubial right to sex is a legitimate component of marital obligation, which stood insulated from prosecution of any kind from time immemorial.

Against this backdrop of social ethos prevailing, feminist movements took emergence to challenge proprietary propositions on sexual intercourse. Right of women to control their bodies and fertility, woman’s right to control marital intercourse, positioned consent in marital sexual relations as an alternative to contraception and abortion and controlled procreation etc. became seminal slogans for feminist movements. Political philosophers, John Stuart Mill and Harriet Taylor condemned marital rape as a gross double standard in law and central to the subordination of women.

Bertrand Russell, writes in his book, ‘Marriage and Morals’: “marriage is for woman the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution”. The feminist movements overturned the patriarchal concept of marital obligation of sex. With their sustained efforts and campaigning they turned the table to their side.

Thus, the perception of sexual crimes as offences against morality, the family, honor or chastity changed its foundation to offences against liberty, self determination, physical integrity. The Declaration on Eliminations of Violence against Women, published in 1993 establishes marital rape as human rights violation.

In 1986, the European Parliament’s Resolution on Violence against Women called for criminalisation of marital rape. The Council of Europe Convention on Preventing and Combating Violence against Women, the first legally binding instrument, made non-consensual sexual acts committed against a spouse or partner as illegal.

In 2006, UN Secretary General’s study on all forms of Violence against Women stated that (page 113):

“Marital rape may be prosecuted in at least 104 States. Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 do not exempt marital rape from general rape provisions. Marital rape is not a prosecutable offence in at least 53 States. Four States criminalise marital rape only when the spouses are judicially separated. Four States are considering legislation that would allow marital rape to be prosecuted.”

Early criminalisation of marital rape happened in Soviet Union (1922), Poland (1932) Czechoslovakia (1950), Sweden (1965), Norway (1971). Israeli Supreme Court declared marital rape as a crime in one of its decisions in 1980. The Common Wealth Countries which outlawed non-consensual sex within marriage include Canada (1983), New Zealand (1985), Ireland (1990). Austria, Switzerland, Finland are some of the European Countries which count in this category. The Spanish Supreme Court, in 1992, ruled that sex within marriage must be consensual and sexuality in marriage must be understood in the light of freedom to make one’s own decision with respect to sexual activity. France and Germany also followed the course by criminalising marital rape to align themselves with changed European notions on sex within marriage.

Not until the decision in R v. R [1991 All.E.R 481], was spousal rape punishable in England. Matthew Hale’s proposition of immunity to husband from penal consequences was widely accepted as the prevailing norm.

R v. Clarence [(1882) 22 QBD 23, (1886-90) All.E.R Rep] is an interesting case where a husband, suffering from venereal disease was prosecuted for having forced sex with his wife. The charge against him was unlawfully inflicting grievous bodily harm contrary to Section 20 of the Offences Against Person Act 1861 and of assault occasioning bodily harm under S.47 of the same Act. The conviction imposed was set aside by a Bench 13 judges with four judges dissenting. Hale’s theory was accepted as sound and rational by the majority in the social context and healthy family relationships then prevailing in the UK.

In R v. Clarke [(1949) 2 All E.R. 448], a husband’s plea for quashing of charge of rape of his wife while on judicial separation was not entertained by Byrne.J.

Story of a husband who was charged with rape and assault on his wife after filing a petition for divorce forms the factual matrix of R v. Miller [(1954) 2 All E.R. 529]. Linskey J. accepted Hale’s theory of exemption for marriage and quashed the charge of rape.

Marital plea was accepted in R v. J [(1991) I All ER 759] where the arraignment was rape on wife while living separately. Sexual Offences Act 1956 makes punishable only `unlawful sexual intercourse’ with a woman who at the time of intercourse does not consent to it. Sex within marriage, being a lawful act in its literal meaning, the spousal rape concept had no place in the English definition of rape.

But R v. R [(1991) 4 All E.R. 481] to a great extent made a remarkable deviation from Hale’s proposition. The House of Lords was called up on to examine once again the entire gamut and gravity of marital rape, where a husband was prosecuted for rape and assault on his wife in estranged relationship. The wife was living separately with her parents, but no matrimonial proceedings had started yet. The House of Lords, speaking through Lord Keith of Kinkel declared that unlawful intercourse defined in S.1(1) of Sexual Offences Act 1976 does not take within its connotation marital exception and hence forced sex on spouse amounted to rape in its pure and simple meaning.

Declaring marital rape an offence, Lord Keith declared, `this is not creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

Sexual intercourse by a male with a ‘female not his wife’ is the substratum of offence of rape in the US. Keeping pace with the evolution of law in the international arena, the Federal States in the US. made laws to punish marital rape, the punishments varying in line with degree of force used. Cohabitation, though was earlier an exemption rule, but later was taken out of impunity regime by legislation and judicial pronouncements. Much of the Federal legislations created a distinct offence of marital rape in the US with differing ranges of punishments, aligning its legal system with the changing norms of womanhood across the globe.

This is the first of the two-part series. Part II will discuss the issue from Indian perspective and the theoretical/legal concepts that marital rape entails.

S Sanal Kumar is an advocate at the Kerala High Court.