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Marital Rape in India

by Janani Krishnan-Jha | Summer 2017

Despite the international uproar caused by the gang rape of 23-year-old “Nirbhaya” and the promise following the 2014 election of Prime Minister Narendra Modi, India’s laws regarding rape are still drastically behind the times. India’s penal code still makes allowances for rape within marriage and does not address the rape of young boys or non-binary genders, but there may be hope further down the road.

6. Girls Not Brides, “Marry Me Later: Preventing Child Marriage and Early Pregnancy in India,” Girls Not Brides, 2014, http://www.girlsnotbrides.org/reports-and-publications/marry-later-preventing-child-marriage-early-pregnancy-india/.

On December 12, 2012, six men gang raped and assaulted a 23-year-old physiotherapy intern on a Delhi public bus. After eleven days of failed medical attempts at revival, she eventually succumbed to her wounds. Shocked by her tragic story, people around the world rallied around her and named her Nirbhaya: “Fearless One.” In India, a country where a woman is raped every fifteen minutes, attacks like these occur so frequently that the overwhelming majority of them go unnoticed. Nirbhaya’s case proved different. Her death prompted an unprecedented national conversation, and sparked a reaction of unseen proportions in India.

 

From polished flats in Mumbai and run-down huts in Uttar Pradesh, women and men rallied around a similar sentiment: enough was enough. Protests erupted. A documentary following the movement grossed well in foreign countries, spreading outrage to the Western world. In 2014, after a string of highly-publicized gang rape cases, Prime Minister candidate Narendra Modi included increased safety for women as a central campaign promise, and won. “The government will have a policy of zero tolerance for violence against women,” he vowed in a 2014 address to the joint sitting of parliament, and for a while, it appeared as if his words held weight. That year brought sweeping legal reforms for sex crimes: heightened accountability for corrupt police officers who hide sexual assault, execution for repeat rape offenders, prohibition of acts such as stalking and voyeurism, and a fast-track court system for highly-publicized rape cases. Four out of the five perpetrators of the infamous 2012 Delhi gang rape case were sentenced to death, which signaled to many that India’s penal code might finally change to favor women’s safety.

 

They were mistaken. After the initial reforms, fervor faded, and progress stopped. Rates of reported sexual assault skyrocketed. Despite the expedited fast-track court system for rape cases, conviction rates remained stagnant. And in 2013, India’s Penal Code, Section 375 (“The Rape Clause”) was amended to read that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” That was four years ago. Today, in India, a man can still legally rape his wife.

 

PREVALENCE

 

Currently, women who are raped by their husbands face two choices: report their husbands for domestic violence under section 498A of the Penal Code, or stay silent. Low conviction rates and rigid marriage traditions cause most marital rape victims to select the latter.

 

Few women have dared to challenge the law in court, and the few who have faced only public humiliation and rejection for their efforts. In February of 2014, a woman petitioned India’s highest court to criminalize marital rape. Her petition was quickly dismissed. The court’s reasoning: They could not change the law for one person.

 

Over the past few years, rape has attained new heights in South Asia. Studies document explosive growth in sexual assault in India in the last ten years.[1] For women in small towns and bustling cities alike, rape presents itself as a stifling, tangible threat, an inevitable concern for any young girl; after all, even though teenagers comprise only 9% of the total Indian population, they comprise 24% of total rape victims.[2]

 

With rape culture exacerbated by sexual repression and conservative politics, rapists rarely face legal punishments for their actions. Rampant corruption ensures that even when rape cases make it to trial, guilty verdicts prove elusive; in rural states like Andhra Pradesh, only one in nine rape trials end in a conviction.[3]

 

Statistics regarding marital rape in India paint a more grim picture. In a recent study, one in three men in developing countries like India admitted to raping their wives. 98% of victims knew their rapists beforehand, and women are close to 50% more likely to suffer rape at the hands of their husbands than strangers.[4] The most trouble statistic though, only an estimated one percent of rapes in India are reported.[5]

 

WHAT IS RAPE?

 

Section 375 of India’s Penal Code defines rape as a “man…penetrat[ing] his penis...into the vagina, mouth, anus, or urethra” without her consent, through coercion, or while the woman is “unable to understand the nature of consent,” either by being intoxicated or of an “unsound mind.”

 

This legal definition reflects outdated views on sexual assault. First, defining the crime as a “man penetrating...a woman” promotes a binary and one-sided view of rape. By this definition, then, a man who sexually assaults a young boy is not a rapist; similarly, if either party identifies as gender non-binary, the assault no longer constitutes rape or elicits legal punishment.

 

Second, the definition goes on to offer an ambiguous description of consent. The Indian Penal Code maintains that women can express consent through “words, gestures or any form of verbal or non-verbal communication.” What stops a rapist, then, from alleging that his victim clearly invited him for sexual activity through suggestive gestures? Such a definition not only protects rapists, but perpetuates an antiquated and dangerous view of female sexuality, that a woman who acts or dresses provocatively must always desire sex.

 

Finally, the law views men who rape their wives while legally separated as less guilty. According to Section 376B of India’s Penal Code, men convicted of forcing “sexual intercourse” onto their wives while separated from them receive two to seven years in prison, notably less severe than the standard seven-year-minimum rape sentence. This sends a clear message to Indian men: even while legally separated, a woman still belongs to her ex-husband, still remains his property, to use and abuse as he wishes.

 

LEGAL CATALYSTS

 

This notion—that a woman belongs completely to her husband, that she is a tool for his pleasure—manifests itself even further in amendments to India’s Penal Code. In a 2008 appeal, the Supreme Court ruled that a woman abstaining from sex in her marriage is a form of “mental cruelty” that constitutes legal grounds for divorce. In a statement regarding the verdict, the Court stated that the wife’s reason for abstinence—that she did not want to bear children for at least two years—did not affect their decision, as the couple in question could have “used contraceptives and avoided pregnancy.” Through this ruling, the Indian government dictated a wife’s role as one almost primarily of sex-giver. Sex is a woman’s obligation in marriage, they maintained, regardless of extenuating circumstances.

 

This assertion is especially troubling given the exceeding prevalence of child marriages in India. In rural states like Bihar and Rajasthan, up to 70% of girls are married by their 18th birthdays.[6] With this ruling, 15-year-olds who refuse to perform sexual acts on their husbands risk being taken to court. And so, with the wife’s sexual duties clearly outlined in Indian law, women have little choice but to succumb to their husband’s will, no matter how violent or invasive.

In a country famed for its sexual hypocrisy—repressing female sexuality and sexual health education, yet festering with rampant sexual assault and harassment—legal decisions like these represent the agenda of a Parliament simply uninterested in progress. Without altering the legal framework surrounding rape and consent, unreported issues such as marital rape stand no chance of reform. However, with lawmakers neglecting to change the penal code, Supreme Court judges refusing to entertain petitions or hear relevant cases, and local law officials prioritizing bribery and corruption over proper implementation of the law, it appears unlikely that women will receive legal protection from marital rape anytime soon.

 

Not all South Asian countries suffer from this problem. In 2001, Nepal’s Forum for Women, Law, and Development petitioned the Supreme Court to criminalize marital rape, and in 2006, the Supreme Court declared marital rape illegal and punishable by law. While marital rape in Nepal only results in a 3-6 month sentence, Nepal is now one of the only South Asian countries to explicitly prohibit marital rape.

 

ACTION?

 

In one study, 92% of surveyed men understood the laws regarding rape in India.[7] For change to occur, we must apply pressure on Indian lawmakers to amend India’s penal code, and the Supreme Court to interpret the existing laws more fairly and justly.

 

Unfortunately, issues like marital rape, steeped in tradition and deeply ingrained in cultural gender norms, may take years to dismantle. Until then, we can encourage citizens to elect more progressive politicians and invoke the power of international pressure to expedite reform. And, of course, we can always hope.

REFERENCES

[1] Research Institute for Compassionate Economics, "Under-Reporting of Violence Against Women," Rice Institute, http://riceinstitute.org/blog/reporting-in-hindu-bbc-and-scroll-on-under-reporting-of-violence-against-women/.

[2] Ibid.

[3] Rukmini S., “Conviction Rates up, but Not for Rape,” The Hindu, August 19, 2015, http://www.thehindu.com/data/conviction-rates-up-but-not-for-rape-ncrc-data/article7558367.ece.

[4] RICE, “Under-Reporting of Violence Against Women.”

[5] Anita Raj and Lotus McDougal, "Sexual Violence and Rape in India," The Lancet, 2014, p. 383, http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(14)60435-9/abstract.

[6] Girls Not Brides, “Marry Me Later: Preventing Child Marriage and Early Pregnancy in India,” Girls Not Brides, 2014, http://www.girlsnotbrides.org/reports-and-publications/marry-later-preventing-child-marriage-early-pregnancy-india/.

[7] Vasundhara Sirnate, “Good Laws, Bad Implementation,” The Hindu, January 31, 2014, http://www.thehindu.com/opinion/lead/good-laws-bad-implementation/article5639799.ece

1. Research Institute for Compassionate Economics, "Under-Reporting of Violence Against Women," Rice Institute, http://riceinstitute.org/blog/reporting-in-hindu-bbc-and-scroll-on-under-reporting-of-violence-against-women/.

2. Ibid.

3. Rukmini S., “Conviction Rates up, but Not for Rape,” The Hindu, August 19, 2015, http://www.thehindu.com/data/conviction-rates-up-but-not-for-rape-ncrc-data/article7558367.ece.

4. RICE, “Under-Reporting of Violence Against Women.”

5. Anita Raj and Lotus McDougal, "Sexual Violence and Rape in India," The Lancet, 2014, p. 383, http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(14)60435-9/abstract.

7. Vasundhara Sirnate, “Good Laws, Bad Implementation,” The Hindu, January 31, 2014, http://www.thehindu.com/opinion/lead/good-laws-bad-implementation/article5639799.ece