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  • Writer's pictureDurham Pro Bono Blog

‘It’s not rape if they’re married’

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Samya Amir




Marital rape, which is the act of sexual intercourse with the spouse without the spouse’s consent, has been identified by the United Nations General Assembly to be a form of violence against women in the Declaration on the Elimination of Violence Against Women (DEVAW).[1] Despite this, former colonies of the British Empire, such as India and Singapore, whose laws were influenced by those of England, specifically by Sir Matthew Hale in “The History of the Pleas of the Crown” where he spoke of wives giving irrevocable consent to their husbands[2], have not yet made marital rape illegal.


The UK acknowledged that there was something inherently wrong with these laws and, as a result, evolved its laws with judgements such as R v R.[3] Rationality and morality consequently prevailed over closed-mindedness and rigidity and this resulted in marital rape being declared illegal in the UK. However, this is not the procedure followed in 36 countries, where marital rape is not considered a crime.[4] This is worsened by the fact that, in various countries such as India, Pakistan and Singapore, marital rape is considered to be taboo and thus not spoken much about.[5] Considering we’re in the 21st century, a time when women’s rights are at the forefront of political discourse, it seems absurd that women continue to be treated in this manner.


Within a survey commissioned by the End Violence Against Women Coalition, it was found that a third of people in the UK believe that it isn’t considered to be rape if a woman is pressured into having sex but there is no physical violence.[6] In addition to this, almost a quarter of the 4,000 people questioned in the Attitudes to Sexual Consent survey carried out by YouGov[7] believed that sex without consent in long-term relationships is not rape, something which comes despite the fact that laws against rape in marriage have been in place in the UK since 1991. The report[8]also revealed a stark generational gap in attitudes with more than a third of over-65s believing that sex with a partner without consent was not rape, compared with just 16% of 16- to 24-year-olds. This is concerning because it is illustrative of the fact that there are people who are still not aware of their rights. Further, this also implies that, though the younger generation might be aware of their rights, those who typically act as jurors may not hold the same opinions.


In India, women are required to take recourse to a different law; Protection from Domestic Violence, which only came into place in 2005. This is worsened by the fact that the Minister of State for Home, Haribhai Chaudhary, said that India cannot have marital rape “as understood internationally” as an illegal act since various factors must be taken into consideration such as literacy, population, religious belief and the widespread perception of marriage as a sacrament. Here, the government took refuge behind the 172nd report of the Law Commission, which was released in 2000.[9] A month after this statement, Maneka Gandhi, the Women and Children’s development minister, very boldly stated that “Marital rape is not always about a man’s need for sex; it is only about his need for power and subjugation”.[10] Similarly, in 2004, the Supreme Court of India also ruled that treating marital rape as a criminal offence “would not be suitable for India.”[11]


To deny women this basic human right is illustrative of a culture whereby women are treated as if they were the property of men, something which seems more appropriately left to discussions of the stone age.


My concluding thought is this; within this article, I have primarily spoken of marital rape in the context of women, this area has not only been highly politicised but is also given great importance by mainstream media. But what about men? What recourse do they have? To sum it up, almost none, though marital rape could be a ground for divorce in the UK as well as India, it seems as if it’s not big enough an act to be made a crime or even to be spoken of in media. The selective aggression seems astounding to me.



 

Bibliography

‘Marital rape in India: 36 countries where marital rape is not a crime’ India Today (New Delhi, 12 March 2016) <https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12>.

Au-Yong R., ‘Immunity for marital rape being reviewed’ The Straits Times (Singapore, 5 April 2017) <Immunity for marital rape being reviewed, Singapore News & Top Stories - The Straits Times>.

Dasgupta K., ‘Why is India dragging its heels over the criminalisation of marital rape?’ The Guardian (London, 17 August 2015) <https://www.theguardian.com/global-development/2015/aug/17/india-martial-rape-law-criminalisation-dragging-heels>.

Hale M., Pleas of the Crown.

Manjoo R. and Jones J., The Legal Protection of Women from Violence: Normative Gaps in International Law (Routledge 2018).

R v R [1991] UKHL 12.

Topping A., ‘Quarter of adults think marital sex without consent is not rape, UK survey finds’ The Guardian (London, 6 December 2018) <https://www.theguardian.com/society/2018/dec/06/quarter-of-adults-think-marital-sex-without-consent-is-not-uk-survey-finds>.


Image Source

Samantha Allen, ‘An Ohio woman can be drugged and sexually assaulted—legally—if the perpetrator is her spouse. How marital rape in America secretly lives on’ DailyBeast (14 April 2017) <https://www.thedailybeast.com/marital-rape-is-semi-legal-in-8-states> accessed 19 February 2021.

[1] Rashida Manjoo and Jackie Jones, The Legal Protection of Women from Violence: Normative Gaps in International Law (Routledge 2018) p 13. [2] Sir Matthew Hale, Pleas of the Crown p 629. [3] R v R [1991] UKHL 12. [4] ‘Marital rape in India: 36 countries where marital rape is not a crime’ India Today (New Delhi, 12 March 2016) <https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12> accessed 10 February 2021. [5] Rachel Au-Yong, ‘Immunity for marital rape being reviewedThe Straits Times (Singapore, 5 April 2017) <Immunity for marital rape being reviewed, Singapore News & Top Stories - The Straits Times> accessed 11 February 2021. [6] Alexandra Topping, ‘Quarter of adults think marital sex without consent is not rape, UK survey finds’ The Guardian (London, 6 December 2018) <https://www.theguardian.com/society/2018/dec/06/quarter-of-adults-think-marital-sex-without-consent-is-not-uk-survey-finds> accessed 9 February 2021. [7] ibid. [8] ibid. [9] KumKum Dasgupta, ‘Why is India dragging its heels over the criminalisation of marital rape?’ The Guardian (London, 17 August 2015) <https://www.theguardian.com/global-development/2015/aug/17/india-martial-rape-law-criminalisation-dragging-heels> accessed 14 February 2021. [10] ibid. [11] ibid.

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