Seeks an exception for the definition of marital rape in the existing laws
Backing the long-standing demand of the women’s activists that marital rape be considered as an offence, the Justice J.S. Verma committee has said marriage or any other intimate relationship between a man and a woman is “not a valid” defence against sexual crimes like rape.
The three-member panel, which was constituted to recommend amendments to criminal laws in the wake of the national outrage over the December 16 gang rape here, has sought “an exception for the definition of marital rape in the existing laws.”
“The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation,” the committee said in its report. The committee said the “relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”
Full text of Justice Verma's report (PDF)
Quoting various court judgments in different countries, the panel said “the exemption for marital rape stems from a long outdated notion of marriage, which regarded wives as no more than the property of their husbands.”
“Our view is supported by the judgment of the European Commission of Human Rights in C.R. versus UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim,” the 630-page report said.
“According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked,” the committee said.
The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant, the report said. In South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendments Act (Sexual Offences Act) provides that marital or other relationship between the perpetrator and the victim is not a valid defence against the crimes of rape or sexual violation.
“Even when marital rape is recognised as a crime, there is a risk that the judges might regard marital rape as less serious than other forms of rape, requiring more lenient sentences, as happens in South Africa. In response, the South African Criminal Law (Sentencing) Act of 2007, now provides that the relationship between the victim and the accused may not be regarded as a ‘substantial and compelling circumstances’ justifying a deviation from legislatively required minimum sentence for rape,” the report said.
Attitudinal change
It is also important that the legal prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally. Citing the example of South Africa where, despite legal developments, rates of marital rape remain shockingly high, the Verma committee report points out that a 2010 study suggests that 18.8 per cent of women are raped by their partners on one or more occasion.
Rates of reporting and conviction also remain low, aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than other types of rape.
“Changes in the law, therefore, need to be accompanied by widespread measures raining awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship,’’ the report says while referring to a recent communication under the Optional Protocol of the Convention on the Elimination of Discrimination Against Women, where the CEDAW committee emphasised the importance of appropriate training for judges, lawyers, law enforcement officers and medical personnel in understanding crimes of rape and other sexual offences in a gender-sensitive manner.
Keywords: marriage and rape, Delhi gang rape, marital rape, India sexual crimes
Some of the comments here show the deep rooted fear of woman expressing
her will and fear for the power of no. If a woman says that she has been
raped by her husband, the court will certainly take into consideration,
the psychological scars. Don't worry about institution of marriage
because the real marriage is maintained by equal partners and based on
respect for each other. If the marriage falls apart because the victim
resist inhumanity, let it be.
Violent marital sex should be treated and dealt with as Domestic
violence. The idea of marital rape is stupid & absurd. Introducing term
'marital rape' in law, will kill the institution of marriage itself.
The idea of marital rape is absurd. When you marry, the consent of sex is implied. Introducing term 'marital rape' in law, will kill the institution of marriage itself, with state entering bedrooms of married couples. (why nor marital molestation, marital eve-teasing and marital stalking)?????
When a husband and wife sleep together, anyone can get sexually excited and indulge in sex. In troubled marriages, this concept will be a psychological torture to the couples; as Every time, husband and wife go for sex, they would terrified to get a stamp paper contract for consent. What if wife go for sex happily and in the morning accuse husband of raping her (or reverse). How 'fast track' courts will ensure justice? This suggestion if turned into law has a potential to be heavily misused, largely against men.
Any women either she is a girl friend or a wife should be given an option to decide
any sexual intercourse as consented or rape depending on her condition. She should
decide it as a rape, even on a later date, if the man cheats on him. The sole
testimony of the women should be taken as truth and in that case the man should be
hanged till death. After all we women are suffering on the hands of men for
centuries.
The recommendations are well taken to prevent abuse of man's power to force
himself on a woman , whether his wife or an intimate company. However,in a
lighter vein (may be seriously as well), does it mean that man may as well obtain
and safe keep record of written consent before the "act" from the lady (wife or
partner) to safeguard himself from possible blackmail or "change of heart" by the
lady alleging it was rape. Moreover, even with the written consent in his pocket,
the man may still face possible charges from the lady that the written consent was
taken under duress or the willing consent given was for an earlier "act" and not for
the subsequent one for which allegations are made. The situation may warrant
requirement of maintaining video graphic records. Even so, the possibility of
charges and allegations of the same having been morphed continue to exist.
In the Indian male dominated society, most of the wives are only raped most of the time. It is silent submission all along.
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