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.”
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various court judgments in different countries, the panel said “the exemption for marital rape stems from a long outdated notion of marriage, which regarded wives as no more than the property of their husbands.”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.
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.