Where Consensual Sex is Rape, and Forced Sex a legal right.

Is it women-friendly to call Consensual Sex ‘Rape’ and Forced Sex a legal right? It makes no sense unless we see a woman’s virginity (and bodies and  sexuality) as something that rightfully belongs to her husband, in laws and the society. Who benefits from this kind of mindset?

The government has now brought in an ordinance to introduce stricter penalties for crimes against women Patriarchy, instead of implementing recomendations made by Justice Verma Committee. [Do read more here]

1. Why is it that the Indian law makers believe that Indian men must be given the legal right to rape their wives?

Do they see a sexual assault as loss of honor/virginity/purity or as a criminal assault? If a sexual assault is seen as a criminal assault, then why is it treated different from any other violent assault?

When it is not a legal right to beat, cheat, treat cruelly or burn-alive a spouse – then what makes the government hesitate in acknowledging that forced sex with a spouse (or anybody) should not be seen as a husband’s (or anybody’s) legal right?

2. The same logic makes it legal for Indian men to rape fifteen year old girls if they are married to the minors. [link]

And here’s what makes the patriarchal hypocrisy so obvious:

3. Consensual sex between 16 to 18 years old unmarried teenagers is being seen as rape. Who do you think benefits from criminalising consensual sex between 16- 18 year olds? [link]

This is NOT what the Verma Committee recommended.

Women’s groups reject ordinance on rape laws, urge President not to sign it [Link] Do watch the video here. http://www.ndtv.com/video/player/news/fromndtv/263810

Related Posts:

1. Making Marital Rape a legal offence is the fastest way to make it clear that Rape means forced sex, not lost Virginity or Honor.

2. Who benefits from criminalizing consensual teenage sex?

3. “Here’s why I think the society should not obsess over a woman’s virginity.”

4. ‘Bill seeks to let 12-yr-olds have non-penetrative sex’. Does it really?

5. Pregnant at fifteen? No moral issues. Unmarried and pregnant at fifteen. Degeneration of society.

60 thoughts on “Where Consensual Sex is Rape, and Forced Sex a legal right.

  1. Well, some parts, I agree. Other parts.. I have a perspective to share.

    Consensual sex should be seen as a ccriminal offence because I have personally seen a lot of my girl-friends at school n even in the early days of college to agree to what their boyfriends want -it all begins with a kiss to demanding sexual ‘intercourse n when she says No, or she is uncomfortable, she is asked questions such as You don’t love me? You don’t trust me?
    Followed by expressions such as I cannot live without you, I need you to be there in my arms all the time etc etc etc

    And however developed n modern this nation becomes, a girl till she has undergone enough heartbreaks, dreams of an idealistic love and a partner. Virginity, sexual intimacy is something that she Can share with that one partner.

    And all much as we’ve seen, these young romances hardly work. Things end right after the guy is done having enjoying the sexual pleasures with the girl and there is nothing more in the relationship. He wants to move on to another girl now.

    What then, happens to that girl?

    • She feels sad for a while, moves on to better things, and learns a little something about relationships.

      Honestly, what part of your scenario seems even remotely like rape to you? Are you suggesting that women should only have sex if the guy intends to marry them?

      Adolescents do need substantial guidance from parents and such, as well as certain statutory protections from unscrupulous adults, but putting a blanket ban on adolescent sexuality is just counterproductive, not to mention naive. It’s not going to stop them from dreaming about perfect partners and having sex and breaking up afterwards. Those things are a part of life. Criminalizing them merely pushes perfectly natural sexual urges underground, and therefore further away from any support mechanisms and general guidance which we work to make available.

    • Stop infantalizing the women. Girls have brains just like guys. They also have sexual desires and it is not just to keep the guy happy that they have sex. In any case, an adult is responsible for taking independent decisions. Your kind of thinking does not take women to be complete human beings capable of taking decisions for themselves.

    • Firstly, I agree with your line of thought as to how things actually happen in real life regarding a young girl consenting to sex with her so called lover.

      But having said that, I don’t think your views hold much weight for people who have nothing to do with the circumstances related to such a consent. Rape should be considered only when force is used against the consent of a person. In the example you mentioned, a female consented to sexual intercourse. She may have given the consent after being persuaded for the same. Be it sweet talks or emotional blackmail. But that was the choice she made herself. So she cannot claim to have been raped in such a scenario. Whatever happens to such a girl later after the guy moves on to another girl, it is her own choice which she made.

      Secondly, the law doesn’t think that a girl below a certain age is mature enough to realize the consequences of her decisions even if she willingly consents to having sex with someone. Hence, such an act is considered rape by law. So the example you gave would be valid in case of a girl of 14. But not in the case of a girl of 20. But isn’t it amazing how a girl can suddenly become mature enough at the stroke of midnight on her 16th or 18th birthday ? But that shouldn’t be amazing knowing that our law doesn’t even consider marital rape as rape.

    • She moves on too.

      You do realise loss of virginity is not fatal or anything, right? The guy lost his virginity in your scenario too.

      “Virginity, sexual intimacy is something that she Can share with that one partner.” Why don’t you let her decide how many partners she wants to share it with?

    • Your reply assumes that sex is something wanted/demanded by the guy and reluctantly given by the girl. That itself is a fallacy.
      As much as we Indian women are almost ‘trained’ to regard sex with suspicion and disgust, the truth is that many college age girls are *as* capable of being curious about,and enjoying sexual experiences.

      What then, happens to that girl?
      She moves on, as does the guy. As much as everyone would have us believe, we Indian girls are perfectly capable of picking ourselves up and carrying on.

      You know, saving sex for marriage makes more sense in the West, as a marriage there is actually associated with romance, love and all that jazz.
      Telling a young Indian girl to save all her intimacy for her future husband is almost cruel when in all probability her marriage will have less romance and ‘idealistic love’ than her college relationship!

      • And before my statement is declared to be too ‘harsh’, I’d just like to point out that I have less of a problem with forbidding premarital sex due to religion, etc because it is not pretentious/hypocritical when applied to both genders.
        Using ROMANCE as the excuse to get people to behave ‘your’ way and delay having sex until marriage-in India at least- is laughable.

    • @Priyanka Dey,

      You are right about young girls being manipulated into consenting sexual intercourse by young desi men be in the name of professing their love or proving their virtue or even proving their modernity. In early bollywood movies that was the theme of numerous super duper hits where man promised marriage, or the temple marriage that was in secret and had no proof of marriage other than the picture with flower garlands and the jilted woman ended up pregnant or in a brothel. This has also been a clause in rape law, intercourse with someone under the impression (not actual but just impression) of being lawfully wedded husband. You are right in asking what happens to the young girl if the guy moves on?
      Earlier she ended up with pregnancy now STDs and HIV comes on the side.

      As everyone said is a choice she made and she was not forced into having sex. Emotional manipulation is an abuse and is hard to prove in the court of law. The need is to teach young women/girls they need not say Yes, in the name of love and it is never too late to say No or change your mind. The need is to teach young men/boys what healthy sexuality is and women have a right to say no and sex is mutually enjoyable and not just scoring game. Every action has a consequences and we pay for our choices. If men ignore the needs of their partners today they’ll never learn and enjoy true intimacy.

      http://girlsguidetosurvival.wordpress.com/2010/07/13/desi-dilemma-to-get-laid-or-not-to-get-laid/
      Peace,
      Desi Girl

    • Your comment is sexist and medieval. In your world, sex is something that (only) males want and something that the girls provide in exchange for something else (such as a relationship). Meanwhile, men never want those things, but are only after sex. This is nonsense.

      In the real world, both men and women desire sex. In the real world, if you remove the shame and social barriers, young women will seek out sex. They’ll do so about as often, and for roughly the same reasons men do. In the real world, men too desire meaningful relationships.

      It does happen that someone, male or female, is coerced into saying “yes” when he/she really means “no”. And this is something we should combat. We should teach young people about bodily autonomy and respect for each other.

      As for what happens after, it varies. Sometimes the relationships last for life, and sometimes they don’t. That’s part of life, and something young women can handle just as well as young men can. Once they’ve moved on, what remains tends to be good memories, and perhaps, if you’re lucky, lifelong friendship.

      I had 3 girlfriends before I met my wife, all of them are happily married today, and 2 of them are dear friends of mine. We had wonderful years together, and have many good memories. Where’s the problem ?

  2. So messed up. The govt is basically saying, ‘it’s fine as it is’. If half the people in this democracy are women, why are we still so seemingly powerless? If this was something to do with a religious or caste group, I believe we would have seen positive action because they are seen as a vote bank. Women, 50% of the country in theory are apparently not a vote bank. Women voters in the US rejected the republicans because of their ‘war on women’. This was one of the main reasons for obama’s victory. The govt here knows women are not going to be making independent decisions, so they are trying to conform to those who hold power over them – husbands.

    Also, it seems they are keeping the laws that provide protection to police, politicians, army etc from rape charges. It’s again saying that these people have, and should continue to have, power over women to abuse them. pretty sick.

    • Women in India are very far from being a vote bank. Women have been so victimized for so long, they are so caught up in this cycle, and they are very much part of it. They play their role to the hilt – by victimizing other women. When a woman is in hardship, no neighboring woman will come to her rescue. In some cases, neither will her own mother. If a woman decides to fight her battles rather than give in, she fights alone.

      The blame rests not just on men but equally on women. After all, if we don’t stand up for ourselves, then who will? This is the first step – for the women to support one another, for the mother to support the daughter. For the neighboring women to stop gossiping about another woman who they see as being more successful or independent or capable.

      On the bright side, I see young middle class girls in India not just studying to get married but studying to get real jobs and pursuing careers. With a career comes a support network of like minded friends. Once you have a peer group that approves of your value system, it is much more easier to stand up against tradition and break new ground. Of course % wise, this group is very small compared to India’s vast population, but we have to start somewhere. Maybe these young girls will be the harbingers of hope. I also see the young men changing. Many of them came out in large numbers in the recent Delhi protests. Very refreshing to see men and women working together against social ills.

      I think we are working backwards. Attempting to have better laws while the vast majority don’t see the need for them. Rather, if we make changes happen at the grassroots level, in our everyday interactions, in the choices we make, they will eventually translate into laws. And when they do, the laws will actually be implemented and upheld, because the change is real and intrinsic.

  3. Why is it that the Indian law makers believe that Indian men must be given the legal right to rape their wives?

    I feel that there is a reluctance, in certain sections of society, to acknowledge that rape isn’t something that happens only to ‘loose’, westernized women who prowl deserted city streets after dark.

    While what happened in Delhi was a tragedy, it is silly to believe that any large fraction of sexual assaults take that form. The majority of such assaults take place behind closed doors, away from press crews, in circumstances where the fear of social sanction strongly disincentivizes any protest from the victim. Such crime is not really treated as crime in the same sense as say, murder or robbery. Rather, what exists is a formalized social power structure, which not only facilitates the trivialization of rape itself, but also allows for such crimes to be swept under a farcical veneer of tradition and culture. The desire to preserve this part of ‘culture’ is, of course, the sheerest baloney, but it seems that no really feels the urge to call it out on being that, and therein lies our problem.

    • Totally agree. If there is one hallmark about our culture, it’s hypocrisy. When we do bad things, we do them in the name of scriptures, religion, and tradition. After all, who can argue with that?

  4. What the heck is new in this ordinance? Death penalty could always be called for in a violent enough death during rape. So whats new? Seems like a ploy to show they did something.

  5. Absolutely frustrated, angry and enraged that nothing will change in Indian society or laws in the near future. This basically endorses the patriarchal belief that a woman’s sexuality is the property of a man. Marital rape is still legal and the disgusting “two-finger” test for rape victim remains in place. If I am raped in India tomorrow, I will get no justice because according to law I am a loose woman who is not virgin and has already slept with men before marriage. Disgusted and absolutely hate the so-called “great Indian culture” from the bottom of my heart every time I read or hear about these ancient stone age misogynist laws for women in India. Anyone who comes and sings praises about Indian culture will get a piece of my mind, it is nothing to be proud of, I am ashamed of the Indian culture and society. No matter how great the culture supposedly is, the fact the women are disrespected, devalued and mistreated with impunity in enough for me to have zero respect for it. I might have violated all decent blog commenting rules, but I get totally infuriated on reading such bullsh*t crap laws.

    • I do get your anger, and I share your concern in some measure, but to be fair, things aren’t as bad as that.

      Marital rape isn’t completely legal in India – it’s more of a grey area. If accompanied by some kind of violence or ‘perversion’, criminal remedy is available under Section 498A.

      Also, regarding the two-finger test, while it cannot be denied that a woman’s sexual history continues to come up in rape cases on occasion, it is no longer considered a major part of the case, and will normally not be admitted in a court unless it demonstrated to be specifically relevant to the case of the defendant. There is no Indian law which says that a woman who has had prior sexual intercourse with men outside of marriage can be raped with impunity. In and of itself, prior non-marital sexual contact is never an exonerating factor in a rape case, although it is sometimes used by defendants as a character assassination technique.

      • // In and of itself, prior non-marital sexual contact is never an exonerating factor in a rape case, although it is sometimes used by defendants as a character assassination technique. //

        It may change the applicability of some sections (which in my opinion are utterly dangerous) of the The Indian Evidence Act (1872?) in the establishment of consent or lack thereof in rape trials.

        IANAL. You are probably the best person to confirm.

        • That doesn’t sound right, since the IEA was amended in 2002 to prohibit references to the victim’s sexual history under most circumstances.

          I may be wrong, but as far as I know, establishing that the prosecutrix was ‘habituated to intercourse’ does not in itself change her legal position; rather, it is a way to try and discredit her evidence by implying that she is of ‘immoral’ character. Before 2002, defendants were free to do so any which way they chose. After the amendment, they are forced to do it indirectly, but the practice continues. It works far less often than it used to, but it has been part of standard legal practice long enough to influence an entire generation of senior advocates (who, in turn, often strongly influence newer advocates), and therefore continues to be used indiscriminately in rape cases.

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  7. Have you read the comment ..people are singing the same tune
    feminist want more divorces in India ( blame feminism for every thing ) OR if women don’t want sex why they marry ( as if every woman in this country was asked for consent before marriage ) OR women will mis -use this law against poor husband like they do DV laws ( really ?? there is no DV , only misused laws by greedy women who want to take husband’s money and use that money to live alone – selfish feminists) .

    I heard someone saying that late marriages are reason behind all rapes . get them married , they will have sex with their wives and leave other women alone . So , in a way don’t rape a virgin but go ahead rape your own wife . They have legalized marital rape by this .

    And yes we have all the reasons to be angry with this ordinance

    • Who says more divorces is a bad thing?

      India’s divorce rate is low, not because Indian marriages are so happy, but because the consequences of divorce are often very unpleasant, especially for women.

      The quicker we move away from the socially enforced artificially low divorce rate in India, the better.

    • Yes I want more divorces ! I want every woman in India who is beaten by her husband to divorce. I want every woman in India who is coerced to or forced to sex, who is mistreated, who is disrespected, who isn’t given equal say in every important decision in the family, or who simply lives in a love-less marriage, to divorce.

      Of course the best thing is a marriage that works. But given the choice between divorce, or spending the rest of your life in a marriage that does not work, divorce is the better choice.

      Late marriages combined with prohibitions on pre-marital sex is indeed inhumane. It’s not the reason for rapes, but it is evil. Normal human beings do desire intimacy and sex from puberty onwards. Telling people that they must stay celibate for 2 decades is cruelty and serves absolutely no good purpose.

  8. IHM,
    If they agree to acknowledging marital rape, then they agree that morals and dressing ‘provocatively’ and drinking and smoking and having a boyfriend are NOT reasons why women are raped in India. They will have to defend their previous senseless stand.

  9. “Why is it that the Indian law makers believe that Indian men must be given the legal right to rape their wives?”

    I’d assume that a part of it is the social structure and the stifling controls built therein. Praveen has articulated the same brilliantly above, so no need to expound on it. Our law makers emerge from the same social structure and I doubt most of them have ever sat down to examine their basic premises on anything, leave alone something they’d consider trivial – gender relations.

    The second reason is most likely the political fallout of addressing the issue to empower the wife. Any ruling party/coalition that brings in a strict penalty for marital rape, especially in such high intensity media glare, will be taken to the cleaners by the opposition in the next elections. This is not a topic where there is any degree of positive consensus even in the urban crowd – take as a sample group the privileged beings who have access to computers and internet and check out any mainstream forum. The amount of bile that is poured on feminists and women ruining the world and westernised women ruining family and social values, blah, blah, blah is staggering…and you see just how strong the resistance to the idea is. Given that the majority of Indian voters live in rural areas, which are even more regressive than the urban areas, and you have the recipe for political suicide.

  10. We live in multiple hypocrisies such as this… I wonder how many men truly understand what rape is and when a no means no. A friend of mine is often forced to consent and she hates it…but unable to tell her family as they want her to keep the marriage for her daughter. There is no visible violence and yet the emotional repercussions are enormous–of not having control over her body, of not being heard, of being forced to have it when there is no desire, of feeling disgusted and violated. Marital rape is a cultural problem, a very deep cultural problem.

    • True. But what if someone says that consent can never be forced ? If your friend gives her consent, she may have been persuaded, but in the end it is her decision. If she is not telling her family, she is just choosing to be obedient to them. Unless physical force is used to obtain consent, how can an adult woman be forced into something she doesn’t want ?

      I have seen people using this logic to question decisions made by adult women who are not forced physically. I wonder what you would say to such people.

      • Well, consent can certainly be forced. Emotional duress can be far more powerful as a motivator than mere physical violence. Even the strongest people can fold and submit under threats of harm to loved ones, for example.

        My wife had an old school friend, whose husband would extract nearly every penny she earned on threat of beating up their (three year old) son if she refused to do so. She eventually got her divorce, but even with her foreign exposure, her business degree from IIM-K, a financial compensation package that many would be envious of, and a deeply supportive family, it took her years to realize that she did not have to put up with this. I can only imagine how much worse it might be for maybe a homemaker from Pitampura, Delhi, with children, an orthodox upbringing and a family that urges her to ‘adjust’.

        This is precisely why it is important to provide legal protections AND give people the wherewithal to utilize them. Both of those things are vital; one is of no use without the other. Even if marital rape were to be outlawed tonight, many women would have no way to utilize that protection afforded to them, and would simply put up with the abuse instead.

      • There is more than one way to force someone to do what you want, not just through physical violence or the threat of violence. In cases of marital rape, creating financial dependence is one way to do this. When you have to be obedient in order to survive, because you have no access to financial resources or any opportunity to make money for yourself, I think that qualifies as being forced. I know which blogger you are talking about, and I think from a legal perspective he has a point in that it may be hard to prove something like ‘forced consent’ (oxymoron?) without violence in court. Perhaps you should go to his blog and express your views there though.

      • @Karan, Indian rape law DOES in fact recognise certain instances of sexual intercourse are considered rape because consent was given under duress.
        Obviously , this cannot be extended to marital rape, but the law does have a provision for ‘forced consent’ , declaring it to be invalid.

        • It most certainly can be extended to marital rape. The meaning of “consent” is much more nuanced than “said yes”, what matters is not what you say at all (it’s perfectly possible, and indeed very common to consent without words). Nor have you consented if someone forces or threathens you into saying yes. Meaningful consent requires a free choice.

        • agrajag,

          In theory, you are not wrong, but I cannot imagine how one might go about proving such nuances in court to the standards that criminal courts typically demand (‘beyond reasonable doubt’).

          Women tend to have enough trouble proving something as cut-and-dried as physical assault. Perhaps there is a limit to how nuanced the law can be, and non legalistic mechanisms are required to further protect the rights of married individuals.

        • @Praveen It can indeed be difficult to prove coercion. This is a problem we can’t fully solve: if a crime happens in a closed room with only the victim and the perpetrator present, it will for obvious reasons often be difficult to prove what exactly happened, and in the absence of proof, we can’t convict anyone.

          That’s one of the reasons the courts are not only unwilling, but also unable to solve rape. They can (and should!) punish a few criminals, where there’s proof available, but we should not expect courts to be able to fix the problem by themselves.

          The best way of reducing rape and sexual assault, is to foster a culture of respect, to take early signs seriously, and to make sure our support-network and culture is open enough that we don’t contribute to the problem.

          A culture that punishes women for divorcing, risks contributing to the problem because a woman in such circumstances will hesitate with getting a divorce, even if she is being abused. A culture that supported and respected divorced women, would help against such problems.

          I also firmly believe that when somebody commits atrocious acts in private, there will in most cases tend to be public signs that not everything is well. What are the odds that a man will publicly and in social settings treat his wife with respect and dignity, but in private he will abuse her ? Perhaps it can happen, but I would guess it’s not the norm.

          If we we where better at clearly reacting to those parts of behaviour that are visible, I think this would also have a good effect on private acts. Instead, however, we all too often look away, telling ourselves that it’s none of our business.

  11. Indian women don’t grow up to be doctors or journalists, or comedians even – nope, we girls have two options, or at least two that matter – we can either be a sinner or a saint because as a woman there is no in-between.

  12. Well, as far I understand and perspect, its just so simple; fight illegal marriages(un-intended by any of the partners). Saying that a husband can’t force his wife for sex is just like saying a wife can’t ask her husband to spend on her. Get a common sense. There is always an option for divorse. But as for the cases out of marriage, don’t consider girls as some innocent, cute, mindless creatures. They chose their relationships themselves. Why blame others when they do their own damage by chosing by making wrong choices.

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