What do you think of these doubts regarding recognition of marital rape as a crime?

What do you think of these doubts regarding recognition of marital rape as a crime?

“… recognizing marital rape

– if a marriage is violent, that must be grounds for divorce, but what are we saying when we insist it be treated as a crime? Is it preferable for a woman to have a husband in prison than be divorced? Does the idea of marital rape as a crime in fact protect the institution of marriage?

Rohini put it this way:

But given that marriage is a sexual relationship, should all cases of marital rape be punished with 7 years or more in jail?

Consider the following scenario: A young woman and man are married off, and the same night she comes crying and complaining that her husband raped her. Should he be jailed for what is, from his point of view, merely consummating their marriage?

Unless we are demanding very clearly that the state ensure that all marriages are consensual (are we? in which case, how?), then we can hardly demand that he should be jailed for years – that is simply inconsistent and unfair too.

So we need to make it much clearer what we mean by ‘recognition of marital rape’ before we can argue for it convincingly.” [Link]

From: “The impunity of every citadel is intact” – the taming of the Verma Committee Report, and some troubling doubts

Related Posts:

“Instituting the idea of marital rape raises the specter of a man going for long periods without sex even though he’s married!”

Making Marital Rape a legal offence is the fastest way to make it clear that Rape means forced sex, not lost Virginity or Honor.
Forcible sex with wife doesn’t amount to marital rape: Court

This is what Haryana Khaps are not saying.

“Girls should be married at 16, so that they don’t need to go elsewhere for their sexual needs. This way rapes will not occur.”

Is it possible to make a man see his wife as a partner, if he has been socially conditioned to see her as someone who is supposed to obey and serve him?

An email from an Indian father: I want to place on record my own story as a warning to anyone…

Why did they surrender themselves repeatedly and offer sex to their husbands when…

An email: “But my parents, fearing the society and their reputation begged him to take me back.”

95 thoughts on “What do you think of these doubts regarding recognition of marital rape as a crime?

  1. The recognition of marital rape as a crime and its trial and punishment will definitely need a strong and fast justice system to stand by it but that is true for any other gruesome crime.
    Often there is a very thin line between Consensual sex in marriage or outside marriage ,but this ambiguity is no reason for let a crime as serious as rape go unpunished.
    Someone with a better legal background here like Praveen would be able to get into the legal nitty gritties,all i know rape must be punished,the victim/survivor being married to or ina relationship with the rapist is one factor to be considered but it can’t be used to overlook the gravity of the crime.

    • I want to add yes Marriage does have a sexual part to it,but then is it an entirely sexual relationship? and isn’t it time we differentiate between a sexual and an oppressive relationship.A woman should not to be expected to SUBMIT herself on the altar of marriage,emotionally,financially or sexually.

      • I think all the confusion stems from saying “marriage is a sexual relationship”, as if sex is what defines marriage. But that is bogus. Marriage can very easily be a nonsexual relationship. Sex is immaterial to whether or not we call a relationship marriage. The only thing that defines marriage is a marriage certificate signed by witnesses.

        Marriage COMMONLY goes together with a sexual relationship, yes. But the sexual relationship exists entirely separate from the piece of paper saying two people are married. The signatures of husband and wife on that piece of paper are consenting ONLY to be married, not consenting to be in a sexual relationship. Consent for sex has to be obtained by each party separately, each time they have sex and ongoingly during each time they are having sex. Anything else is rape.

        • Just wondering in this context..if the idea of marriage as a sexual contract with implied consent is institutionalised so much so that refusal for sex makes a valid case for divorce, does it not automatically become at odds with the concept of marital rape?
          I believe firmly that marital rape is as much rape as any other.But if a partner refuses consent to sex, it becomes a valid case for divorce.
          Is it just me or is there a real problem here?
          Should marriage then not necessarily mean consent to sex as per law? or is there a time period involved?

    • If there is a law against marital rapes, then would that not discourage forced marriages? Then marriages will not be seen as license to have sex with an unwilling partner. As of now, we actually request/consider/permit/beg rapists to marry their victims because we associate marriages with sex – forced or otherwise.

      • If there is a law against marital rape, won’t we see lot of false complains on husbands?
        Since there is no effective mechanism to distinguish between a marital rape / consensual sex, law should permit divorce in case of marital rape instead of jailing / punishing men.
        What do you mean by forced marriage? Who is forcing whom? Do you mean parents are forcing their daughter to get married with someone whom she doesn’t like? If that is the case, parents are the culprit.
        If a partner is unwilling to have sex, why does he/she consent to marriage?

  2. There are so many flaws in this argument.

    “But given that marriage is a sexual relationship, should all cases of marital rape be punished with 7 years or more in jail?”
    – Marriage is a sexual relationship WITH CONSENT. Rape is having sex WITHOUT CONSENT. Huge difference.

    ” ……..she comes crying and complaining that her husband raped her. ……. from his point of view, (he is) merely consummating their marriage?”

    – if the husband doesn’t know the difference between consummating (with consent) and raping his wife, he’s not fit to be married. How can there be 2 different viewpoints here? She makes it sound like the husband and wife are having a ‘misunderstanding’ here about what happened.

    “If a marriage is violent, that must be grounds for divorce, but what are we saying when we insist it be treated as a crime?”
    – Violence is grounds for divorce, but violence is not a crime?? Huh?? Defies logic.

    • Absoutely Priya! Another issue in India is, as IHM pointed out, a lot of marriages are forced marriages. The women are told in their first night “let your husband do whatever he wants to, do not protest”. So, the woman may not really like it, may not want it- but the husband has sex with her. Is it consensual? Not really. Is it with consent purely consummation of marriage? Not really, again. But, if there is a law against marital rape, atleast will help create awareness that sex is not something the husband is entitled to from the wife. It is not that the wife is a sex object for the husband and might help in reducing forced marriages

        • Absoutely- in India, men think they are entitled to sex. That sense of entitlement exists in every sphere of their lives- getting a woman to be married to(without needing to woo her, date her,understand her, be there for her, love her), making the woman do all the household work, be entitled to dowry, not spend a paisa for marriage expenses, get her salary, be entitled to have kids but not do any of the hard chores like changing diapers etc, entitled to better education, to jobs- in every sphere of life.

          Atleast, this way, they may try to be better humans if they realize they cannot get sex unless they are nicer husbands- they cant beat up their wives on one hand and also have sex with her the very same day

        • Yes, there is positive ‘side effect’ to this. If a man marries a woman fully aware of her rights to her own body, he is more likely to be aware that she has other rights too. He would then treat his wife as an adult.
          While marital rape should be made a crime only on the grounds that it is indeed a crime, one can’t deny how much it does for the image of the married woman – it helps people open their eyes and see her as an adult in an equal relationship.

        • //While marital rape should be made a crime only on the grounds that it is indeed a crime, one can’t deny how much it does for the image of the married woman – it helps people open their eyes and see her as an adult in an equal relationship.//
          Very true.

  3. How many people can honestly say, including women ( and especially women), that they have never forced/pressurized their unwilling partners into sex? Should all those people, who can not rot in jails for 7 years? Consent has to be very precisely defined in case of marriage. I know two male friends, who, if the current definition of forced sex, along with the reversal of genders, is applied, can be characterized as constantly being sexually abused by their wives. However, neither they nor I think their wives deserve any jail time. Why are vaidecs doing such a marvelous business in India.

    • Are your friends’ wives physically overpowering them and forcibly having sex with their husbands? Are they threatening physical violence if the husbands refuse to have sex with them? If yes, then I would suggest that your friends seek the help of the police.

      If what you mean is that their wives use the silent treatment or are generally unpleasant unless their husbands agree to have sex with them, then that is not called rape even if the genders are reversed. Because ultimately the individual is making a choice of having sex with their partner to avoid unpleasantness. There is no physical threat of violence involved.

      Rape is forced sex with violence or perceived threat of violence. Trying to convince an unwilling partner to have sex with you in a non violent way is not called rape. At most, the wives can be called jerks for being inconsiderate of their husbands’ feelings and the husbands have every right to end the marriage if they think this is something they cannot put up with.

      • > Rape is forced sex with violence or perceived threat of violence.

        This is absolutely wrong. Rape is sex without consent, period. There does not need to be violence or percieved threat of violence. There only needs to be an absence of consent.

        > Trying to convince an unwilling partner to have sex with you in a non violent way is not called rape.

        NO. Trying to convince an unwilling partner in nonviolent ways SHOULD be called rape under many circumstances. Circumstances being:

        1. Having sex with an intoxicated or drugged partner. The reason should be obvious, this is nonviolent but a drugged or intoxicated party is incapable of giving meaningful consent even if they are saying ‘yes’, in much the same way as someone who is sleeping or someone who is a child is incapable of giving meaningful consent. Sex without meaningful consent is rape. FYI this standard applies to contract law in the US too, that contracts signed when the party is proveably intoxicated or drugged are automatically voided by law, even if the party was voluntarily drinking or using drugs on their own. There can obviously be exceptions to this when it comes to sex with someone you are already in a sexual relationship with, because you might argue that you know one another very well and their drunken ‘yes’ was still meaningful because of the long past relationship. But it makes sense to apply this rule when the people who are having sex are strangers on a one-night-stand, etc.

        2. When these nonviolent ways of convincing amount to (even mild) harassment. (Harassment does not have to be violent, and nor does it have to contain the threat of violence to be called harassment.) Repeatedly asking an unwilling partner to have sex with you when you are in an enclosed space like a home (i.e. they cannot easily walk away from you and go somewhere else) until they finally give in – this is absolutely and 100% rape.

        Let me give you an analogy to explain why. Consider the laws that govern sales and sales tactics (this is in the US, sorry, not familiar with Indian laws). Any contract that a customer signs or any larger-than-$25 purchase a customer makes IN HER HOME is automatically subject to a three-day “cooling off” period, where a customer can change her mind and cancel the sale or contract without any penalty, no questions asked, and be refunded all the money. This is because the law recognises that when a salesperson is using sales tactics on you in a place that you cannot walk away from, like your home, you can easily be coerced into buying things you do not want even without any threat of violence. When someone is repeatedly pestering us to do something we do not want to do in a place from which we do not have an escape, our mind behaves as if we are cornered in a fight – this much is biological fact, proven in brain scans and several behaviorial psychology studies. We give in because we are afraid and feel threatened, even if the other party has NOT threatened anything at all. Salespeople are well aware of this quirk of human psychology and will exploit it for their purposes. So will “pick-up artistes” on the prowl for sex (google them, and prepare to be disgusted). When it’s a sale we’re talking about, it’s easy to reverse the sale and refund the money, but when it’s sex that a person is being coerced into, there is no recourse but the law. That is why nonviolent coersion needs to be called rape.

        • Repeatedly asking an unwilling partner to have sex with you when you are in an enclosed space like a home (i.e. they cannot easily walk away from you and go somewhere else) until they finally give in – this is absolutely and 100% rape.

          A citation would be beneficial.

          I do not believe such a situation is treated as rape in any major jurisdiction that I know of.

        • This has got to be one of the most absurd arguments I’ve heard. I don’t think there’s even a need to respond if you believe that repeatedly asking for sex is considered rape.

        • “Rape is forced sex with violence or perceived threat of violence”
          In the Indian Penal Code, Section 375, rape is not always sex without consent. If the consent for a sexual act was taken under violence or threat of violence , it is still rape. Clueless is correct in her assertion.

          I’m not so sure about non-violent coercion, without any threats or mis-representation of facts. If the woman is fully conscious and aware of what she is agreeing to, and is saying yes to prevent any unpleasantness on the part of her husband, I don’t think it can called rape.
          Yes , it’s not right,it is essentially manipulative behaviour , making it a criminal offence seems a bit hard to digest.

      • Physical violence ….. amounts to rape

        Mental violence …. does not amounts to rape??

        Here I am not referring to any existing law. Just a thought after reading above comment.

        • Adults can walk away from and defend themselves against “Mental violence”.

          Physical violence cannot be ignored. The former is not rape. The latter is.

    • You’re confusing “pressurizing” with rape. Rape means physical coercion or the threat of physical violence. The moment a woman physically beats up a man to have sex we can call it a case of rape.

      Mental pressurizing may not be a decent thing to do but it’s not illegal. Because the woman has the capacity to just say “no”.

      • Bhagwad, and you are confusing “pressurizing” with “consent”. Pressurizing leads to submission. And submission is NOT always equal to consent. And lack of consent is rape.

        • The keyword is “not always”. Pressuring does NOT ALWAYS lead to submission. It can be resisted. Physical coercion cannot be resisted. And that is the real difference.

        • Bhagwad, though you comfortably shifted the “not always” between pressurizing and submission, rather than submission and consent, still, if pressurizing is NOT ALWAYS equal to submission, does it mean it is ALWAYS equal to consent ?

    • Requesting or persuading a husband to have sex with you equals raping him? So basically a woman initiating sex or sending out “in the mood” signals is raping her husband?

  4. That is actually an interesting statement. Many, many marriages in India are forced, and a lot more than that are semi-forced, i.e., the bride and groom are emotionally blackmailed into ‘agreeing’ to it. In these cases, it would be rape, even though the male party is technically innocent of the crime.

    I am not sure making marital rape a crime would have any effect whatsoever on forced / semi-forced marriages. It would certainly give women a way to get justice, but just as laws against domestic violence and child marriage haven’t exactly ended those practices, making marital rape a crime won’t help ending forced marriages. What will help is social education giving support to the progressive laws.

  5. The author is asking to legalize one crime ( marital rape ) in order to cover up another? ( forced marriage) How does this even work?

    In my opinion, marriage is a relationship between two adults. The terms of the relationship are also decided consensually between the two adults. This means that couples can be willingly involved in marriages that are sexual – or not. It depends on what they want out of marriages.

    When a couple agree to marry each other, they do agree to face the legal consequences of being married. But we cannot force how a marriage should work on the personal front. All we can ensure is that human rights are not violated. Rape, the last time I checked violates human rights and dignity in one of the worst possible ways.

    So yes, if a woman refuses sex on the first night of marriage, she has every right to do so. If a man does not want to have sex with his wife, he has every right to refuse too. It is marriage – not slavery for gods sake!

  6. What if the guy was forced/blackmailed into the marriage and the girl expected the husband to perform his manly duties? Force doesn’t have to be physical. Does that mean the male was raped by the woman? A likely scenario which might justify gender neutral rape laws?

    • Force doesnt have to be physical? Are you saying if the wife keeps a glum face and doesnt talk properly to the husband, that will amount to force? Rape is forcible sex- either due to violence or threat of it. What can be the likely scenario you are taking about?
      Yes, if the wife manages to physically overpower her husband and forces him to have sex with her or has him at gun point and has sex- then it is rape. And, yes there has to be a law for that- which is what is called marital rape

      • I don’t think male biology allows for a woman to overpower a man and subdue him. There’d be no arousal and hence intercourse wouldn’t be possible. Am confused. Women can seduce men, but not rape them under threat of violence.

        • That’s incorrect.

          Do see my comment below. Men (and women) can get aroused while being raped as a result of the mere mechanical act of sex. This does not take away from the fact of sexual assault.

    • I want to exactly understand how wives rape men.

      If a guy is unwilling , is he able to get erection which is important for penetration . Or is he being forced for oral sex and other methods where women can get orgasms. I had a discussion with a friend long back and he said that when he with held sex his wife would walk around in house naked and he gets aroused . That’s seduction not rape unless she spikes his drinks. Seducing a minor should be punishable law – no gender bias here.

      I am not denying that women don’t manipulate situations and men to get sex but please stop giving men are being raped in marriage co-relation whenever there is a demand or discussion for strict rape laws . you are comparing rare cases with what almost half of the population suffers from . Yes , I am quite sure almost every married women in her life would have agreed to sex when she did not want to and have felt disgusted and cheated after that . She might not define it rape but it does happen. How many of them are forced for anal , oral and other extreme sex or sex without condoms . They don’t know how to say no when no one is really bothered about it or where to complain . hush hush …we don’t discuss marital sex .its all between husband and wife

      • I am immediately wary of any argument that says women cannot rape men. If a woman can also be raped by being forced into anal or oral sex, a man can also be raped in the same way. Rape is not a crime where a penis is the only possible weapon. Any of this does similar psychological damage, and to frame it as only a crime that can be perpetrated by men makes it harder to get laws passed against it.

      • If a guy is unwilling , is he able to get erection which is important for penetration .

        Contrary to popular belief, male erectile response is not always tied to sexual arousal.

        Moreover, this is a rather moot point.

        A victim’s sexual arousal does not absolve a perpetrator from rape, and certainly does not constitute consent in itself. Even non-consenting individuals (both male and female) can be aroused via mechanical stimulation.

      • A threat is sufficient.

        I’ve personally known cases where such a threat existed (not from the wife, but from her politically connected family).

        Sexual intercourse while under such a threat is rape, plain and simple.

        • Yes of course. A threat of physical force is sufficient. But the underlying basis has to be physical force. You cannot threaten to sulk and then be called a rapist if his wife gives in to him!

          Of course, there are other side issues like deception, being a minor, not in a sane state of mind etc. But we’re only discussing the main issue of “force” here as far as I know.

        • Certainly sulking can not be perceived as a threat, but many other forms of threat exist aside from physical. Witholding money, divulging sensitive secrets, socially embarrassing someone – all of these should count as threats IMO. And of course a woman can rape a man! It may not be common, but it is not non-existent. In any event, laws against rape and marital rape are required to protect any person from being forced to have sex againt their will. Why can’t they be gender neutral?

  7. “Consider the following scenario: A young woman and man are married off, and the same night she comes crying and complaining that her husband raped her. Should he be jailed for what is, from his point of view, merely consummating their marriage?”

    If he physically forced his wife to have intercourse with him than yes, he should be jailed.

    Maybe the best method to apply in these kinds of cases is to develop social programs that educate people like said man (and possibly the wife as well) on what is legally acceptable versus what is legally unacceptable. Maybe she wouldn’t have even married him if she was aware that it’s illegal to coerce someone to be married, physically or mentally. But that would mean people (especially the business owners who hide money) paying their taxes–and the government actually using said taxes to develop these social programs instead of piling money in private Swiss bank accounts or hiding gold beneath marble flooring, etc.

  8. I don’t know why everyone is so stuck with the word ‘consent’ here. A rape is when the act is done
    1) Against the person’s will
    2) Against the person’s consent
    Will and consent are NOT the same thing. A person may give consent even when unwilling to. It will still be a rape.

    @ Clueless and Sharmi,
    Physical force is not the ONLY criteria to term a sexual act as rape. Even a person can be blackmailed into a sexual act. I personally know of a case where a girl was raped more than once by an acquaintance who threatened to inform her father that she had undergone an abortion. A father who had suffered a heart attack when his elder daughter had eloped with her boyfriend.

    So, this girl didn’t just make a choice of having sex with the rapist to avoid unpleasantness. She was actually scared of the probable consequences. And yet there was no physical force involved. So, should this not be considered as rape and instead the girl be accused of making a choice ? I don’t think so.

    @ preetidutta
    An erection is NOT ALWAYS required for it to be considered rape. Secondly, a woman need NOT always require to seduce a man to get an erection. During the REM stage of normal sleep, it is very common for a man to have an erection. This usually happens just before waking up.

    Though I don’t think a wife raping her husband is something common, but yes, it IS possible.

    http://wiki.answers.com/Q/Can_a_woman_rape_a_man

    And before people jump to conclude that I’m a marital-rape apologist, I must make it absolutely clear that I am not. I firmly believe that rape within marriage must be dealt with as any other case of rape. I was only pointing out some statements here which I didn’t completely agree with.

      • It’s not so simple. Suppose the husband says “Have sex or we won’t go on a vacation tomorrow”. She may be unwilling, but agrees just so that the children will have a good time, or she will have a good time or whatever. That’s not rape. It might make the husband a jerk, but not a criminal.

        Or if the husband implies “Have sex or I’ll be moody and sulky the whole day”. Again, the wife may agree. That’s not rape. That’s just the dynamics in a marriage.

        We need the concept of physical force. Of course, blackmail, deception etc are edge cases, but we’re talking about the most common scenario.

        • agree Bhagwad , we are confusing blackmailing and persuasion with rape. Others can be wrong but not criminal . gettiing consent by drugging is criminal .

        • @ bhagwad
          Where is the physical force when a person is raped while unconscious or asleep ? Does that mean it is not rape ?

          And just because things like blackmail are not the most common, does that mean they can be ignored altogether ? Instead of the examples you made above, what if the husband blackmails his wife just like the case I mentioned in my initial comment ? Will that be the dynamics of marriage and not rape ?

    • The issue of “blackmail” is an interesting one. Like I showed you, a threat to sulk is also technically defined as blackmail. In your example, threatening to tell the father is also blackmail.

      Who decides what is rape and what is not? I’m sure you’ll agree that threatening to sulk cannot be called rape. And yet it is pressurizing. It has to be decided on a case by case basis.

      My main point is that in the vast majority of cases, physical force is a requirement. In fact, pressurizing a girl to have sex by threatening to break up with her is also technically “blackmail” no? And yet I’m sure hardly anyone here would call it “rape”. It probably makes the guy an ass but not a criminal.

      • @ bhagwad
        You are again using childish examples to compare with serious blackmail. Of course the threat to sulk can never be the same as threatening something that would put the victim’s father’s life in danger. It’s silly to compare and equate the two. Technically, a child refusing to eat food for want of a toy is also blackmail. Does that mean we apply such childish examples to account as technicalities for serious crimes as rapes ?

        Who cares if something happens in the vast majority of cases ? Even if a few cases happen otherwise, you cannot deny the victim to complain of rape just because it happens in a select few cases. That’s ridiculous.

        • So again when putting the father’s life in danger you’re circling back to physical violence or death.

          Unless consent is invalid (as in the case of a minor, unconscious person etc), all consent obtained by the threat of non physical manipulation cannot be called rape.

      • @ bhagwad
        So at least you agree that physical force is not always required to obtain consent if a sleeping or unconscious person is said to have been raped.

    • One other thing, the concept of “duress” is a legal one. And it almost always involves the threat of physical or bodily harm in one form or another: http://en.wikipedia.org/wiki/Duress#Requirements . To summarize:

      For duress to qualify as a defense, four requirements must be met:
      The threat must be of serious bodily harm or death
      The threatened harm must be greater than the harm caused by the crime
      The threat must be immediate and inescapable
      The defendant must have become involved in the situation through no fault of his or her own

      Physical force is the main anvil on which the question of rape is decided.

    • There was an interesting case in the UK in 1973 where the court defined the limits of “Duress”. Here’s what it said when the blackmail threat was to tell the world about a person’s adultery:

      “a threat to expose the defendant’s adultery would not be sufficient threat to overbear the will of an ordinary person. For these purposes, the defendant must have a reasonable and genuinely held fear of death or serious harm, usually in the form of specific threats directed at the defendant, his immediate family or someone for whom he feels responsible”

      Courts all over the world use the “Physical threat” logic to determine if something was coercion or blackmail. Those are the only things that the law deems and adult is incapable of handling by themselves.

      So my point stands – at some level, physical threats have to be made or carried out. Unless the consent itself is not valid of course as in with a minor, unconscious person etc etc.

      • @ bhagwad
        “a threat to expose the defendant’s adultery would not be sufficient threat to overbear the will of an ordinary person. For these purposes, the defendant must have a reasonable and genuinely held fear of death or serious harm, usually in the form of specific threats directed at the defendant, his immediate family or someone for whom he feels responsible”

        Nowhere in this piece could I find the term “physical threat” being used. In fact, fear of death or serious harm – directed to immediate family is exactly what comprises of the example I mentioned in my very first comment. The girl was in fear of the life of her father whom she thought wouldn’t be able to hear the news that she had undergone an abortion. And many serious blackmails work on such lines without the use of physical force anywhere directly.

        PS : IHM, one of my replies to bhagwad has gone missing.

        • Oh, you’re talking about the father having a heart failure if he hears the new of his daughter’s abortion? Sorry, but you can’t lay that at the feet of the person threatening to tell the news.

        • @ bhagwad
          You can speak for yourself when you think what a person can or cannot do in such a situation. But it depends on person to person how they behave under circumstances of stress which are not physical. A person’s reaction to such situations cannot be ‘governed’ by law. But I think that’s entirely beyond your understanding.

      • I’m not sure how it is defined by the courts in India, but at least based on the definition you quoted,

        For these purposes, the defendant must have a reasonable and genuinely held fear of death or serious harm, usually in the form of specific threats directed at the defendant, his immediate family or someone for whom he feels responsible.

        it does not have to be PHYSICAL harm – “serious harm” does not have to be limited to physical harm. So the example above of extorting sexual favours in exchange for keeping the abortion a secret would fit this definition. Because the victim was threatened, and the threat was directed at her father, and him finding out could have caused him ‘serious harm’.

        • I think even in your example, it should not be considered rape.

          Consider this – telling the father by itself is not illegal. Leave aside the fact that the guy is demanding sexual favors in silence. The mere act of telling the father is not a crime.

          So if it’s not a crime, how does asking for sexual favors combined with a prior lawful act become a crime? Sorry, but that doesn’t hold water.

      • That’s a misleading citation, because Duress, in English law (and in most common law countries) refers to a specific affirmative defense against an accusation of having committed an unlawful act.

        It does not refer to the situation of a victim of a crime.

        What counts as “forced” in the case of sexual assault (or any crime involving some form of constraint) is usually defined by the law itself, and does not depend on any boiler-plate definition of the said constraint. In the case of sexual assault, a lack of consent is the key point; it consent exists, there are specific circumstances (not necessarily involving physical harm or a threat thereof to anyone) which invalidate it. If such circumstances can also be shown to exist, sexual assault is established.

        • @ Praveen (PT)
          That’s right. There can be a lot of things other than physical harm that can be used to obtain a forced consent. But I guess bhagwad does not understand that a person can actually be affected adversely by things other than physical force.

        • There are two cases under which it is classified as rape:

          1. Consent is given but not valid
          2. Consent is not given

          If we presume that the person was in a situation to give consent in the first place (not a minor, awake and sane, not deceived about who it was etc etc), then all consent obtained by non physical “pressurizing” should be considered valid.

        • Atul – we all can have different opinions. we are all entitled to them and voice them out in this blog. Would greatly appreciate if you can refrain from making personal attacks in this blog- Bhagwad is entitled to his opinions just as much as you are. Thanks!

  9. “A young woman and man are married off, and the same night she comes crying and complaining that her husband raped her. Should he be jailed for what is, from his point of view, merely consummating their marriage?”
    A marriage is consummated from ‘his’ point? ‘His’ point of view is to force himself on ‘her’? So is there a ‘her’ point of view too in marriages?
    A marriage should be consummated only when both the ‘he’ and the ‘she’ are ready. And if/when both are ready there won’t be anyone forcing nor anyone crying.

  10. “Unless we are demanding very clearly that the state ensure that all marriages are consensual”

    The state does indeed demand that all marriages are consensual. If a woman is dragged, drugged or beaten up and forced to get marriage, that’s illegal and the marriage itself is null and void.

    “Should he be jailed for what is, from his point of view, merely consummating their marriage?”

    Then “his views” are wrong. Marriage is not by definition a sexual relationship. The couple can choose to make it one if they want. There’s no god given right to sex. The most that can be said is that it’s a ground for divorce. But the moment you use force that is rape and the man is an outright criminal. Sorry, but no sympathy here.

    • “Marriage is not by definition a sexual relationship.” But “The most that can be said is that it’s a ground for divorce.”

      How can lack of sex be a ground for divorce if marriage is not a sexual relationship by definition? Sounds contradictory.

      • How can lack of sex be a ground for divorce if marriage is not a sexual relationship by definition? Sounds contradictory.

        Yeah, this seems nonsensical to me as well. I would understand if one of the spouses was INCAPABLE of consummating the marriage, and the other filed for divorce. That may qualify as deception. But withholding sex as a ground for divorce seems really weird.

  11. I stumbled across your blog from Indiblogger just a few hours back and have since been glued to this page as well as the pages you’ve listed as related posts. The continuous read of so many gruesome sex crimes has made me immensely sad, and I need to think about the ways in which I could contribute to make things change for the better. You’re doing a splendid job. Thanks for taking up this cause so strongly.

  12. I never knew marriage had to be consummated on day1 or night1 ! so IMO the coming home crying scenario is not normal at all.
    After marriage either of the spouse should come home crying for any reason, theyare partners they should be crying to each other. and if it’s an arranged marriage and either of them want time to connect then they should get it. and that’s certainly been the norm in the circle of my acquaintances.
    Of course there’s no accounting for sadists and narcissists of either gender. and those who think of marriage purely as a sexual convenience and in case of one partner who thinks forcible sex is ok. the laws are for those kinds.

    marital rape is difficult to prove , just like covert domestic abuse, there are characters who specialise in domestic abuse where there are no external signs. likewise there will be closet rapists too.
    by and large education and change of attitudes is the key. strict laws wil only help not hinder.
    marriage is such a great thing, so much fun, togetherness and just that one someone who is always in your corner. why cant people understand the benefits … so much easier to go thru life with a loving person besides you sharing your life and tasks .. how can patriarchy and master-slave logic substitute the joys of a great marriage?

  13. Unless we are demanding very clearly that the state ensure that all marriages are consensual (are we? in which case, how?), then we can hardly demand that he should be jailed for years – that is simply inconsistent and unfair too.

    Apart from the fact that we do indeed try to ensure this (to the same extent that we try to ensure other crimes do not occur), I don’t understand how the two are related.

    If the ‘consummation’ is consensual, she cannot claim that it is rape, regardless of the nature of the marriage itself.

    If it is not consensual, then the man committed rape, and is liable to be prosecuted accordingly. If he had no reasonable cause to believe that his wife had actually consented to the act, his point of view is irrelevant.

    if a marriage is violent, that must be grounds for divorce, but what are we saying when we insist it be treated as a crime?

    We are saying that married individuals are human beings too, and when their rights are violated, they must have full access to both criminal and civil remedies.

    Is it preferable for a woman to have a husband in prison than be divorced?

    Maybe it is or maybe it is not. That is not the point. The point is that married women should be entitled to the full protection of the law, at par with unmarried peers; their married status must not become a license for the violation of their rights.

    She can always choose to not file charges if she so wishes.

    Does the idea of marital rape as a crime in fact protect the institution of marriage?

    Once again, this is rather irrelevant.

    It is neither the legislature’s mandate nor right to try and ‘protect’ social institutions, even as people are denied access to justice, so they really should not concern themselves with this task.

    • “She can always choose to not file charges if she so wishes.”

      I’ve always believed that this should not be. If a crime is committed, it is an offence against the state as well as the individual. A person “absolving” another of a crime should not let the perpetrator off the hook. After all, it is the state who prosecutes a crime in the first place and not the victim. This is sufficient indication that the state has a powerful vested interested.

      The victim may of course deny that it happened etc, and she may “forgive” the rapist or whatever. In fact, the Madras High Court agrees with me:

      https://plus.google.com/115170732126609500444/posts/YZauMb3Y7Mk

      • A person “absolving” another of a crime should not let the perpetrator off the hook

        It does not let the perpetrator off the hook.

        It only means that the victim refuses to cooperate or even participate in the prosecution of the perpetrator, often by denying that any crime occurred at all.

        In jurisdictions that have embraced evidence-based prosecution in such cases, the State can still go ahead and prosecute if it wants to, although obviously, this becomes more difficult without the active cooperation of the victim.

    • Agree completely!

      I think people that are so bothered about ‘protecting the institution of marriage’ should first focus on getting rid of divorce laws, before insisting we enshrine marital impunity to crimes. In fact it’s a little alarming that someone thinks violence in a marriage should not be treated as a crime! Should murder in a marriage be treated a crime?!

  14. Again we’re back to the idea of consent with (marital) rape – whether rape can occur in circumstances other than violence or the threat of violence. I would also call it rape when there is blackmail or intoxication involved, or saying No would result in a life-threatening situation. But what about being pressured into sex? Imagine a couple and one partner says to the other ‘if you love me you will have sex with me’, and the other partner doesn’t want to but (stupidly imo) agrees. I personally think that it is not rape when someone has the option of saying No without dire consequences, but consents under pressure for social?societal? (can’t think of the right word) reasons. Still disgusting but not criminal.

  15. Consent is an issue with most of the crimes that are perpetrated. Would you call a relative pressurizing you to part with some of your money a thief? While we have clear cut ideas on robbery w,r.t consent why are we not able to extend the same to rape?

  16. I was thinking of IHM’s last 2 posts – and it occurred to me that they’re related. If a husband can have sex with his wife without her consent, then why does he need her consent to invite people over? In short, the husband has rights over her body and can order her to cook at short notice, and she’d better be nice about it. It is amazing how our society has bought into this warped dea of ‘buying’ a woman who will cook, clean, take care of the guy’s entire extended family, provide sex on demand, and all this with a smile on her face. Oh, did I say ‘buying’? Sorry! I meant she’s free! Oh wait, she’s not just free…. her family will pay YOU to get her off their hands.

  17. Rape should be condemned in any possible way and any person whose rights is being disrespected should get out. Its better to be happy rather than be in an institution where you are unhappy.

    Cheers
    Vishal

  18. “But given that marriage is a sexual relationship, should all cases of marital rape be punished with 7 years or more in jail?”
    – Even if sex is generally a part of marriage, how does this automatically make forced sex without consent of a partner ok? I don’t see the connection. Given how difficult it would be to even prove marital rape, ALL cases of marital rape proven in court should most certainly be punished.

    “A young woman and man are married off, and the same night she comes crying and complaining that her husband raped her. Should he be jailed for what is, from his point of view, merely consummating their marriage?”
    – Consummating the marriage is not the husband’s god-given right. If he does it by force, it is very much rape. I cannot understand why the criminal’s point of view matters. The delhi gang rapists were teaching the woman a lesson from their point of view, why should they be punished then?

    “Unless we are demanding very clearly that the state ensure that all marriages are consensual (are we? in which case, how?), then we can hardly demand that he should be jailed for years – that is simply inconsistent and unfair too.”
    – That’s just bizarre. We’re basically saying here that since the men were allowed to ‘get’ the women, they should be allowed to ‘use’ them too now.. otherwise it’s unfair. This view only makes sense if you think of women as objects owned by the husband and not as humans with a right to consent about their own bodies. Marrying my husband by consent is still not an automatic permanent-consent to sex at any time and all the time. I STILL own my body and can refuse. So a woman married against her wishes can most certainly refuse!

    So we need to make it much clearer what we mean by ‘recognition of marital rape’ before we can argue for it convincingly.” [Link]
    – I find nothing in these arguments that logically proves recognition of marital rape as an issue.

    • Carvaka, I dimly recall previous posts that IHM had done where the Delhi High Court had ruled that a wife who’d been raped by her husband (when they were separated) wasn’t raped. Also, a ruling which awarded the husband a divorce because the wife had refused to continue sexual relations with him yet opposed the divorce.

      The Delhi High Court had held that since the wife refused to have sexual relations, the man’s divorce plea would be upheld. Its all very confusing to me.

      Is consent implicit or is it not for married couples? PT or others with legal traning could perhaps explain this?

      • Consent is not implicit at all times and all places, but there exists a general expectation of some sexual intercourse at mutually acceptable times and places.

        The fact that a lack of sexual relations in a marriage is a valid grounds for divorce does not mean that either of the protagonists must consent whenever the other desires.

        • Thanks for clearing that up PT. I was under the impression that the HMA regarded consent for intercourse as being implicitly given during the duration of the marriage.

          So in the eyes of the law, a wife has the right to refuse sex periodically if she so desires? The discourse around marriage in India is such that many women assume that sexual intercourse is very much a husbandly right.

        • So in the eyes of the law, a wife has the right to refuse sex periodically if she so desires?

          Very much so, although she should be prepared for the fact that her husband is free to seek separation on those grounds if she refuses too often.

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