There is a heated debate currently going on about the whole notion of marital rape. A topic of much interest, with many newspapers publishing articles, as well as it being discussed on various TV networks etc… The overwhelming consensus seems to be that marital rape should be considered as, well, rape of a woman i.e. of the wife by her husband and should be punished according to extant rape laws.
Needless to say that punishment for committing rape is severe with extended jail terms and the like… For e.g., in our country, rape is punishable for a period of not less than seven years but which may be extended to a life term. Further many are of the view, especially after the Nirbhaya incident that rape should carry the maximum possible punishment, namely the death penalty… Now, rape is a serious offense and should be punished severely though for the record, I am against the death penalty. As an aside, I state that entailing the death penalty for rape amounts to a violation of one of the basic tenets of English Common Law which state that punishment should be commensurate with the crime so committed. A life for a life i.e. the death penalty be instituted only for murder and not for any other crime… Rape, though of course being a serious offense, still does not kill you and ergo cannot command the death penalty.
Coming back to the topic at hand, let us discuss specifically the notion of marital rape. Marital rape, in the generally understood context, involves the husband forcing his wife into sex when, for whatever reason, the wife does not want to… Many are calling for this deed to be made a criminal offense and the husband be punished as per prevalent rape laws i.e. the clamor is to treat ‘marital rape’ as, well, ‘rape’. Now, in this article I take a firm stand that I am dead against making marital rape a criminal offense i.e. equivalent to the act of rape as understood in the general sense.
Now, before I give my reasoning for what is a controversial and could well be a minority stance, let us first get to the definition of rape. The generally agreed one is; any type of sexual crime, usually involving intercourse, perpetrated against a person without that person's consent. Do note here, the phrase ‘against a person’ rather than the colloquially accepted ‘against a woman’. This is an important distinction which will be taken up later. Based on this definition however, at first glance it would indeed seem that marital rape is rape as the husband forces his wife to intercourse against her will. Indeed many in our print media have taken a similar stand.
Now, for the record, I do not advocate the use of force by the husband to pressurize the wife to intercourse. However, I ask an open question… Can rape be one sided. Can it be only that the husband can force his wife? What if the wife uses force to beget sex from her husband? Can that not be considered marital rape too? Many would consider this to be neigh impossible but I ask the reader for some forbearance before jumping to this conclusion. All those, especially in the print media, who are strongly advocating that we recognize marital rape and thus make our rape laws up to ‘Western’ standards are forgetting that these very same Western laws are gender neutral. They recognize both female and male rape. So the question of a husband being raped cannot be outright dismissed just because he is male and supposedly only females can be raped. I ask these same newspaper editors who assert that our rape laws be made in tune with Western standards; have any of them read the definition of rape as given in ‘Western’ law. Can they quote any case law promulgated by some court in the US or UK to this effect…? I think not…
Vide gender neutral laws, we are now forced to include in the definition of marital rape, the act of raping of a husband by his wife. You may wonder how this is possible… Is it realistic to imagine a woman forcing a man to sexual intercourse? Now, herein lies the crux of the matter. The words ‘intercourse without the persons consent’ in the definition of rape is generally meant to assume use of physical force and generally by the man. The law, however, does not just recognize physical force but also other forms of force like emotional blackmail vide use of say fear, obligation, guilt, social ostracism, disparaging remarks on the guy’s manhood etc. Can we imagine a scenario in which the husband may go though some form of this force? Let’s do some hypothetical role playing to find out…
Wife: Hey let’s do it…
Husband: Hey, I’m really tired. Had a long day... Maybe some other time…
Wife: Hey I’m really wanting to…
Husband: No dear please try and understand, I’m too tired today and not quite in the mood.
Wife: I can’t believe I am hearing this. Most other men would jump at this chance.
Husband: Dear please… Don’t say such crude things.
Wife: I am saying crude things…? So I am at fault now… Don’t dear me… What’s wrong with you, aren’t you a man? Why did I ever get married to you in the first place I wonder…? What am I to do with an impotent guy like you? You know what; I am going to tell this to the whole world. Really, I am... You should be ashamed of yourself. Which guy has ever refused sex? Are you even a man, I wonder? I am going to tell this to my parents and then I am going to tell this to your parents. Hell, you know what, I hate you… I might as well tell it to everyone, our neighbors, your friends, your colleagues and your Boss even. I am going to humiliate you in front of everybody… You just wait and watch… In fact, I want a divorce. I can’t live like this… Hell you know what, I am going to have an affair with someone just to take revenge on you. I hate you; I hate you; I hate you…
Husband relents and they have sex… Vide the definition of marital rape which alludes to the use of force and not necessarily just physical force; I now pronounce the wife guilty of raping her husband…
One objection from the reader would be that not all wives are like in the above role play. My simple rejoinder would be that not all husbands force their wives either. But if the idea is to make marital rape a crime with the intent of punishing errant husbands, then please also make it a crime when wives do the same keeping in mind that physical force is not the only means to coerce the other partner to sex…
Now consider a happily married couple in a long term marital relationship spanning many years, even decades. Can it not be imagined that sometimes the husband is not in the mood… Can it not be imagined that the wife ‘forces’ her husband by using some or all of the above in varying degrees to persuade him to intercourse. Can it then not be called marital rape too, only in this case it is rape of the husband rather than of the wife...? Shouldn’t rape laws be gender neutral? Further, aren’t gender neutral laws the basis of the right to equality…
What is a marriage, if not some give and take? Sometimes the wife accommodates the husband and sometimes the reverse, assuming realistically that men are not always in the mood either rather than the simplistic portrayal of men being sex starved and ever ready for sex. If a strict definition of rape implies any use of force, then what is inescapably true is that in the course of a marriage, especially one lasting for many-many years, both parties have at some point raped each other. If these be convicted as ‘regular’ rapes then I daresay most married couples will end up being convicted and for those who are advocating the death penalty for said crime, these same married couples will end up being hanged. The Indian family unit will stand voided…
Again, the reader may question my motives... Am I really advocating use of force by either partner in a married relationship to get sex irrespective of whether the opposite partner is willing? Well of course No… But in a long married life, can there be some scenario in which this has happened. No one will admit it, but I’m sure that in their hearts-of-hearts everyone knows the answer… Further, there are many who don’t even want to entertain the possibility of marital rape being rape of a husband by the wife. They cannot imagine a scenario in which the husband would have given in despite not being in the mood. The repercussions for such a one sided stance are dire for men.
To all women who are stuck in this situation wherein the husband is forcing them on a regular basis. Because sex is expected out of marriage, the husband can alternatively accuse the wife of constantly denying sex. In this situation, it is best, rather than going into this whole concept of marital rape, withdraw from the relationship and file for divorce. Let the wife claim mental cruelty rather than marital rape. Your relationship has no future. Quit… Let’s not demean the institution of marriage calling it a license to rape. As an aside, for all those who want to institutionalize marital rape, the other side of the coin is when the wife or let’s just say any one spouse to maintain gender neutrality is constantly denying sex. Take note; this is grounds for divorce too on the basis of mental cruelty.
To all men who fall into two categories, I say this…
In the first category, if sex is being constantly denied quit the relationship and file for divorce on the basis of mental cruelty. The law is clear on this... Sex is expected in a marriage and constant denial of which is grounds for divorce… Do not use force to get sex.
In the second category, those men who have to succumb forcefully into sex at their wives behest, I suggest that they too leave the marriage... Sex is an integral part of marriage and is expected. Rather than accusing your wife of marital rape, file for divorce. Claim mental cruelty rather than marital rape. Quit… Let’s not demean the institution of marriage calling it a license to rape.
Now coming to the part of divorce, what most people have not realized is that the accusation of marital rape can become a tool for blackmail. It could very well be claimed by the wife as part of the divorce petition that the husband was forcing her into sex. Whether this is true will be hard to ascertain as, mind you, hardly any video of the marital bedroom can be shown in a Courtroom. What happens then…? Ominously the Supreme Court has ruled that in cases of rape, credence should be given to the woman’s testimony as the man would deny it and the woman generally won’t lie. This is a reasonable stand to take in a general rape case but when the accusation is of marital rape involved as a part of a divorce petition, it obviously could not hold water as the woman has an ulterior motive to get her husband convicted. The wife will use the threat of the accusation of marital rape to get what she wants in any divorce settlement. Further, imagine the husband being convicted based on accusation alone sans evidence being condemned to prison for a large number of years or for those clamoring for the death penalty, hanged… I say this, be prepared then for mass hangings of husband’s in this country.
This is not as farfetched as it sounds… For e.g., a similar issue already exists with dowry harassment. Again the mere complaint by the wife without any supporting evidence can lead to the arrest of the husband and his parents. So widespread is the abuse of this dowry statute as a tool of blackmail that the Supreme Court has called the misuse of Section 498A, legal terrorism.
I ask this of all, especially our lawmakers and our Judges, has our Justice system become so one sided? That mere accusation can lead a man in jail. What about that most sacrosanct of all concepts of English Common Law, that of presumption of innocence. If the wife is allowed to claim marital rape with scant or no evidence, then, I say, so should the husband. Now imagine the husband doing the same i.e. accusing the wife of rape, again with scant or no evidence. Will the Court now allow the wife to be convicted based merely on the husband’s testimony and consequently sentence her to long periods of imprisonment and if we pander to those clamoring for the death penalty, hanged? Don’t quite see that happening…
Further, a word of warning to those like me (and yes I am well aware of what I can get into) who support such reverse sentencing i.e. punishing the wife in equal measure, beware the wrath of Feminists… You risk being ganged-up upon, scorned and publicly ridiculed. Yet, and this is where it gets really brutal, these same Feminists are demanding, mind you with full conviction, the exact opposite be sanctioned in the name of women’s rights… I ask; whatever happened to the Right of Equality?
So in essence, I conclude that I am dead against codifying of marital rape as actual rape. Let the victim, whether it be the husband or the wife, ask for dissolution of such marriage based on mental cruelty. For proponents who are hell bent on criminalizing marital rape, make it gender neutral; allow the husband to claim duress too… Further, beware of its misuse in divorce petitions as a tool of terror to intimidate, harass, browbeat and falsely convict the man of a most heinous crime thereby running his life, his career, his reputation and making a travesty of the Justice delivery system of our country…
In closing, I say this; Men of the world; rise, object, fight and rebel against this one sided notion of marital rape. If not, I state this with all eloquence it will be you who’ll end up being raped and I don’t just mean sexually but in the broadest meaning of that word…
References:
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About the author:
Karan Doshi, has Bachelors and Masters in Chemical Engineering and along with interests in his core subjects of mathematics and science; he dabbles in religion, law, politics and economics. He firmly believes that the application of rational thought, logic and sound reasoning can result in the best understanding of the subject at hand and in many cases can give a radically different perspective on what is the generally prevailing trend. He is an avid reader and also writes in the Editor's section of various Newspapers in addition to authoring a Blog and having published Books.
karan.genck@gmail.com
amazon.com/author/karandoshi
Editorials:
· K. Doshi, “तेलाच्या किमतींचे गौडबंगाल”, Page 15, Maharashtra Times, 25 Mar 2015
· K. Doshi, “लोकमतला छेद देणारा ‘नकाराधिकार’ कशासाठी?”, Page 7, Sakal, 9 Dec 2015
Books:
K. Doshi, “Land Acquisition in India: Is the farmer wrong...?”, CreateSpace Independent Publishing Platform, 31 Dec 2015, Available: http://www.amazon.com/Land-Acquisition-India-farmer-wrong/dp/1522990607