Sexual Violence Within Marriage
At the outset, violence against women has been recognized as an act against public health and a blatant violation of women’s basic human rights. The concept of marital rape has been rather difficult to comprehend not only for policymakers, but also for the public at large. Going a step further, explicitly speaking about sexual violence by a partner is challenging across the diverse culture around the globe. Despite the widespread rise of #MeToo movement globally, the concept of marital rape and violence against women continues to be a complex conundrum. It has been a topic of heated discussion over the last few years.
What is considered Marital Rape?
The institution of marriage is regarded as a sacred act by many countries and forms the basis for acknowledgment of sexual relationships between individuals who have consented to the same. However, sexual violence and physical aggression within marriages for a long time persisted to be a grey legal area in many jurisdictions. Sexual violence within marriage is common and manifests in various forms, including marital rape.
Marital rape is understood to occur when a person commits a sexual act without the consent of their spouse or does so against their will. Marital rape can be defined as “Any act of unwanted intercourse or sexual penetration that occurs with force, threats, or due to the victim’s incapacitation (such as being asleep or intoxicated).”
Is Marital Rape an offence in the UK?
Marital rape is regarded as a separate crime from the offence of sexual assault that occurs outside of a marriage. Marital rape is regarded as an offence in almost 50 states, one of them being United Kingdom (UK).
Marital rape is considered to be a punishable offence under the Sexual Offences Act 2003 in the UK. Albeit, prior to 1992, the legal landscape as regards marital rape was not the same. A forced sexual activity within a marriage was not considered an offence. Instead, it was understood to be a form of enforcement of conjugal rights by the husband. Additionally, the wife was understood to have consented to the said enforcement through her consenting to the contract of marriage. It was in the case of R v R, wherein the House of Lords in 1991 was pleased to cover under its ambit the possibility of a man to rape his wife. It was while passing the judgement in this case, the Court shed light on the importance of consent even within a marriage.
Further, in order to be able to prove that the said act was in reality a marital rape, the party has to prove certain acts have taken place and that the said acts have not been consensual. It is pertinent to note here that a woman cannot be charged with the act of commission of marital rape, as the specifics of the act would not fall with the corners of marital rape. Although that act would fall within the category of sexual assault and not one constituting a marital rape.
The punishment for a person found guilty of marital rape is likely to between 4 and 14 years imprisonment depending upon the minute details of the case, in addition to any other mitigating or aggravating factors being taken into consideration. In the UK, the maximum sentence for marital rape can be that of life imprisonment.
Coming to the approach taken by other countries around the globe, Poland was the first country to criminalize marital rape in clear terms as far back as in the year 1932, while Australia was the first common law country to criminalize the act of marital rape. In the United States, all of its 50 states have passed reforms recognizing the act of marital rape as an offence.
On the one hand, there exists countries wherein spousal rape has been expressly regarded by law to be an offence and on the other hand, several countries have legislations in force that do not go to cover the concept of marital rape. India is one of those countries which is still struggling to criminalize the act of marital rape. Going a step further, such countries consider sex within marriage to be consensual by its very definition and they do not view the act as punishable or as a criminal offence.
A study conducted by Basile stated 80% women feel that their husbands use some form of “force” to have sex, but the women are reluctant to disclose this. Similarly, the act of marital rape not being considered to be “real rape”, can therefore stay hidden from coming under the purview of legal provisions, despite of adverse physical and mental health consequences.
It would not be wrong to say that the unprecedented COVID-19 pandemic saw a rise in such marital violence and shed light on how rampant the act had become and how it needed more attention and addressing.
How can Marital Rape be addressed?
Having said thus, the concept of marital rape can get slightly ambiguous when there arises a difficulty to define aspects such as consent between people or more particularly spouses who are presumed to be in a consensual relationship, especially sexual. The concept of consent has not been receiving much attention and importance in marriage, until recently. A few policymakers also expressed their fear regarding marital rape being used by women as a mechanism for harassing their husbands.
Against the backdrop of everything put forth above, the influencing factors revolving around the concept of marital rape continue to be grey legal areas, some based on social myths on marriage and sexuality, misinterpretation of certain ideologies and more particularly lack of research in this area. There has arisen a need to set an example as to how serious marital rape as an act can be by enforcing stringent laws against the act. Hence, it is now unto the legislature and the judiciary to take the requisite actions to effectively address this concern.
Support for Marital Rape victims
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