Introduction
Marital rape is one of the most disgusting and shameful forms of masochism in today’s world. Yet it is hidden under the marriage vows. Many of the victims remain silent instead of raising their voice against the violence; even they don’t tell it to their family and friends because of the fear of social stigma which makes marital rape one of the heinous atrocities against women in our society. When people are raising their voice against vices such as domestic violence as a crime, it is needless to say, marital rape is neither being treated as a rape nor criminalized by the government of our country with the assumption that the husband cannot be guilty of a rape committed by himself upon his lawful wife, and Marital rape exemption clearly constitutes a denial of a married woman’s constitutional right as it violates their right of physical and psychological integrity and equal protection of law enjoyed by the citizens of Bangladesh, solely on the basis of their marital status. Thus, Women are lacking meaningful access to courts and therefore justice.
Once, a skewed notion existed that man and woman become one under the marriage tie and women were being treated as not a human but as personal property of the husband. Thus, it is impossible to rape wife even when sex is done with force and marital rape exemption was permitted. But with the onset of time such notion had started to change in the 20th century and a number of countries have started to criminalize marital rape as a crime. The marital rape exemption in our Penal Code had been inserted by the British colonial rulers, which opened the window of evil turpitude to treat wife as personal property rather than a human being. However, the lawmakers have had chances again and again to amend or outlaw marital rape exemption and enact new provision of laws to prevent marital rape within its ambit according to the present social norms. Yet, surprisingly, this social violence against women within marriage goes unnoticed and unacknowledged by our law makers, and even no mass awareness arises against such a relentless crime which is really inconceivable and extremely frustrating in this era.
What is marital rape?
Marital rape is defined as any unwanted sexual acts by a spouse or ex-spouse, committed without consent and/or against a person’s will, obtained by force, or threat of force, intimidation, or when a person is unable to consent. It is also defined as spousal rape, happened between legally married couple using force and not taking consent of the intimate partner, where the married women are the victim of this crime. According to a number of reports, there are three kinds of marital rape: Battering rape, force only rape and obsessive rape. According to Michele Goodwin, “Incest is the invisible crime. So too was marital rape and sadly in many parts of the world it continues to stigmatize and penalize women. For centuries politicians and judges claimed that marital rape did not exist within law and as a matter of public policy could not occur. That is, it was impossible for a husband to rape his wife under the laws of God and man.” but the cruel and shocking truth is that this social malice is being practiced against thousands of women by their husband around the globe but neatly hidden under the marriage shield. Survivors of wife rape describe a deep personal violation of trust as well as body: “When a stranger does it, he doesn’t know me, I don’t know him. He’s not doing it to me as a person, personally. With your husband, it becomes personal. You say, this man knows me. He knows my feelings. He knows me intimately, and then to do this to me – it’s such a personal abuse.”
Is it a crime?
The function of law is not to protect the matrimonial harmony but to protect the right of the citizens guaranteed in the constitution irrespective of their identity vis. Sex, race, caste and social status. But during 1600s Mathew Hale, Chief Justice in England, in his famous thesis entitled Historia Placitorium Coronea wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” This statement legalized the inhumane torture upon wife and gave mandate to treat the wife as chattel not as wife under the blanket of matrimony. Later on, in England, this implied consent theory was overruled by the historic judgment on R v. R, stating that it cannot be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances.” in England. In the USA, the turning point of criminalizing marital rape was the New York case of People vs. Liberta where it was finally decided that there was no reason for differentiating between marital rape and non-marital rape noting that “a marriage license should not be viewed as a license to forcibly rape the defendant’s wife with impunity”. Moreover, the denial of marital rape constitutes the denial of equal protection of laws as it violates women’s bodily integrity and self-dignity.
Effects of marital rape
Every year a significant number of women are being exposed to marital rape or intimate partner violence. According to the report of WHO, throughout the world 42% of women who have experienced physical or sexual violence at the hands of a partner have experienced injuries as a result. The victims of marital rape experienced physical health, mental or psychological problem and sociological problems in our society. The sexual assaults involved in marital rape also destroy their social confidence:
Physical health problem: the physical injuries of marital rape that are being suffered by women push the women into serious health risk, which are not less than the injury of stranger rape. The physical injury caused by husband in marital rape are being committed by throwing something that could hurt, Pushing, grabbing, shoving , Pulling hair , Slapping and hitting with object, Choking, trying to drown and Beating up, threatening with gun and knife. These surmising result of such heinous activities leave injuries to the vaginal and anal area, Scrapes, cuts, Bruises and soreness , Torn muscles Fatigue Vomiting, Broken bones Injuries caused by weapons, miscarriages or still births, contraction of sexually-transmitted infections, including HIV. The victim faces a lot of gynecological and reproductive health problems the respondents attributed to sexual abuse included anal or vaginal stretching, bladder infections, vaginal bleeding , anal bleeding, leaking of urine, missed menstrual periods, miscarriages and stillbirths, unwanted pregnancies, infertility, and sexually transmitted diseases, , vaginal bleeding or infection, genital irritation, pain during sex, chronic pelvic pain, and urinary tract infections. Besides, spouse rape can also inflict Non communicable Diseases such as cardiovascular disease and hypertension. The most shocking report has been noted by WHO that It’s been found that half of the women had been forced to have sex when they were ill, and almost half were coerced immediately after discharge from hospital, often after childbirth.
Psychological problem
The most pervasive form of mental trauma is marital rape which has very severe and long lasting effects on victim’s existence. Even the negative effect on mental of such spouse rape is more intense than Stanger rape. The psychological problems that generate from marital rape includes Post-Traumatic Stress Disorder PTSD, anxiety depression eating disorders, fundamental loss of trust suicidality In recent years, it has become apparent that much of the battered woman’s syndrome overlaps with Post-Traumatic Stress Disorder (PTSD) symptoms, including difficulties falling or staying asleep, nightmares, flashbacks, increased startle responses, and numbed affect. PTSD “stresses the abnormal nature of the stressor which causes the mental health symptoms, not individual pathology” Yet, in our society the situation is such that we never know the nightmare of marital rape that are perpetrating around almost every day against our woman. At the very least, it brings into question the victim’s ability to trust her spouse, issues of power and dominance, and questions relating to the meaning of marital sex. Furthermore, the victim is likely to continue to face the perpetrator in daily interaction and to be subjected to recurrent, often brutal victimization.
Sociological problem
Marital rape is a part of larger continuum of violence against women and it is the powerful tool used by men to humiliate them, which leaves a lot of sociological impacts on victims’ life. Many victims of marital rape and battering spoke informally of feeling “controlled” by their partners and they never feel close to others. Report found that Women whose partners verbally abused them, were jealous or possessive, or denied them access to family, friends, and these findings suggest that many women in violent relationships are victims of systematic terrorism; that is, they experience multiple forms of abuse and control at the hands of their partners. They become stigmatized and trodden as they remain silent because of their children and lack of proper opportunity of employment. Thus, it lowers the self-esteem of the victims in a society. Most shockingly, the effects of marital rape have influences on the children and family too. The family environment in which wife rape occurs thus becomes increasingly one of inequality, fear, constant threat, and a sense of loss of loving relationships.Besides, divorce is on the rise as woman has no option without it if she doesn’t want to live together again with her rapist husband.
Present scenario of marital rape laws in Bangladesh
The marital rape is the most underreported crime in our country. The laws that were laid down by the British colonials are still subsisting in our country as these arbitrary laws are neither amended nor outlawed by the lawmakers. The provision for rape case are laid down in the section no. 375 of the penal code, 1860, which describes five scenarios under which a person’s act will be deemed as rape. This section clearly states that “sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape”. on the other hand Section 4 of the of the Child Marriage Restraint Act provides that: “Whoever, being a male above twenty-one years of age, or being a female above eighteen years of age, contracts a child marriage shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand Taka, or with both.” Hence, such provision in 156 year old penal code is really confusing and frustrating when the legal age of marriage for girl is minimum 18 years. When marrying a girl under 18 years of age is illegal and is a criminal offence, it is beyond possibility to rape a wife under thirteen years age. Thus, the present situation presents a scenario where marital rape is not been recognized at all. However, The legal age of marriage for girls changes with the flow of time but the protection systems in penal code that are badly needed to protect them remains archaic, static, arbitrary and brutal for years after years. Again, Regardless of age and marital relation rape is rape, when it is forced and without consent. Yet, it is a shame to say that the punishment is so minimum and low.
Section 376 of penal code which describes punishment for rape also creates confusion as to the inconsistency relating to the age of wife. It provides that, “Whoever commits rape shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” again there is inconsistency as to the precise age a wife must be for marital rape to be punishable since the exemption clause in section 375 sets it at under thirteen years but Section 376 states it to be under twelve years. Apart from The Penal Code the most surprising fact is that both Nari O Shishu Nirjatan Domon Ain, 2000 and even The Family Violence (Defense and Protection) Act,2010 are also silent about marital rape . Thus, our laws push the married women to live a hollow life like a walking dead in a “living hell” and shut the door to get access to court under the shield of wedlock. According to Robin West, The martial exemption, in brief, is simply the most brutal of all possible expression of the social inclination to trivialize women’s interest in physical and sexual security.
Problems and lackings
Research found that during the year 2000-2013, 81.6% married women in Bangladesh have experienced psychological violence by their husband And Yet they can’t express their forced sex experience for a number of reasons, which have universally remained the same. The first and foremost reason is that marital rape has yet to criminalize in our country and the existing laws to protect violence against women do not serve the purpose. Secondly, most of the women are uneducated and have lacking in knowledge and awareness which is why they believe that sex is totally a taboo in our society and embarrassing to discuss with family and friends. Therefore, marital rape is a bedroom talk which is totally self-prohibited topic to discuss. As a result, they are bearing the undeserving cruelty against their mental and physical health. Thirdly, the economic condition of women in our society is very much lower than the male as they remain unemployed. Hence, they have lower self- esteem as they remain dependent upon their husband’s earning. A report of HRW suggest that women endured sexual violence because they were unable to escape, felt acute financial pressure to remain in their homes, or were under threat of greater harm if they did report. Fourthly, in a male dominating society like ours, a lot of women still have a very ill belief that once they are married to their husband they have no right to refuse against their husband’s will and start to believe that they have no right to exercise control over her body and they remain quiet about the abuse and assault involved in such crime.
Besides, there is no task force to prevent and to monitoring marital rape in our country. According to WHO, Addressing intimate partner violence requires a range of approaches, including awareness-raising, education, prevention activities, provision of necessary health, legal and social services, shelters and counseling and improved follow-up on reported cases so that Women are free from physical injury and fear. However, there has been serious lacking in those preventive and protective measures against intimate partner violence in our country to provide comprehensive care facilities to women experiencing abuse. In fact, Violence against women also incurs significant economic costs, both direct and indirect. Direct costs include those associated with the police, hospital and other health services, legal costs, and costs associated with housing, social and support services. Although as a developing nation, it will take time to create all the facilities to satisfy the urgent need. Most of all, there is a serious lack of social awareness about marital rape in our country which ultimately forced women to believe them that it is not a crime against them but a right of husband which must be tolerated by not raising their voice against it. Consequently, most of the crimes have gone unreported. According to the report of Rupprecht, the main reasons are Shame and embarrassment, fear of being blamed, fear of not being believed, distrust of the police/courts/legal process, fear of family and friends knowing/public disclosure/stigma, fear of retaliation/further attacks, as well as uncertainty on whether a crime has been committed.
