MARITAL RAPE
in Bangladesh: An appraisal

Written by:

progga taposhi

owner

Bhuiya legal solution and associates,

Shahabag,Dhaka.

Introduction:

“When it is the person you have entrusted your life to who rapes you, it isn’t just physical or sexual assault; it is a betrayal of the very core of your marriage, of your person; of your trust. ……………………………………………………………

Spousal violence against women is a serious public health issue. Bangladesh is one of the poorest countries in the world and its estimated prevalence rate of violence against women is extremely high which, in turn, is an obstacle to the achievement of equality, development and peace” [Johnson et al., 2008, p. 16] Due to a lack of reliable base-line surveys, the exact number of women affected by violence is unknown {CEDAW/C/BGD/Q/7}

All rape turns on the issue of consent. Regardless of the relationship between rapist and victim, rape occurs,, when one person forces another person to have sex.
Marital rape refers to To the rape Of one spouse by the other

The belated elimination of antiquated marital rape exceptions is a product of the persistence of traditional views of marital relationships and sexism.

Marriage, marital rape and our society:

Marriage:

Marriage is a state of being united to a person of the opposite sex as a husband or a wife in a consensual and contractual relationship recognized by law.

The Oxford Dictionary definition of marriage is, ..The legally or formally recognized union of two people as partners in a personal relationship.’’

Marital rape:

Marital rape is 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.

Or marital rape or spousal rape is the act of sexual intercourse with one’s spouse, without the spouse’s consent.

Any nonconsensual sexual intercourse

Between non-spouses.

Rape

Unwanted sexual acts.

Marital rape

As Oxford living dictionary describes marital rape, it simply and in very plain language means, “rape committed by a person to whom the victim is married”.

This definition given by the Oxford dictionary leaves no stones unturned regarding the marital rape being a rape, which happens behind those closed doors in the name of a sacred institution of marriage; still, Bangladesh legislature is sitting quietly on this matter, taking credit for making laws for women safety and talking about women empowerment.

Nevertheless, this conservative Bangladeshi

Society, which has compelled a woman to think that she is not only a second class citizen but also a second class gender, is one of the biggest reasons for this high tolerance level of women.

This makes it evident that the thinking or the mentality and the approach needed to bring a change in the society is clearly lacking, both in the part of the victims and the rest of the society. People are not ready to accept that marital rape is to a rape and fear that it may hamper the position of men as against women.

Simply put, all rape turns on the issue of consent. Regardless of the relationship between rapist and victim, rape occurs when one person forces another person to have sex. “Marital rape” refers to the rape of one spouse by the other. The frequency of marital rape is statistically significant: Studies have shown that between 10% and 15% of women have been raped by their husbands. Despite these numbers, husbands historically have not been prosecuted for marital rape,

The belated elimination of antiquated marital rape exceptions is a product of the persistence of traditional views of marital relationships and sexism

Historic View

While it has generally been illegal at all times for a man to force sex upon a woman other than his wife, a husband could force sex upon his wife without violating the law until very recently. The justifications for this marital rape exception were-

the British common law view that the contract of marriage includes the husband’s “right to sex”—the wife having given consent for all time by entering the contract,
the traditional view of wives as the property of their husbands with which they could do as they pleased under common law, and
The public interest in promoting privacy and harmony in marital relationships, which discouraged the state from interfering in the relationships;
An 1857 case in Massachusetts was the first in the U.S. to recognize the “contract” justification for the marital defense to rape. The “right” of a husband to sex with his wife also provided a husband with grounds for divorce if his wife refused sex.
This defense became part of the rape laws in every state. The third justification posed the greatest hurdle to rescinding the marital rape exception, but the fundamental incoherence of the justification has undercut its sway.
As the Supreme Court of Virginia has noted- it is “hard to imagine how charging a husband with the violent crime of rape can be more disruptive than the violent act itself.” (Weishaupt v. Commonwealth, 315 S.E.2^nd 847 (Va. 1984).)

Modern View:

The historic justifications for the marital rape exception have been largely discarded. However, there are several other justifications more recently proposed by those who continued to support the exception, including:

Marital rape did not happen often enough to merit rescinding the exception. This is a patently unsupportable point, given the percentage of wives who have experienced the crime,
The lack of a wife’s consent is too hard to prove because the spouses would have had consensual sex numerous times.
Other laws, such as assault and battery, provide a raped wife with avenues for recourse that are less fraught than bringing rape charges against her husband.
A husband should be able to have sex with his wife without fear of prosecution (which sounds a lot like the historic “husband’s right to sex” justification), and
Protecting the husband from false accusations of rape (for example, during divorce proceedings).

The one characteristic that all five of these justifications share is sexism, because all of them turn on a disbelief or discounting of the wife’s side of the equation and a promotion of the husband’s side over hers. In that sense: the “modern” justifications for a marital rape exception sound a lot like the historic justifications and are equally flawed.

Just as damning, the marital rape is exceptions gave fewer legal protections to women who were married to their assailants than to women who were raped by strangers, for no valid reason.

Marital rape is also rape:

The ancient patriarchs who came together to write their early covenants had used the rape of a woman to forge their male power- how then could they see rape as a crime of man against a woman.

Before commenting on the fact that marital rape is no less than a rape, first understand what a rape means according to Penal Law of Bangladesh.

To make out the offence of rape defined under Section 375 of the Penal Code, rape must either be

against her will, or
Without her consent.

Rape defined under Section 375 of the Penal Code,

The courts have clarified that these are two separate tracks to proving rape: ‘against her will’ means the woman has resisted and there was opposition while ‘without her consent’ would comprehend an act of reason accompanied by deliberation

The marital rape exemption was inserted by British colonial rulers when they enacted the Penal Code in 1860, and it illustrates the nineteenth century mindset of English lawmakers. As Sherri Davis explains in Marital Rape: The Legislative Battle, the matrimonial consent theory was justified by the English common law assumptions that upon marriage, a wife became the property of her husband or that the spouses became one entity. Legally, then, a husband could not be guilty of assaulting or raping his own chattel, and in the latter case, the “one entity” principle made it impossible to charge a husband with rape.

The legality of marital rape finally came under scrutiny in the mid-twentieth century and England itself outlawed marital rape as late as 1991, in the case of R v R, while the British- mandated marital rape exemption still remains in force in Bangladesh. Interestingly, the original age stipulated in the Penal Code’s marital rape exemption clause has been amended time and time again by local lawmakers post-independence, presumably in accordance with changing social norms.

This gives us a clear picture of the instances which can come under the definition of rape and should be punished under Section 376 of PC.

Wherever there is a lack of will or consent by the female partner under any kind of sexual intimacy, it will be called rape and thus calls for punishment.

The wedlock is considered as the dead-end of a woman’s consent and will. Marriage, as per a Bangladesh’s context tends to mean surrendering yourself whenever the husband asks for any sort of sexual favors.

A man’s life is incomplete without marriage, and he completes himself by taking up a woman as his better half. Most basic function of marriage was to perform religious duties and both the counterparts were placed on equal footing.

There has been a paradigm shift in the true essence of marriage in recent days. It is becoming more of a sex-based institution from a religious-based institution with a predominance of men.

The situation of women is still deteriorating in Bangladeshi society and the elite class is still silent on the topic concerning the infringement of basic right of a woman.

The following are the three kinds of marital, generally prevalent in society;

Battering rape:	In this type of marital rape, women experience both physical and sexual violence in the relationship and in many ways
Force only rape	In this type of marital rape, husbands use only that amount of force, as it is necessary to coerce their wives.
Obsessive rape	In obsessive rape, assaults involve brutal torture and/or perverse sexual acts and are most commonly violent in form

Looking into the definitions we can easily find out that each and every definition consists of words like –

force,
assaults,
physical violence,
And each characterizes the absence of intention.

Provided with these many clues, any layman can say that these words when connected with sex are no less than rape.

When it is too clear and transparent that the wife is subjected to force in order to surrender herself and give up on her will and consent than there should be no problem with those sitting on helm enacting a law which makes this forced intercourse, taking away the bodily autonomy from a woman and abridging her will and consent, a punishable offence.

If we go by the basic definition of rape and consider the case of marital rape at the same time, there lies no scope of sidelining the latter from the ambit of the former.

In cases of marital rape, no one but the woman, the victim knows whether it was a rape or not, and thus it is necessary to get this offence registered as rape.

Recent status of Bangladesh:

The current law forced sexual intercourse by a man with his own wife, if the wife is not under 13 years of age, is not rape.

Nurnahar told her family she was crippled with pain when her 34-year-old husband consummated their marriage. However, it continued for a month as her husband had no regard for his child bride’s pain and suffering.
The 14-year-old died from excessive bleeding from her genitals within about a month of her marriage in Tangail as the husband reportedly continued sexual intercourse.
There are many girls like Nurnahar who need to be protected from marital rape but the existing law is not really useful. Human rights activists think the societal norm is also too rigid to accept that a man cannot force sex on his wife as they see marriage as a license to have sexual intercourse.
Sixteen-year-old Dola Akter Reba, general secretary of the National Child Forum of World Vision Bangladesh, spoke about how difficult it is to educate people about marital rape.
“Most of the time, in rural areas, when we campaign among communities and try to educate parents about how marital rape can harm the body and mind, they don’t want to hear this from us. According to them, after marriage, everything is legal between husband and wife. Those who are educated sometimes get convinced, but those who are not educated or follow the religions blindly don’t pay heed to us, and we face more challenges,” said Dola.
A new report published jointly last month by Girls Not Brides Bangladesh and Plan International explored the legal loopholes making it difficult to protect child brides from rape.
“This is contradictory to Bangladesh’s international commitment to protect the girl child from sexual exploitation, particularly its obligations to ensure the best interest of the child under the UN Child Rights Convention. Such a provision also encourages the culture of forced marriage of a child rape victim with her perpetrator in order that the perpetrator can get away with the crime easily,” said the report.

The report points out that the law does not require obtaining the consent of a minor in an application for child marriage under the “special provision”

There are special provisions in the act that allow for underage marriage, there is no special provision that allows for the dissolution of underage marriage.

The United Nations released a report, titled “Child Marriage in Humanitarian Settings in South Asia: Study Results from Bangladesh and Nepal”, where child marriage was termed -a fundamental violation of human rights.

About 59 – of women aged 20-24 in Bangladesh were married under the age of 18, said Jean Gough, regional director, Unief South Asia, and Björn Andersson[regional director]UNFPA Asia-Pacific, in their jointly written foreword, According to Unicef data from 2017, [22 percent were married before the age of 15].

Bangladesh’s own statistics also paint a similar picture; a multiple Indicator Cluster Survey of Bangladesh Bureau of Statistics done in 2019 shows the child marriage rate stood at 51 percent.

On November 1; a writ was filed before the High Court Division of the Supreme Court of Bangladesh challenging the legality of marital rape of women and girls aged above 13 in the rape legislation.

Human rights activists think it; is a step forward toward protecting women from marital rape.

Bangladesh Legal Aid and Services Trust (BLAST), Brac, Naripokkho, and Manusher Jonno Foundation, four member organizations of the Rape Law Reform Coalition, filed the writ petition.

Laws of the country:

The marital rape exception clause in section 375 of the Penal Code 1860 sexual intercourse by a man with his own wife; if the wife is not under 13 years of age, is not rape.

This exception is also related provisions on rape like as- Section 376 of the Code and the explanation to Section 9(1) of the Nari o Shishu Nirjaton Domon Ain 2000.

Section 19 of the Child Marriage Restraint Act, which states- if a marriage is solemnized in such a manner and under such special circumstances as may be prescribed by rules in the best interests of the minor, at the directions of the court and with consent of the parents or the guardian of the minor, as the case may be, it shall not be deemed to be an offence under this act.
During October this year, Dhaka Tribune conducted a survey on sexual violence against women and found 66% of the participants said rapes are acceptable in a marriage.
Taqbir Huda, research specialist at BLAST, told Dhaka Tribune: “Society at large refuses to accept that marital rape exists, since we are trapped in the archaic notion that a wife, upon signing the marriage contract, perpetually and irrevocably consents to sexual intercourse with her husband whenever he so demands”
Furthermore, victims of marital rape never report their crime; since the marital rape of women and girls above the age of 13 is totally excluded from the offence of rape in this country.
The only reason we came to know about Nurnahar’s horrific case is because she died as a result of the marital rape, said Taqbir
In order to convince the court that marital rape exists, the member organizations of the Rape Law Reform Coalition had to cite the National Violence against Women Survey 2015.. Which found that 27.3% of women who ever got married reported facing sexual violence from their husbands (including forceful sexual intercourse) alongside news reports about Nurnahar’s case.
Taqbir says Dhaka Tribune- “A complete prohibition on marital rape is long overdue, and we hope as a result of this writ, the government will rise to the occasion and repeal the marital rape exception clause, which is colonial and entirely unconstitutional”
Contracting or facilitating a child marriage is a criminal offence in Bangladesh and those involved will be punished but the validity of the marriage is not affected.
Therefore-a minor wife above the age of 13 cannot file a rape case against her husband.

The Penal Code 1860 was enacted by British rule which exempted marital rape, but, England itself outlawed marital rape in 1991.

Pakistan, the country which inherited the same penal code, does not have the marital exemption clause today.

Sexual violence by husbands:

Physical violence is well-documented in Bangladesh, a very few studies have investigated sexual violence.
The WHO study of 2001 found that 37% of women in the urban study site and 50% of women in the rural study site reported having been sexually violated by their husbands at some point in the past and 20% of urban and 24% of rural Bangladeshi women reported having been sexually violated by their husbands in the previous year. There is a significant overlap between women who have experienced physical violence and sexual violence: 48% of rural women, and 41% of urban women who ever-experienced partner violence reported having experienced both.
No legislation criminalizes sexual violence within marriage in Bangladesh, and forced sex, or rape, within marriage is prevalent, particularly among the very young couples.
Twenty-four percent of urban women and 30% of rural women reported that their first sexual experience was forced.
Women aged less than 15 years at the time of first sexual encounter were more than twice as likely to have forced first sex compared to women who were aged over 18 years at first sexual encounter .

Emotional abuse by husbands:

Physical and sexual violence are more readily quantifiable than emotional abus, results of qualitative research demonstrated that emotionally-abusive acts might be more devastating than physically-abusive acts.

The issue of emotional abuse is complex, and data are scarce. In Bangladesh, 44% of urban women and 31% of rural women in 2001 reported ever having experienced emotional abuse—defined as those including insults, humiliation, intimidation, and threats-and 29% of urban women and 20% of rural women reported experiencing emotional abuse in the past year.
Data collected in Jessore and Sirajganj, in 1993, showed higher rates of verbal emotional abuse, with 79% of currently-married women in one rural area and 89% in another rural area reporting ever having experienced verbal abuse and Again, these differences in levels of abuse might be attributable to methodological differences and sociocultural variations among the study sites.

Association between spousal violence and physical and mental health:

Spousal violence yields not only the direct health impacts of injury and mortality, but also contributes to the burden of disease by indirectly impacting other health outcomes;
In Bangladesh, women with a lifetime experience of physical or sexual violence or both by their husbands were significantly more likely to report poor or very poor health (adjusted odds ratio [AOR] 1.7; 95% confidence interval; 1.2-2.2 for urban women and AOR 1.4; 95% CI 1.0-1.8 for rural women) and to report problems with walking or carrying out daily activities, pain; memory loss, dizziness, vaginal discharge.

Abused women have a diminished ability to care for themselves and their children.

Results of one analysis showed that consumption of food supplements provided by the National Nutrition Programed was less for pregnant women who experienced physical violence during pregnancy.
Results of another study showed that physical abuse of a mother was associated with lower quality of maternal infant feeding interaction, overtly negative maternal behaviors, and lack of interaction from the infant’s side.
Women with more than two years of education had an increased risk of under-five deaths of their female offspring if ever exposed to severe physical violence (adjusted hazard ratio 2.2, 95% CI 1.06-4.50) or to a high level of controlling behavior in marriage (adjusted hazard ratio 2.5, 95% CI 1.30-4.90)

Marital Rape Exceptions

The women’s movement of the 1970’s led to changes in the law. In 1976, Nebraska became the first state to throw out its marital rape exception law and Seventeen years later, all 52 states had revoked their marital rape exceptions. But, while many states have revised their rape laws to draw no distinction between marital and non-marital rape, some states persist in distinguishing in certain ways between marital and non-marital rape.

According to the UN Women’s 2011 report; 52 countries had amended their legislation to explicitly establish marital rape as a criminal offence.

Only about half of the states have totally abolished the distinction between marital and non-marital rape. Twenty of the states that have kept the distinction grant immunity to a husband who has sex with his wife while she is unconscious or otherwise incapable of giving consent. In the states whose laws have maintained the distinction between marital and non-marital rape, the prosecution is confronted with elevated levels of proof built into these laws.

The situation in Bangladesh can be contrasted with that of Pakistan which, despite inheriting the same Penal Code from the British Raj, does not have the marital exemption clause today. The Protection of Women Act 2006 attempted to repeal anti-women rape laws and amend the infamous Hudood Ordinance by reintroducing the rape laws from our commonly inherited colonial Penal Code.

While reinserting section 375, the Pakistan Parliament quite simply removed the exemption clause from it, thereby relinquishing the legal safeguard that was enjoyed by husbands who raped their wives. Such an erasure would also be advisable and quite achievable in the case of Bangladesh. Unfortunately, there is nothing to suggest that any such reform is even remotely on the horizon, which is precisely why we need to start a discussion and engage in dialogue.

Suggestions and conclusion:

No justification for any state to maintain rape laws that distinguish between spouses and other victims of rape. Rape is a crime of violence and the fact that the perpetrator and the victim are married should have no more weight than it does when a husband beats his wife; Simply bringing the marital rape laws into line with domestic violence laws would improve the situation for spouse-victims in the states where the marital rape distinction persists.

We need to acknowledge that- the reluctance in our country to criminalize marital rape is rooted in the medieval notion that upon signing the marriage contract, a wife perpetually and irrevocably consents to sexual intercourse her husband whenever he so demands. It’s reflective of our society’s wider perceptions on the subjugated role of the wife within the institution of marriage and the sexist power dynamics patriarchal cultures seek to preserve.
We need to realize how marital rape has the potential to be even more traumatic and scarring for a victim than rape by a stranger; indeed, this was poignantly highlighted by Dr David Finkelhor in his testimony supporting the criminalization of marital rape: When you are raped by a stranger you have to live with a frightening memory. When you are raped by your husband, you have to live with your rapist.
Thus the need of the hour is to criminalize this evil present in the society. And Enough of talking raising voice against it, uniting as women leaving behind the identity of mother or sister and a strict law is all that needed to curb out marital rape.
The women who will have to come forward joining hands with each other and fight for their rights; Forced marital sex should be brought within the ambit of rape under Section 375 of PC.
A marital or other relationship between the perpetrator and the victim should not be taken as a valid defense nor should it be regarded as a mitigating factor justifying a lower sentence of rape.

Nevertheless, society needs to discuss this problem and they need to, teach and support their daughters to raise a voice when she feels suppressed. There must be enough awareness so that neither poverty nor illiteracy becomes an obstacle in the path of criminalizing this anti-ethical practice.