Sushama (not her real name) is a fiery lawyer. She speaks her mind and fights her way through courts and police stations, rarely taking no for an answer. But only a few trusted friends know that she is fighting a losing battle with her husband — in bed.
“If he does not want me to do something — that can include studying or cooking — he insists that I sleep with him. He abuses me or accuses me of sleeping with another man if I am tired and show reluctance,” she says. “It is rape.”
If Sushama were to muster courage and march her husband to court, she could run into another losing battle if the Criminal Law (Amendment) Ordinance, 2013, which seeks to convert rape into sexual assault and make it a gender neutral crime, receives Parliament’s nod.
The controversial ordinance which was supposed to have served as a balm for women victims of rape and sexual abuse has shown a jagged edge. Right now, a man cannot be accused of marital rape unless his wife is below 15. But marital rape is a serious issue that needs to be seen as a criminal act, activists stress.
The activists point out that if a woman can be raped by her spouse, who is not punishable by law, there is little likelihood that she will be safe in public. That is one reason why marital rape is seen as a crime in most parts of the world. By omitting marital rape from its list of sexual crimes, India has put itself in a dubious group that includes Saudi Arabia, Tajikistan, Yemen and the Democratic Republic of Congo.
The activists believe that marital rape should not be seen as a “gender-neutral” law, which is what the government has been envisaging. “Women could become vulnerable to harassment and be slapped with false cases,” says Rohini Hensman, a writer and an activist in Mumbai.
The elements of gender neutrality in sexual assault appear to have been lifted verbatim from the recommendation of the 172nd Law Commission report in 2000, which emerged from a Supreme Court writ filed by the women’s rights group, Sakshi, seeking to delete the exception to marital rape. The Law Commission, however, rejected this petition stating that it could lead to “excessive interference” with the marital relationship, but recommended that rape be turned into a gender neutral offence instead.
But many disagree. “Sexual assault is not just a gender crime but a power-based crime,” argues Albertina Almeida, a lawyer and human rights activist in Goa. “Patriarchy is still alive and kicking. And even if a woman does sexually assault a man, she will be shamed beyond compare, while a male assaulter will not be stigmatised.”
Indeed, instances of women sexually assaulting men are hard to come by. “In the last 20 years I have come across only one or two men who have approached us with complaints of sexual assault,” says Harish Sadani of the organisation Men Against Violence and Abuse.
On the other hand, sexual assaults against women — including in marriage — is a common global phenomenon. In 2011, Unifem, the UN’s women’s wing, presented an 86-country study that found 70 per cent of women experiencing physical or sexual violence by men — the majority of whom were husbands, intimate partners or those they knew. In India 7.2 per cent of women admitted to experiencing sexual violence in the year preceding the study and 10 per cent, over a lifetime. Those experiencing physical assault coupled with sexual violence were much higher — 23.9 per cent over the past year and 37.2 per cent over a lifetime.
According to India’s third National Health and Family Survey of 2005-06, 62 per cent of women revealed experiencing physical or sexual violence within the first two years of marriage, and another 32 per cent in the first five years.
In India, only on a few rare occasions have husbands found themselves in jail for marital rape. Last October, Poona Suneja, an additional sessions judge in Punjab, sentenced a priest of the Rambag temple in Ambala to a year in jail for not only forcing himself on his wife, but also threatening to kill her.
“Magistrates and lawyers are insensitive and even make private jokes about sexual issues in their clients’ marriages,” says Jaya Menon, a lawyer and an activist in Mumbai.
Often enough, silence is taken as consent, as even the Supreme Court was wont to do in the case of Mathura, a 16-year-old girl raped by policemen in the early Seventies in Maharashtra. It was not a case of rape because she had raised no alarm and bore no visible marks of injury on her body, the court had said. But if the ordinance does turn into law, a victim will no longer have to provide proof of penetration.
Women activities, however, see that as a positive development, though the issue of marital rape continues to trouble them. Only last December, Delhi district judge J.R. Aryan let Hazi Ahmed Saeed off charges of forcing his wife into sex, as the IPC did not recognise marital rape. Sex with a legally wedded wife, even against her wishes, could not be considered rape, the judge concluded.
“In India, women don’t have any decision-making power or control in the home, so intimate sexual abuse in marriage is difficult for them to fight,” says Menon. “When they discuss their marital grievances, they cite marital rape as an additional problem and not ‘the’ problem.”
Sangeeta Punekar, a child and women’s rights activist in Mumbai, points out that victims of physical abuse talk about their husband beating, biting or burning their breasts with cigarette butts, but won’t talk about being raped by them. “They have been conditioned to think that they are their husband’s property,” she adds.
Clearly, the law has to help women speak up against their spouses. And once they are safe in their homes, they will be able to fight for security in public as well, the activists conclude.