Marriage is no license to rape

Published On: March 25, 2021 09:00 AM NPT By: Roshani Giri

Sexual violence by intimate partner is largely unreported due to social stigma as well as the belief that forced sexual relation by a husband without the consent of the wife doesn’t constitute violence.

The issue of marital rape is a new and to a great extent sill undigested concept in a patriarchal society like Nepal where marriage is seen as a prerogative to have sexual intercourse with one’s wife, with or without consent. The landmark decision of the Supreme Court recognized that the element of consent is not waived by marriage and that any non-consensual sexual relationship amounts to rape. The Criminal Code criminalized marital rape for the first time in Nepal. However, the lack of subsequent state policies to raise awareness and implement the law has made this provision invisible in real sense.

Though criminalization of marital rape is a milestone, the reluctance in social acceptance of existence of marital rape and elimination of the notion that marriage is a license to have physical relationship is vividly reflected in Section 219 (4) of the Code. While a rape of an adult woman is punishable by an imprisonment of 7 to 10 years, the rape of a woman within marriage is punishable by an imprisonment of up to 5 years only. This disparity in punishment and relief to the victim (based on relationship to the perpetrator) leading to a scenario where rape victims are ‘not equal’ is a violation of Nepal’s own Constitution as well as international obligations of non-discrimination on the basis of marital status.

The Convention of Elimination of all forms of Discrimination against Women (CEDAW) requires a state party to modify social and cultural patterns to modify customs based on the ideas of inferiority or superiority of either of the sexes or gender-based stereotypes. Contrary to this obligation, Section 219 rather reinforces the male superiority in a marital relationship pushing a woman to a lower status once she gets married. The disparity, to some degree, gives an image of marriage as waiver of consent of a woman, justifying lesser punishment for an act committed by her husband as against the punishment if the perpetrator was someone outside the marriage. It reflects the historical perception of male control over his wife—sexual and otherwise—as an entitlement of marriage. It also manifests the mistaken idea that past or ongoing sexual relationship with the perpetrator makes the marital rape less grave.

Suffering in silence

The gravity of rape and its trauma does not decrease because a woman is married to the perpetrator. As a matter of fact, living with the perpetrator as a wife when there come instances of forced sexual relationship is no less traumatizing or harmful to the victim. On top of it, because of the unequal gender relation (reinforced by law) and the concept of sanctity of marriage, a victim of marital rape is very less likely to bring a charge against her husband, or even talk about the violence they suffered with other people, especially because of the difficulty in proving the allegation, social stigma and acceptance by the woman that physical relationship is indeed an entitlement of the man that comes with marriage.

“Any sexual act, or attempt…using coercion, by any person regardless of their relationship to the victim” is sexual violence. But law, after all, is a reflection of the society and Nepali law of marital rape exactly depicts the social perception of ‘in a marriage there can be no rape’. In addition to the legal barrier of statutory limitation of one year, social stigma, lack of understanding of the importance of consent in any physical relation and the very endorsement by law that rape is less of a crime when committed by one’s husband deters women to speak of their ordeal, and criminal charge is a far cry.

In Nepal, sexual violence by intimate partner, including marital rape, may be occurring but is largely unreported due to social stigma of discussing one’s sex life as well as the uninformed belief (on the part of both spouses) that forced sexual relation by a husband without the consent of the wife doesn’t constitute violence/rape. So, even where a woman is subjected to forced sexual relationship with her husband, to reiterate, the social belief of sexual relationship in a marriage as a claim and a special dispensation from the domain of rape prevents the understanding of being a victim (for the woman) as well as being the perpetrator (for the man). So the lack of legal literacy and information that marital rape is a crime (again because talking about sex is a taboo and a private affair between a married couple) is not only causing rape within marriage to occur without the knowledge of both the husband and/or wife, but also preventing the victims from seeking justice and deter the perpetrators. As a result, intimate partner violence (including rape) is accepted, and some forms of violence are not even considered a violation of rights of the woman in Nepal.

Marital rape is a traumatizing as well as tricky form of violence against woman because of the difficulty in establishing the ‘lack of consent’ in that particular instance. Though a consent under fear, threat, coercion, is not a valid consent under Nepali law, in a typical Nepali marital relation, women are under a constant pressure of consenting to sexual demands of her husband because a ‘no’ to husband’s sexual demands might mean that she is having an affair with other men, which will in turn sabotage the marriage or subject the woman to other forms of physical violence.

The social stigma and the hassle of proving that a woman was raped by her husband results in women simply applying for divorce citing they do not want to live with their husbands rather than filing a criminal charge of marital rape. It takes several rounds of counselling for them to even acknowledge that they had been subjected to forced sexual relation by the husbands, let alone convincing them to bring a charge. As a matter of fact, it is at times more difficult for incidents of marital rape to surface than other instances of rape because everyone knows that rape is a crime and can be prosecuted. So, as a result, the crimes of marital rape happen but go unpunished in the face of justice.

No impunity

The current definition of torture, in international as well as Nepali laws, doesn’t include marital rape or domestic violence due to the private status of the perpetrator. It is not my argument that the definition should be read to include marital rape or other forms of domestic violence against women. However, it is indispensable to ensure that there is no difference in treatment or relief to the victims of rapes irrespective of their marital status and the relation with the perpetrator. Marriage should not be a special dispensation for impunity or lesser punishment in rape.

Often times women are subjected to physical violence from the people they know rather than total strangers. So marital rape as a form of domestic violence as well as a separate crime deserve more recognition and seriousness from the legal as well as social lens. It is as much heinous as other forms of rapes and thus requires better social understanding, and positive steps from the state, legal as well as policy and resources, to make more efforts to prevent such acts from happening, create a conducive environment for women to speak, and more effective legal response, when such acts do happen.

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