Often being wrongly viewed and interpreted as a spontaneous outcome of passion, or worse as love, rape is yet another expression of dominance over a woman by a man. Despite the notion of being a sacred bond, this act of dominance is nonetheless seen within wedlock as well, which is known as marital rape, or spousal rape. Identified as a form of domestic violence and sexual abuse, marital rape is defined as the act of sexual intercourse by one spouse without the consent of the other. Although it once was an act which the lawmakers were also reluctant to criminalize and accept openly as a crime against the human body and dignity, many countries have now taken steps to criminalize enforced sexual intercourse by the husband on the wife.
Not only the legal attitude, but also the social attitude on this was that it was taboo to even openly talk about what happens on the nuptial bed. It was considered to be personal and accepted in societies, until that mindset was repudiated by both international and domestic laws and legal protection was given to abused wives. Rape is no trivial crime by any standard of law or morality, and now it is a universally accepted notion that this does not exempt a husband from being convicted for raping his own wife.
The Criminal Law
The Penal Code of Sri Lanka enacted as Ordinance No. 02 of 1883 contains the country’s most significant laws in convictions and punishments. The punishment for the offence of committing rape is stated in Section 364 of the Code. The punishment, if found guilty after being proven beyond reasonable doubt, shall be rigorous imprisonment of not less than seven years and not more than 20 years and the perpetrator will also be fined. If the perpetrator happens to be a public officer on duty or a member of the management or staff of a remand home or hospital, the punishment cannot be less than 10 years. If the victim of rape is a woman who is pregnant, below 18 years of age, mentally or physically disabled or a victim of gang rape, the punishment is also between 10 years and 20 years together with a fine. In addition, the perpetrators will also have to compensate for the injuries suffered.
However, marital rape is not a crime in Sri Lanka unless a judge has ordered a spousal separation, i.e., a judicial separation. Thus, in cases of marital rape, the perpetrator can be brought to trial only if he is judicially separated from his wife. But the main concern is that there is no tradition of legal separation in Sri Lankan society. Women live separately from their abusive husbands, most of the time hiding under the parents’ protection, and only seek the aid of law enforcement authorities when they want to obtain a divorce.
The Prevention of Domestic Violence Act
The Prevention of Domestic Violence Act No. 34 of 2005 (PDVA) does shed some light on providing protection towards women who are abused by their husbands. The PDVA allows victims of domestic violence, which includes victims of rape and sexual assault to request a protective order from a Magistrate’s Court that would limit contact between the perpetrator and the victim. But, the fact of the matter is that these cases are not filed as ‘marital rape’ cases and are dealt with as domestic violence issues that can be settled between the parties with a panacea such as counselling.
What lies within
In the Sri Lankan context, the reality is that sex in itself is a taboo subject and rape within a marriage is regarded as a domestic or private matter in the legal system. The victimized woman takes her cue from the legal and social climate and opts to suffer in silence. A variety of reasons prevent such women from addressing this issue - social stigma, fear, shame, community and family disapproval, fear of losing children, negative attitudes and possible harassment at the hands of the police.
The ideal position taken by our judiciary is also that the law does not accord a derogatory status to the wife as her husband’s slave and only requires her to comply with her husband’s reasonable requests and demands. But, it is sad to see that our men have a tendency to justify whatever action taken by them to be reasonable within the realm of patriarchy. Wives and daughters are not to question any move taken by the husband or the father, which the women should be submissive to.
Even the end of elongated discourses in National Law reform forums have resulted in Sri Lankan law makers deciding that marital rape itself should not be criminalized in Sri Lanka. The reason for this is highly backed up by social and cultural issues mentioned above. A woman who would walk into a police station of a majority of male officers would not be able to properly mention her situation and file an entry. She would be constantly advised on how to be a good wife and to go back home to the husband and her in-laws.
The same picture will be painted in the court rooms. The mental agony a rape victim has to go through during recurring cross examination sessions in courts is unexplainable. A woman being forced to give evidence on how she was raped by her husband will be exposed to numerous discomfort, by male attorneys in the court room. Thus, given the status quo, it was in a way, a mindful decision for women not to make marital rape an offence.
Understanding the reality
It is understood by many feminists and legal scholars that the concept of marital rape, as now understood and accepted internationally, cannot be suitably applied, especially, within the Asian context, due to various factors such as, the level of education or literacy rate, poverty, myriad social customs and values, religious beliefs, the mindset of society to treat marriage as a sacrament. The notion of patriarchy and submission has been inculcated in the mindset of the people, that they themselves are unable to liberate their own conscience from it. It is sad to see that among those who consider a wife to be a husband’s property, are not only men, but also a number of women.
What should be realized is the fact that passive giving in is not the same as giving consent for intercourse. When a woman feels that it’s just easier to give in to sex than to respect her own needs and submits herself, she is being raped. Consent can be direct or indirect, but letting the husband dominate over the wife’s body does not mean she has consented indirectly.
Being married does not make any domestic abuse acceptable. Wives do not belong to their husbands. Sex is not a ‘Right’ that is inevitably given to a man with a marriage certificate. It is not a wife’s duty. A woman does not give up her right to say yes or no the day she gets married. Sexual intercourse should be based on respect, equality, consent, caring, and most importantly, on clear communication.
Marriage and its sanctity should indeed be respected and protected. But it is high time to rethink whether it is the correct decision taken by us as a civilized society to turn a blind eye towards women who suffer and let men say ‘She’s my wife’ as a defence. It should be realized that it is a change of attitudes along with the initiation of positive perspectives that our society is in need of, for the initiation of which, we should all strive together as a nation with strong morals.