Wednesday, 2 February 2022

Marital Rape

 Marital Rape

Is a victim's husband's violation of her sexual autonomy qualitatively different enough from a stranger's violation to justify a different label or punishment?

There is one case where a man has no right to ask at all for sex since they are not in a marriage, but another case where he has a right sanctified with marital bond between them, he can expect reasonable sexual relations with partner…we are not recognising the difference if we are saying that they are at par.”

“If the legislature has thought that where parties are married and the only grievance of lady is that she was not willing, if the legislature felt such a case should not be categorised as rape, is it something which is so unconstitutional.”

These are the remarks made by Justice Shankar in the marital rape exception hearings. 

In their comments, senior advocates Rebecca John and Rajshekhar Rao asserted that the right to sexual autonomy must take precedence over this 'reasonable expectation,' whether or not it is a legal right. Justice Shankar appears to agree with this; nevertheless, he has emphasised that his remarks do not imply that non-consensual sex within marriage should be legal. Nonetheless, he maintains that the qualitative difference between a marriage and non-marital relationship cannot be "closed out."

To further comprehend where Justice Shankar's views appear to differ, it may be necessary to reduce the scope of his investigation. Assume that the absolute essence of a woman's sexual autonomy and her freedom to say "no" is shared ground between the Bar and the Bench in this case (as it should be). Given this, Justice Shankar appears to be pondering whether the legitimate expectations in a marriage make what is unquestionably a breach of sexual autonomy a less serious or distinct violation than one committed outside of marriage. Is it unlawful to punish some infractions of absolute autonomy as something other than 'rape' as long as the law acknowledges autonomy as an absolute right; perhaps as the law does now, where a wife that has been sexually assaulted by her husband can still resort to filing a case for cruelty?

To summarise, is a victim's husband's violation of her sexual autonomy qualitatively different enough from a stranger's violation to justify a different label or punishment? Although the victim has an absolute right to say no, may we treat these two violations of that absolute right differently? This is a fundamentally equal-treatment issue under Article 14.

To begin, we must recognise that treating different abuses of sexual autonomy differently is not prima facie unlawful. Sexual harassment, rape, and aggravated rape, for example, are all breaches of sexual liberty that are labelled and punished differently. This differentiated approach is consistent with our view of sexual autonomy and does not diminish its absolute character in any way. In law, different degrees of infractions of the same fundamental right are permitted.

What is essential, however, is that the constitutional basis for this differential treatment be solid - that this differentiation be understandable, have a legitimate goal, and have a plausible relationship with the achievement of that goal. All three of these requirements must be fulfilled. Let us demonstrate by example – the differing treatment of sexual harassment, rape, and aggravated rape is comprehensible since all three offences consist of different acts, has the legitimate aim at punishing more serious violations more seriously, and reasonably fulfils that aim by putting in place a higher punishment for aggravated rape than for rape.

The question therefore becomes whether the exception for marital rape can bear this scrutiny. Depending on whether the exception is construed widely or narrowly, the 'goal' is either to safeguard the sanctity of the institution of marriage in general or to protect those marriages where rape has happened. Now, clearly, the latter cannot be the goal, as it is both an unconstitutional goal for a constitutional state to pursue and incompatible with other state laws that allow for divorce based on proof of cruelty, including sexual assault.

It could be worthwhile to dig deeper into the first goal. What is the state attempting to defend the sanctity of the marital institution from? Because the same conduct within a marriage might be punished as 'cruelty,' it is not a general statute. Thus, the state plainly views rape, and its presence inside marriage, as a particularly desecrating occurrence – and strives to safeguard the institution's reputation (rather than specific marriages) by creating a legal fiction that erases rape from marriage. How can you safeguard an institution against the heinous reality of rape? You simply reject it in the eyes of the state.

The state, in doing so, is unaware that it is making a critical error: continuing to erase rape in marriages from the statute books, despite the fact that it continues to occur in the lived experience of victims every day, does not sanctify, but rather desecrates the institution of marriage. The right of a married woman who has been raped to brand her husband a rapist is taken away from her, and the husband is given a pass. This does not protect the sanctity of marriage; it desacralizes it. The marital rape exception has no rational connection to the preservation of marriage's sanctity; rather, it damages it by forever connecting marriage with the clandestine perpetuation of sexual violence.

As a result, the marital rape exception either has no legitimate goal or has no logical connection to accomplishing a valid goal. In either case, treating married and unmarried rape victims differently is discriminatory and unconstitutional.

There is no discernible difference between married and unmarried victims, contrary to the high court's questions. The exception for marital rape must be eliminated.

By-Shagun Mahendroo

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