by Nomad
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After a judge in India decided that rape laws could not be applied to married
couples, it was easy in the West to sneer at the utter backward-ness of the
world's largest democracy. Clearly women are still treated as second class
citizens.. there.
Yet how much difference is there between Indian laws and laws in the US
regarding spousal rape? The answers might surprise you.
In India, issues related to rape have in the last few years been, for the first
time a matter of public discussion. In a sign- perhaps- of a flourishing
democracy, ideas on this subject are evolving at a rapid pace. Yet, in some
respects, public attitudes might seem hopeless trapped in the past.
For example, the question of recognizing rape within the bounds of marriage,
marital rape or spousal
rape, is still a thorny one in India. The
syndicated news story below provides us with an example.
Marital rape is officially legal in India
A judge in India has officially confirmed that rape laws do not apply to married couples — once you’re legally wed, forced sex is no longer a crime.
What’s especially chilling is that the judge, Virender Bhat, was hearing a case in which a woman alleged she had been drugged, then forced to marry, and then raped — in other words, she hadn’t consented to the marriage or the sex. Bhat said there was no evidence that the accuser had been drugged, but he also said that if the woman’s husband (identified only as Vikash) had forced himself on her, that wouldn’t qualify as rape under Indian law....
This isn’t the first time marital rape has been an issue in India. Recently, after a student was raped and murdered in Delhi, a committee headed by former Indian Supreme Court chief justice J.S. Verma made a number of recommendations for improving India’s rape laws, including doing away with the marital rape exemption. According to the Verma Committee’s report:
Under the Indian Penal Code sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.
The country strengthened its sexual assault laws based on the committee’s recommendations, but the marital rape law remained unchanged — and this new ruling just reconfirms it.
This story- replete with the colorful images of India- made a few waves on the vast Internet sea. But it was really only half of the story.
Before we get on a high horse and "tsk, tsk" at that backward India, it is important to add a little perspective. India is not any
more backward in this respect than the 38 other countries where marital rape is
not recognized as a crime. This includes nations like Nigeria, Kuwait, Singapore, Uganda, Mongolia, Iran, China and Saudi Arabia. From Afghanistan to Zambia, the laws, in effect, do not allow wives to refuse their husbands' demands for sex.
Here's something else you might find surprising.
Marital
rape was criminalized in the United States only around the mid- 1970s. Before
that it was a gray area of the law. In fact, the United States was the first
nation to make spousal rape a crime. Even then, it took until 1993, for all 50 states to make laws against marital rape. In that year, North Carolina became the last state to remove the spousal exemption for rape.
And, shockingly perhaps, there is still no uniform legal
code for marital rape for all states. Each state has its own definition what it means and how it should be punished.
Today states like Ohio, Idaho, Connecticut, Virginia, Oklahoma, Nevada, Maryland, Mississippi, Rhode Island, Minnesota, Michigan, Iowa and especially South Carolina still treat spousal rape as a conditional type of rape.
Today states like Ohio, Idaho, Connecticut, Virginia, Oklahoma, Nevada, Maryland, Mississippi, Rhode Island, Minnesota, Michigan, Iowa and especially South Carolina still treat spousal rape as a conditional type of rape.
When Marriage Means Unconditional Consent
Generally speaking in these states, non-consent is simply not enough; there has to be some form or threat of violence involved.
The laws in South Carolina are particularly offensive to victims.
Generally speaking in these states, non-consent is simply not enough; there has to be some form or threat of violence involved.
For example, up until 2005, the law in Tennessee stated that a person could be found guilty of the rape of a spouse only if that person was "was armed with a weapon or any article used or fashioned in a manner to lead the alleged victim to reasonably believe it to be a weapon" or "caused serious bodily injury to the alleged victim". The law was finally repealed, it's true, but the bill to repeal had to be introduced more than ten times before it was passed.
The laws in South Carolina are particularly offensive to victims.
In that state, not only is marital rape punished less severely and the victims have only 30 days to report, but the law also requires a higher level of violence to be used.
One observer notes that in South Carolina, the legal system divides rapes into three "degrees" based on the amount of violence used.
First degree rape involves a high level of violence, called “aggravated” force — the kind of violence that could cause serious injury or death, including use of or threat with a deadly weapon. This carries a 30-year maximum sentence. Second degree rape is threatening to use aggravated force, which carries a maximum 20-year sentence. Finally, third degree rape is (non-aggravated) force or threat of force used to accomplish sex against the will of the victim. Third degree rape carries a maximum sentence of 10 years.
So far, there's nothing too extraordinary in this. Reprehensible, perhaps, but not extraordinary. However, not content to leave bad enough alone, the
state legislature, according to the source, added some fine print to the laws. According
to the relevant statutes (16-3-615; and
16-3-651 through 16-3-654; and 16-3-658) found at the official website, rape "is
only punishable if the level of violence rises to first or second degree rape."
What about third degree rape? Isn't this still rape- a forceful, sexual assault against the will of the victim..
What about third degree rape? Isn't this still rape- a forceful, sexual assault against the will of the victim..
Third degree rape is not a crime when spouses are involved. Let me repeat that. Under current South Carolina law, a husband’s third degree rape of his wife is not rape.
The Strange Paradox
The most important question
is, of course, why isn't marital rape considered a true criminal act like any
other rape? Why, if rape is a crime, should marriage be considered an
extenuating circumstance at all?
The answers are simple.
Depressingly simple.
One reason was that a wife was considered the property of the husband, allowing him to do whatever he wished with his “property.”
Much in the same way as black slaves in South Carolina were once considered not quite humans, but very much property. (if nothing else, this shows that there really is a link between racism and sexism.)
The other major justification for marital rape was the idea that by agreeing to marriage, a wife gave consent to sex on demand; even when she actually said “no.”
So when a young bride in Spartanburg says "I do" she is actually saying, at least in terms of sex with her new husband, "I will because I must."
Interestingly, one site on South Carolina marital rape laws gives this information:
Consent should never be assumed, even in the context of a marital relationship. An individual must have consent from his or her spouse in order to engage in sexual activity with him or her. If a person is convicted of spousal sexual battery, he or she may spend up to 10 years in prison.
The last sentence is deceptive.
According to information found at another site on the South Carolina laws, the law entitled as "Spousal sexual battery" reads like this:
(A) Sexual battery, as defined in Section 16-3-651(h), when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature, by one spouse against the other spouse if they are living together, constitutes the felony of spousal sexual battery and, upon conviction, a person must be imprisoned not more than ten years.
So, apparently violence has to be a factor, whether there is consent or not. Without actual violence or the threat of it, the law does not recognize marital rape.
Imagine the scenario of a mother telling her daughter that she always has the right to refuse sexual advances from a man, that she should never feel pressured to have sex until she is absolutely ready. She has the right, her mother would say, to give or withhold her consent at her discretion. It is, after all, her body.
That is all true, right up until the precise moment when she marries a man. Then she gives up all right to say no and all control of her body.
(The question is why any woman would ever marry under South Carolina law.)
(The question is why any woman would ever marry under South Carolina law.)
That strange paradox can play out the same way whether the two women are in far away India or.. on the other side of the planet, in the great state of South Carolina.
