17 April, 2024


Marital Blitz & On The Subject Of Marriage As A License To Rape

By Ruwan Laknath Jayakody –

Ruwan Jayakody

The business of marriage is marketed as an earthly paradise akin to heaven. Yet, trouble is never too far away. Entering through the Venetian blinds of the boudoirs of the citizens of the land confined within the gilded cage of wedlock, one glimpses in these theaters of cruelty, the kinky politics of sexual propriety and the dark fantasia of patriarchy at play. It is a Grand Guignol saga of bottles shoved up vaginas, extreme gonzo pornography, Viagra, young lust and carnal impulses, Lady Godiva, the Madonna-whore complex, the Stockholm syndrome and morbid jealousy. So, as the German taskmaster Friedrich Nietzsche would have it, bring out the whips as there are those shades of grey within the institution of contractual marriage, the eternal rectitude of Sodom and the ‘till death do us part’ oblation to sanctimony. 

The private purgatory of marital rape therefore requires that it be criminalized and recognized as an offense. 

Leading women’s rights organization, Women in Need (WIN), through Attorney-At-Law (AAL) at WIN, Dilrukshi De Alwis confirmed to the author back in late November, 2014, that out of the number of daily walk-ins (180 victims) to their nine crisis centres located island-wide (20 victims per crisis centre), 45 victims (five victims per each crisis centre) were due to marital rape, which incidentally according to the then Secretary to the Ministry of Child Development and Women’s Affairs, Eric W.F. Illayapparachchi, who spoke to the author, was a “common matter,” and about which as the then Secretary to the Ministry of Justice, Kamalini De Silva, speaking to the author, put it, “the Justice Ministry was really not looking at, as there was no serious lobby for it.”

Marital rape, also known as spousal rape and rape in marriage, is non-consensual sex (rape) in which the perpetrator is the victim’s spouse.

“Clearly, sexual intercourse can only be considered as consensual only if consent is asked, obtained and given. In law, there is nothing called passive consent. Merely because a woman entered into the bonds of matrimony does not mean that it takes away her rights and the need to obtain consent during intercourse. The consent or complete voluntariness of the body and mind of both the parties is necessary. The very idea of intercourse, a deeply intimate act done without the consent of both partners, is an act of violence that is a violation of the rights of choice and self-determination guaranteed by the charter – the Universal Declaration of Human Rights. Permission should be asked and articulated verbally. It cannot be inferred and assumed. Canadian Supreme Court (SC) Judge, Justice Claire L’Heureux-Dubé’s position in R vs. Ewanchuk (The Queen v. Steve Brian Ewanchuk [1999] 1 S.C.R. 330 – in a concurrence joined by Justice Charles Doherty Gonthier) is a case in point. At the point of penetrative sex, was consent given? Consent during pre-coitus or foreplay does not count,” former Court of Appeal President and SC Judge, Justice Shiranee Tilakawardane said while speaking to the author.

She added that violence is the manifestation of discrimination and inequality where one party abuses their power and dominates the other, physically, emotionally, economically and mentally. Such acts are violative of the individual’s own guaranteed rights and freedoms. 

“The law in Sri Lanka evolved from the Roman Dutch Law which considered women as mere chattel, possessions and property with no rights to freedom and relegated to mere vessels, in particular of women in the bonds of marriage, as objects to be used and discarded. Today, the scope and ambit of rape, referring to intercourse without consent or through coercion (not consensual), is one that is punishable by the law,” she noted. 

WIN elaborated that while marital rape as a population demographic is seen across all strata including in the lower middle class, it is however most prevalent among those who get married just out of their teens, of the ages between 18 and 20 years and below 25 years. Such marriages experience turbulence by the time the individuals are 29 or 30-years-old as the relationships are more physical than intellectual, De Alwis explained.

“At this stage, extra-marital relationships also occur. As a result of the forced, unwelcome sexual torture and molestations which violate their personal bodily integrity, women as a result may become nymphomaniacs, develop depression, suffer from psychotic breaks and show symptoms of the battered women syndrome,” she remarked.

Women interviewed in a survey on rape published in 1985 (Ask Any Woman: A London [England] Inquiry into Rape and Sexual Assault by Ruth E. Hall which is the report of the Women’s Safety Survey conducted by Women Against Rape), ‘made it clear that rape by the husband is just as painful and traumatic as rape by strangers, in some ways worse.’

De Alwis opined that men think that it is their right and therefore disregard consent, a point on which at the time 24-year-old Colombo based office worker who was married, Dushmantha (name changed to protect identity), concurred with. “Permission has already been obtained when the person signed their name on the dotted line of the marriage certificate,” he said. 

WIN cites access to hardcore pornography, sexual stimulants and sex enhancing drugs, sexual torture, morbid jealousy and men getting their wives to dress up scantily to titillate as reasons for marital rape, which is also one of the many forms in which domestic violence manifests itself. 

Marital rape centers round age old traditions and customs of marriage and a restricted understanding of female sexuality. 

To quote the House of Lords in R vs. R [1992] 1 A.C. 599, a landmark decision by Lord Henry Shanks Keith (joined by Lords, Chief Justice Geoffrey Dawson Lane, Henry Vivian Brandon, William Hugh Griffiths, Desmond James Conrad Ackner and Robert Lynd Erskine Lowry) recognizing marital rape as a criminal offence in England and Wales, ”the status of married women has changed. Marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband. One proposition involves that by marriage, a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times, any reasonable person must regard that conception as quite unacceptable.”

Still however, many countries such as Sri Lanka and neighbouring India have not criminalized marital rape (the Indian SC however in X vs. The Principal Secretary of the Health and Family Welfare Department of the Government of New Capital Territory of Delhi and Another [Civil Appeal 5802/2022], in a watershed verdict by Justice Dr. Dhananjaya Yashwant Chandrachud which was joined by Justices Ajjikuttira Somaiah Bopanna and Jamshed Burjor Pardiwala, recognized marital rape only for the purposes of abortion) although Asian countries such as Nepal, Malaysia and Thailand have done so.

Section 363 of the Penal Code states that a man is said to commit rape where sexual intercourse takes place without the consent of the woman even when such a woman is his wife and (emphasis by the author) she is judicially separated from the man (emphasis on “and”). The Sri Lankan jurisdiction does not recognize the crime of marital rape, a condition reflective of a primitive law making process in terms of the Legislature/the Parliament and the Executive on issues pertaining to women.

The Prevention of Domestic Violence Act, No. 34 of 2005 as amended (PDVA) allows victims of domestic violence to request a protective order through the Police from a Magistrate’s Court which would limit contact between the perpetrator (arrested initially by the Police) and the victim. The PDVA defines “domestic violence” as including, among others, all offences contained in Chapter XVI of the Penal Code which deals with offences affecting the human body and life, and which are included in Schedule One of the PDVA. 

In what amounts to completing the circle of confusion and utter disregard for the victim of marital rape, one is led again to the fact or rather to Section 363 of the Penal Code, that rape, in the context of the married woman, is recognized only if it occurs subsequent to judicial separation ordered by a court of the husband and wife.

Thus, in Sri Lanka, the term ‘domestic violence’ at least legally, does not acknowledge that a woman can be raped within the confines of marriage. ‘Rape’ – being when a man (husband) has sexual intercourse with a woman (wife) without her consent, or when her consent has been obtained by the use of force or intimidation or by threat of detention or by putting her in fear of death or hurt, or with her consent when her consent has been obtained at a time when she was of unsound mind or was in a state of intoxication induced by alcohol or drugs administered by the man, as per Section 363 of the Penal Code.  One should also be aware that ‘rape’ need not be accompanied by physical violence to prove that it is a ‘rape’ although such violence is of importance in terms of evidentiary value.

Accordingly, what the PDVA purports to do is obscure the ‘rape’ of a married woman by her husband and bring such an act under the general header of domestic violence, which in turn does not accord the victim any remedy unless a physical assault (as opposed to mere ‘rape’ devoid of physical injuries) can be proved.

In essence, as De Silva reminds us, what there is, is a limited, qualified, marital rape.

“This is a policy issue. In 1995, when the Government under a previous regime originally wanted to bring about new provisions and reforms with regard to criminalizing marital rape in the Parliament, it was not approved as the move was not favoured by the Members of Parliament. They were not happy,” De Silva explained.

She however added that the Ministry of Justice at the time was looking into many and various other issues and would possibly take a look again at marital rape when the time was appropriate.

It is the Ministry of Child Development and Women’s Affairs and the Law Commission who should and might be looking at the policy and the law with regard to this specific matter, she emphasized.

Whilst stating that it is the Ministry of Justice that is responsible for formulating the law and the policy and the legal amendments pertaining to criminalizing marital rape, Illayapparachchi reiterated that it is imperative that such laws and Acts be passed without disturbing the family unit. 

“On many forums, we discuss this matter frequently. In 2015, we received additional funds to tackle gender based violence, especially domestic violence. We had a special force, which is the National Committee on Women which looks at policy while through the Women’s Bureau, we conduct awareness generating campaigns for both men and women regarding marital rape,” he added.

Handling written submissions made in the Northern Province (in the Districts of Jaffna, Mullaitivu and Vavuniya) as part of the island-wide Commission on the Prevention of  Violence against Women and Girls of the then Opposition Leader and incumbent United National Party Leader and President Ranil Wickremesinghe, which concluded its activities in 2013 (the report was due in 2014), the then Chief Executive Officer of the Viluthu organization, Shanthi A. Satchithanandam, speaking to the author, added that although incidents of rape in general and at the hands of the Armed Forces were reported, marital rape was not recognized or viewed as rape. 

Satchithanandam said that there would be heavy opposition if one started to raise awareness about the issue.

“It is so sensitive that one would be accused of interfering in family relationships (husband and wife) and attempting to break-up families. Men think that women are not amenable to the desires of man but that women must give in and satisfy them properly. The man is excused for forcing as he allegedly has the right to demand. The culture always sees this as the fault of the women and therefore that women had what was coming to them,” she remarked.

Anthropologist attached at the time to the Family Planning Association, Madusha Dissanayake, speaking to the author, observed that in order to get at the complexities of marital rape, it is first required that one accepts rape as a crime and sees past its myths like the one where only ‘bad’ women get raped.

Take language for an instance, where we say that a girl is given in marriage pretty much as a dowry but we do not say that a boy is given in marriage. Why? She queried.

“These depend on the societal and cultural perspectives we abide by regarding what constitutes a marriage. Why do people get together and marry? Women give in, thinking that it is for the best. Sexuality within the marriage including gratification and satisfaction should be discussed divorced from the concept of reproduction. These are relationships and partnerships with someone one knows based on respect and understanding. The need and necessity for comprehensive knowledge about sexual and reproductive health, though essential, is at a minimum,” Dissanayake observed.

There is a huge communication gap within many of the relationships, she added.

“The husband’s family and the woman’s own family do not aid her in such situations and tend to pretend as if such incidents never in fact occurred. They follow the Buddhist teaching of not taking internal conflicts outside while the surrounding community which could and should come to the aid of the woman practices its’ very opposite. Children are stigmatized. Such women do not have a fallback strategy or access to information regarding what is happening to them. Some come to accept this as their karma, fate and lot. The media through tele-dramas also portray a dreamy fairytale version of marriage as one where the princess and prince charming live happily ever after. There is peer pressure about sex and wildly unrealistic expectations of feminine beauty as epitomized by Bollywood starlets being seen as the ideal,” De Alwis observed.

Having personal and professional economic power and engaging in skills’ development programmes is necessary as women give up work when they marry, she emphasized, adding that one must not lose one’s identity.  

Sometimes, when couples experience marital rape, they think that having a child would be the remedy for the situation, De Alwis explained.

“In such cases, the husband is no longer a friend but a total control freak, yet the woman falls for this, thinking that he is asking her to behave this way for her own good and benefit as she is still head over heels about him,” she added. 

Apart from obtaining protection orders and providing temporary shelter to victims who cannot go home, WIN offers psychological counseling, and provides legal advice to women on what options they have.

The Police always take the stance of mediating family disputes by equating them to mere domestic squabbles and this is a hindrance, De Alwis remonstrated, adding also that judges in lower courts too, more often than not, opt for the option of settling the matter.

Acting Police Media Spokesman and Assistant Superintendent of Police at the time (incumbent Senior Superintendent of Police), and AAL Ruwan Gunasekera agreed that the Police would initially attempt to mediate on matters of family disputes when a spouse makes a complaint, adding also that in the case where both the parties involved in the dispute turn up at the Police station and agree to settle the matter, the Police would not, in such cases, pursue the matter in courts.

Police Children’s and Women’s Desks in 335 Divisional Secretariats have five field officers each including Women Development officers and Child Rights officers and the operation is coordinated in a holistic manner with the Ministry of Child Development and Women’s Affairs, he added.

“If it’s battery, we treat it as a crime,” Gunasekera noted. 

Justice Tilakawardane noted that the Police are still not sufficiently educated or aware about the matter. 

“Because court visits are mandatory when a protection order is obtained under the PDVA, the husband stops raping her. As long as marital rape is not reported, it continues. The domestic violence protection order takes about one to two weeks to come through and is not effective as an immediate measure which is in place to address the problem. Couples get easily distracted with one night stands in certain cases and therefore do not work on the marriage, thereby also jeopardizing children. Bottles containing alcohol, and other equipment too are inserted into the female genitalia and there was a case at the Castle Street Hospital for Women (Teaching) where a doctor lambasted an expectant mother for having sex with many men when in reality her insides had been torn apart due to forceful insertions,” De Alwis further elaborated.

It is reported by those who spoke with the author that many such sexual problems are also seen in the Muslim community too whose matrimonial affairs are governed by the Muslim Marriage and Divorce Act, No. 13 of 1951 as amended, which incidentally also provides for child marriages, and exemptions for statutory rape. 

“When subjected to coercion or intimidation, women become passive due to fear and shame. In such situations, women become completely inarticulate in how they react. It has much to do with their upbringing. Parents bring up girls a certain way to behave modestly. Their very upbringing goes against them. The victim, not the perpetrator, is traumatized, stigmatized, marginalized and ostracized. These are attitudes of power. It is not just a family domestic problem. Erroneous ideals, values and attitudes contribute to this. Women are neither inferior nor superior to men. There is the obnoxious idea that sex is the entitlement of male privilege, one which has been fashioned through archaic notions of culture, tradition and ideologies based on patriarchy. It is not to be accepted or tolerated,” Justice Tilakawardane reiterated.

For American rocker Pat Benatar, “love is a battlefield”. 

Marriage is a conflict. Rape is a vow.  

*The author acknowledges major contributions made to this article by a lawyer [who cannot be named for professional reasons] and another journalist

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