MARITAL RAPE AND CRIMINALIZATION OF SEXUAL ASSAULT WITHIN MARRIAGE
**Author:- Nadipudi Jayavanth, a Student of NMIMS School of Law, Bengaluru
Marriage is frequently regarded as a sacred institution in which two people pledge to sharing their lives, duties, and passions. However, the assumption that marriage confers implicit, eternal consent to sexual conduct is outmoded and destructive. The act of sexual assault within a marriage, known as marital rape, is a serious violation of a person's autonomy and dignity. While laws around the world have developed to address this issue, broad criminalization and societal awareness remain critical. In this essay, we will look at the notion of marital rape, its legal position, and its consequences, as well as pertinent case law.
In general, marital rape can be defined as non-consensual sexual intercourse or sexual actions perpetrated by one spouse against the other within the framework of a legally recognised marriage. It happens when one partner coerces or intimidates the other into engaging in sexual activity without their consent. Regardless of the connection between the parties involved, the absence of permission is the basic factor that distinguishes any form of sexual assault.
Historical Perspective
For decades, many legal systems around the world accepted the notion of "marital exemption," which shielded husbands from prosecution if they sexually assaulted their wives. This regressive view maintained the notion that a woman's consent to sexual activity was implied by marriage, denying her autonomy over her own body. However, over time, public attitudes and legal opinions have developed. The criminalization of marital rape has gained traction, albeit at differing rates in different nations. A greater awareness of the necessity of consent and a dedication to gender equality are driving the shift towards criminalization.
Case laws on Criminalization of Marital Rape
R v. R (1991) UK: The House of Lords of the United Kingdom ruled in this landmark decision that a husband might be convicted of raping his wife. The decision overturned the marital exemption theory, establishing that consent within a marriage was no different than consent outside of it. This decision was a key step towards criminalising marital rape and establishing legal precedent for other jurisdictions.
State v. Maharaj (2005) South Africa: South Africa has been a pioneer in combating gender-based violence. The South African Constitutional Court held in this case that the statutory rape exemption, which permitted husbands to have extramarital sex with their wives, was unconstitutional. The decision upheld women's right to bodily integrity inside marriage.
Independent Thought v. Union of India (2017): India has also made strides in making marital rape a criminal offence. Although marital rape is not currently a crime in India, the Independent Thought case was a big step forward. The Supreme Court of India declared that sexual intercourse with a minor wife is rape, emphasising the necessity of consent even within a marital relationship.
Despite advances, there are still obstacles to the outlawing of marital rape. Attempts to solve this issue are frequently hampered by cultural conventions, traditional beliefs, and societal expectations. Some argue that criminalising marital rape will result in false charges and will destroy the institution of marriage. These issues, however, should not take precedence over individuals' fundamental rights to consent and bodily autonomy.
Ultimately, cultures must abandon obsolete beliefs and prioritise the rights and autonomy of individuals within marriage. To reflect this dedication to justice and equality, legal systems must evolve. The struggle against marital rape is a moral and societal necessity that will define our commitment to human rights and gender equality in the twenty-first century.
REFERENCES:
https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1484&context=vjtl
https://vawnet.org/material/marital-rape-new-research-and-directions
https://academic.oup.com/book/35181/chapter-abstract/299501649?redirectedFrom=fulltext&login=false
https://brooklynworks.brooklaw.edu/bjil/vol41/iss1/3/
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