For better or for worse, for richer, for poorer, until death parts us…
(Image Credits: Rutuja Patil/Arré)
Marital rape is criminalised through the legislation of 42% of states (77 out of 185). In 111 countries, it is not explicitly outlawed. What is not explicitly outlawed is impliedly taken as a green light to commit sexual violence. Out of 108 countries, 74 of them have provisions allowing women to file a complaint against their husbands for rape. This means that 34 countries (out of 185) do not provide any such provision for women to file a complaint nor is marital rape criminalised. In 19 countries across the world, women are still expected to obey their husbands and 12 countries still have clauses which exempt rapists from prosecution when they are married to or if they subsequently marry their victims.
Let’s travel a bit, shall we?
Marital rape of a woman or girl by her husband is expressly legal in 10 out of 82 jurisdictions, namely in Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania. Four of these jurisdictions expressly allow marital rape even in the circumstances where the wife, who is raped, is a child bride and the marriage has been conducted in violation of the minimum age of marriage laws.
In at least 9 out of 82 jurisdictions, it is legal for someone who has raped or sexually assaulted a woman to escape punishment if he marries the victim. These are Bahrain, Iraq, Jordan, Kuwait, Lebanon, Palestine, Philippines, Tajikistan and Tunisia. This is also legally possible in Greece, Russia, Serbia and Thailand where the couple engaged in sexual intercourse but the girl is deemed too young under the law to have consented to it. Similarly, in circumstances where there has been sexual intercourse, even if the victim has not attained the age of consent yet, various jurisdictions allow the exemption from punishment for statutory rape if the perpetrator marries the victim.
On the bright side, some states have amended parts of their legislation which gave a free get-out-of-jail card to rapists upon marriage to their victims. In January 2014, the Moroccan government amended Article 475 of its Penal Code. The law in question was an exemption for rapists to escape from punishment if they got married to their victim. Change was introduced as a result of the suicide of 16-year old Amina Filali and the attempted suicide of 15-year old Safae who were both forced to marry their rapists and ultimately lead the rest of their lives in further abuse and rape. Similarly, in October 2016, King Abdullah II ordered a reform of the 1960 penal code in Jordan which allowed the suspension of criminal prosecution for rapists if they married their victims. 159 rapists had benefited from the code between 2010 and 2013 to exempt themselves from punishment. In the same way, in December 2016 Lebanon approved the repeal of Article 522.
Despite some states joining those which condemn marital rape, the number of jurisdictions which still allow it is astounding.
Fasten your seat belts women, we will go through some male chauvinistic turbulence…
In Serbia, allowing or inducing a minor to cohabit with another person, or cohabiting with a minor is not allowed but if the minor is married, prosecution in the case of rape cannot be undertaken and if it has been undertaken before the marriage has been conducted, it is discontinued upon marriage.
In Iraq, if the perpetrator of rape marries his victim, any legal action against him is nullified and if there has been any investigation or procedure against him prior to the marriage, they are discontinued upon marriage. If a sentence has been passed before marriage, it is quashed after. Legal proceedings and the sentence will only be reinstated if the husband decides to divorce his wife or if the divorce is ordered by the court within 3 years following the cessation of the proceedings.
In Jordan, marriage is seen as a settlement for rape unless the perpetrator divorces the victim without just cause within 5 years of the offence committed. In that case, punishment for the offence is allowed.
In Kuwait, if the perpetrator of rape marries his victim with the permission of her guardian and the latter requests that the perpetrator be exempted from punishment, the perpetrator will not be punished.
In Tunisia, attempted or actual sexual offences against women under 20 years old can be settled through marriage with the offender. Prosecution will only happen if the husband brings divorce within 2 years of the marriage.
In Ghana Section 42(g) of the Criminal Offences Act 1960 (Act 29) (Use of Force in Case of Consent of the Person Against who it is Used) outlines that “The use of force against a person may be justified on the ground of his consent, but…(g) a person may revoke any consent which he has given to the use of force against him and his consent when so revoked shall have no effect for justifying force; save that the consent given by husband or wife at marriage, for the purposes of marriage, cannot be revoked until the parties are divorced or separated by a judgment or degree of a Competent Court”.
In India, Section 375 of the Indian Penal Code (IPC) provides that sexual intercourse or sexual acts by a husband with his wife is not rape if the wife is not under fifteen years old. Section 376B of the Code outlines that forced sexual intercourse by a husband with his wife is only a criminal offence if the couple are not living together under the same roof.
In Lesotho, marital rape is only explicitly criminalised if the parties are separated, there is a judicial order of restraint against one of them, or the husband or wife uses abusive language, violence or threats in order to have sexual intercourse.
In Singapore, under Section 375(4) of the Penal Code, the concept of marital rape is deemed never to exist unless the wife is under 13 years old or she was living separately from her husband and proceedings have started or been granted under an interim order for divorce, nullity or judicial separation.
In Sri Lanka, a husband can only be guilty of rape if he is judicially separated from his wife. Section 363(e) of the Penal Code outlines that “A man is said to commit rape who has sexual intercourse with or without her consent when she is under sixteen years of age, unless the woman is his wife who is over twelve years of age and is not judicially separated from him”. It is to be noted that Muslim girls are allowed to be married off at 12 years old, although the minimum age of marriage is 18. There is no indication in this law that any child “bride”, Muslim or otherwise, over the age of 12 is protected from rape by the Penal Code.
In Tanzania, under Section 130(2) of the Penal Code, marital rape is only a criminal offence if the marriage is still legal, but the couple is separated. It is to be noted that the legal age of marriage for girls in Tanzania is currently 15, and 14 with judicial consent.
A perpetrator can be exempt from punishment by reaching a settlement, financial or otherwise, with the victim or the victim’s family in at least 12 out of 82 jurisdictions, namely in Belgium, Croatia, Iraq, Jordan, Kazakhstan, Lebanon, Palestine, Nigeria, Romania, Russia, Singapore and Thailand.
In Greece, marriage as a settlement is permitted for “seduction” of a child. If the perpetrator and the victim get married, any criminal prosecution is stopped and declared inadmissible until a possible annulment of the marriage, upon which the prosecution is re-opened.
The dichotomy between the East and the West is portrayed by the media as a segregation of values, traditions and most importantly, fundamental rights. The former is often pictured as an inherent body of patriarchal systems which are rooted deep in the culture emanating from these lands while the latter is attributed an image of liberalism, modernity and the upholding of human rights for its citizens. But here’s the mirage: most of the laws allowing marital rape and exempting rapists from punishment, which exist in the jurisdictions above, stem from colonialism. For instance, Article 308 of the Jordanian Penal Code stems from the Ottoman rule which was imported from the French Penal Code. Countries, such as Lebanon and Tunisia, which were under the French colonial rule, benefited directly from such laws. The laws come from the culture which was prevalent under colonial rule, a culture which dictated the subjugation of women by men. In exchange for control of the states, the colonials offered men a complete control of their homes. Colonialists then furthered and legitimised misogynist voices within those who were colonised, leading to an agglomeration of sexist barriers which women now face in those states.
It is now understandable to note that the law around rape which ultimately resulted in the ones we currently find in the Middle East and North Africa, was only abolished in France in 1994 (only 5 years before Egypt abolished it too). This shows that the laws which encourage gender discrimination is not inherent to the countries in which they are currently followed. And what do we say to that? Thank you colonialism for the croissants, coq-au-vin, baguettes, foie gras and (I almost forgot because of a mouthful of French macarons) a colonial rule which has misled and still misleads governments and feminists from the West into thinking that this all stems from Eastern culture and tradition.
Here is the Problem: there is no such thing as marital rape
The UN Women guidelines outline that sexual assault should be criminalised within an intimate relationship. Various international and regional human rights instruments, such as the Convention on the Elimination of All Forms of Discrimination against Women or more regionally, the InterAmerican Convention on the Prevention, Punishment, and Eradication of Violence against Women (Convention of Belém do Pará) in the Americas, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol), and the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), stipulate that every woman has the right to be free from violence in both the public and private sphere. Almost every state in the world has ratified at least one of these instruments and are consequently obliged to prevent and punish violence. However, the fact that many still do not explicitly criminalise rape within a marriage can be taken as an encouragement and excuse for such violence.
Indeed, marriage is often seen as a protective bubble which excuses and has an explanation for any type of sexual violence committed within its institution. It is also seen in some jurisdictions, and wrongly so, as a purifying act for women to relieve themselves of the dishonour that rape supposedly brings upon them and/or protect their chastity by getting married to their perpetrators. Where does all this nonsense come from, one may ask? From governments and social systems made of men, by men and for men. Trust me, I am a feminist and for this reason do not confuse my words for misandry. The problem with this mindset, which has ultimately reproduced itself in the implementation of laws at the disadvantage of women, is that it legalises what would have been illegal if it were not for marriage.
Rape is a crime across various jurisdictions. However, states which allow perpetrators of rape to be exempted from punishment by marrying their victims not only nullify the act of statutory rape (which has already been committed) and declare it as void, legal and a crime which cannot be prosecuted upon marriage to the victim, but also enable perpetrators to freely commit further rape after marriage. The problem here is that upon marriage, rape is no longer seen as a statutory crime which has been committed against a woman, but as a revoked one bearing exceptions to its degree of unlawfulness: it is rape UNLESS the victim gets married to her perpetrator. If she does, it is no longer defined as rape. Surprisingly, rape is the only crime which is considered as a deviation from the concept that all crimes must be prosecuted. One certainly does not advance the argument that not all murder is murder or not all kidnapping is kidnapping.
“I kidnapped her because she was blond!”
Judge: “It is a kidnapping unless the woman was blond! Case dismissed and good luck on the next one Mr. Ted Bundy!”
“I killed one of them because she was pretty, light-coloured, honey-brown skin, tall for a woman, beautiful shape, friendly…”
Judge: “Fine, it is murder unless it has been committed because of a woman’s physical appearance! Have a big shot of whiskey with me Mr. Samuel Little!”
One may then ask why this happens only with rape cases. This is because sexual violence committed against women has long been considered as a crime which not only occurs because of the victim (hello again victim blaming) but also as one at the detriment of the victim’s honour. Rape is treated as a breach of honour or an immoral crime rather than a violent one in at least 15 out of 82 jurisdictions: Afghanistan, Belgium, China, India, Indonesia, Jordan, Luxembourg, Netherlands, Nigeria, Pakistan, Palestine, Peru, Singapore, Taiwan and Yemen. In those states, the legal provisions on rape do not focus on the acts of the perpetrator nor on the perpetrator himself but instead carry sexist terminology centred around humiliation, outrage, honour, modesty, chastity or morality at the expense of women. In addition, at least 24 jurisdictions use terminology of indecency, obscenity, lewdness or depraved actions when describing rape. As such, the language around rape focuses not on the violation of bodily integrity or assault of a person but rather on the violation of morality or indecency committed against society (her body but their honour and property). Therefore, again it is evident that the focus is not on the perpetrator but again on the victim.
As the rape of a woman is often seen not as sexual violence but an immoral act, when rape is committed, the focus is wrongly put on the misconception that sexual intercourse has occurred between the rapist and the victim. The fact that it was non-consensual or that a crime has happened is hardly relevant and important compared to the dishonour that this “sexual intercourse” outside the institution of marriage puts on the victim in such societies (think twice before wanting to travel to the Philippines, Bahrain, Iraq, Angola, Equatorial Guinea, Eritrea, Libya and Syria please). Indeed, for such societies, sex for a woman can only happen within the marital contract. If the woman was a virgin before she was raped and is no longer so following the rape which has been committed against her, she is seen as having been robbed of her honour for the virginity of a woman is considered as her dignity which only her husband has the right to claim. Therefore, her following fate is a cycle which has been embedded in history. As mentioned earlier, a husband was the only one allowed to claim his wife’s body, sexual will and honour as these were deemed rightfully to belong to him. It was socially, culturally and legally acceptable. The doctrine behind the “marry your rapist” propaganda stems from that historical era as well. If a man has claimed the body, sexual will, honour and dignity of a woman without him being her husband, the only way for them to be restored would be to marry the man who took all of that away from her, such that on becoming her husband, society would not point fingers at her for “sexual intercourse took place before she was married but it was with her husband to whom she is now married, so it is socially and morally acceptable. Her honour was once taken by her now husband to whom it belongs to anyway.” Therefore, marriage to her rapist is considered to wash off the sin of what was seen as pre-marital sexual intercourse, of her body having been touched by someone other than her (future) husband. As marital rape is not criminalised within those jurisdictions, thus it does not matter if the woman is repeatedly raped after her marriage to her perpetrator nor does it matter that she was raped before her marriage for her body and sexual will now belong to her rapist (I meant husband sorry!).
The problem with such dialogue is that it focuses on the honour of the victim rather than on the perpetrator. Laws which exempt rapists from punishment, if they get married to their victim feeds into the narrative of a man’s sexual need/superiority as his inherent nature such that the sexual violence he has committed becomes dismissed upon his marriage to the victim. It also encourages belief systems which claim that women’s bodies are symbols of morality within a society and are controlled by everyone else, but her, such that a legal system exonerating perpetrators of sexual violence is ultimately encouraged. Such laws deny justice to the complainant and focus on the fact that rape is not a serious crime but can be settled through marriage. As a woman in some states is often considered to be her family’s property to the point where she has no self-autonomy, families are usually the ones who make decisions for her. In Kuwait, a victim’s marriage to her rapist and the choice of him being exempted from punishment is decided by the victim’s guardian. In societies where rape is seen as taboo for women, guardians usually choose to marry them off instead of suffering from further societal stigma. In this way, a woman’s eventual marriage to her rapist mirrors the fact that she is being traded as a possession, from one to another. It also leads to the eventual removal of control of her choices and future to the one who has abused her, condemning her to a lifetime of further subjugation and sexual violence. This feeds into societal perceptions that attach the stigma of shame from sexual violence not to the perpetrator but to the victim. It also encourages belief systems focusing on the fact that a woman’s body, sexual will and honour belong to everybody else but hers. While in various states around the world a husband, who is claiming ownership over his wife, has the right to compromise her body, sexual will and honour, it now seems that even someone who compromises these things outside the institution of marriage should be the one who claims ownership for them by marrying his victim. Those states which do not outlaw marital rape because they believe that there is no such thing, and allow rapists to marry their victims, condemn women to a lifetime of further abuse because those women have been raped, forced to marry their perpetrators and once married, they cannot complain that they are still getting raped because those jurisdictions do not recognise marital rape as a crime. It is a vicious circle.
In those states, the focus is more on the fact that a man who was not the husband of the woman has penetrated her and robbed her of whatever sanctity society thought we women have between our legs, instead of the rape. As such, there is no line demarcating consensual from non-consensual sex. The only thing in the limelight is the sexual intercourse which has happened, which these states believe can only occur within the marital contract. It is clear that the concept of marital rape is nullified and its status as a crime void because sexual intercourse within the institution of marriage is the norm if not the law, whether forced or not. Marital rape focuses on rape within the institution of marriage, an act which is not deemed as illegal in various parts of the world. As such, it creates a segregation between states which outlaw marital rape and those which do not, when all of them in fact criminalise rape. It gives the opportunity to some states to declare that if rape has been committed, it can be solved through marriage with the perpetrator and as such, not all rape is rape. The concept of marital rape does not work in the “marry your rapist” propaganda and even if human rights activists speak out against the marital rape, which happens between a rapist and his victim after they get married or the fact that a victim is forced to marry her rapist, they will never succeed for what good is it to be fighting against something when that thing does not even exist in a jurisdiction? What good is it to fight against marital rape in a land where it is not considered a crime? Let us put down our armour and well-written articles because what we are fighting against is nothing but a mirage (which is certainly a highly pixelised picture in other states but reduced nevertheless to a non-existent blur in others).
Similarly, in some jurisdictions there is an expiry date on legal proceedings against rape where a marriage is involved. In Iraq, as mentioned earlier, legal proceedings against a perpetrator of rape are stopped upon marriage. If there is a divorce within 3 years of the cessation of proceedings, the legal proceedings are resumed. In Tunisia, it is within 2 years of the offence when the couple has been divorced. The problem is that if the divorce is after 2 years and 1 day after the offence has been committed, the offence is not prosecuted and deemed not to have happened. Now the woman is raped and divorced. In Indonesia, a complaint for rape or marital rape has to be within 3 months and it can be terminated if the victim or her family withdraws it. This encourages the notion that rape is not a crime but a choice to be adjudicated upon, where the will of certain people can automatically change the status of rape as a crime only because there is a marriage involved between the perpetrator and the victim. It sends the signal that women are properties of their husbands until separation and paves the way for the legal and societal discrimination against women. It also provides impunity for acts of sexual violence and allows perpetrators to escape prosecution only because they are mere husbands.
In addition, jurisdictions (such as Belgium, Croatia, Iraq, Jordan, Kazakhstan, Lebanon, Palestine, Nigeria, Romania, Russia, Singapore and Thailand, Philippines) where there is no punishment for husbands who commit marital rape if their wives forgive them, ignore the fact that wives might do so because they cannot afford their husbands being prosecuted and sent to jail often because of children, financial difficulties or because it can even lead to an eventual divorce which is considered as taboo for women in various societies. The fact that it is a morally incorrect marriage wrongly allow states to assume that the law has to be applied differently, molded and tampered with because the rules should be allegedly different within a marital contract, as if the woman’s choice is ultimately compromised as soon as she puts on that wedding dress.
In states such as Singapore, India, Lesotho, Ghana or Sri Lanka, the rape of a wife by her husband is only considered as a crime only if the husband is judicially separated from his wife. However, the problem in a lot of jurisdictions is that a woman is not allowed to divorce her husband until he decides to divorce her. . This ultimately gives the power to the perpetrator, the man, and ignores the will of the woman and the crime which has been committed against her. The legal system works only if the perpetrator who has committed the crime, decides to leave his victim. It also condemns the wife to a lifetime of further rape and makes the husband/rapist the decision-maker, the one who can decide when he wants to divorce his wife, stop the rape and risk being prosecuted. As logic would have it, rapists would never dare divorce their victims at the risk of them being prosecuted for the rape they have committed before they got married. Again here, the concept of marital rape simply does not exist for it is not recognised, but instead sexual intercourse even if it is forced, is normalised within the institution of marriage. Rape within a marriage is still allowed as long as they are married. It only acquires the status of crime when the “couple” is separated because the wife is no longer considered as the property of her husband and her separate identity is thereby restored. This does not mean that marital rape is then outlawed. It is not. It just means that the sexual right of the husband ceases to exist upon separation such that any sexual intercourse after is considered as rape. As rape is criminalised in those jurisdictions, this explains why the husband can then be prosecuted. However, as long as he stays with his wife, he cannot be touched by legal proceedings even if he commits rape within his marriage.
The problem is further acute when one starts pondering over the fact that 650 million of girls and women today were married off before they had even turned 18 years old, which means that 650 million girls globally have experienced marital rape. 1 in 5 women between 20-24 years old were married as children and 1 in 5 women globally are married or in a union under the age of 18. About 12 million girls are married every year, leading to forced and/or child marriages. Globally, the legal age for marriage is 18 years old (except in four countries and territories) but nearly two thirds of states allow girls to be married with parental or judicial consent. For instance, the legal age of marriage for girls in Tanzania is currently 15, and 14 with judicial consent. In Sri Lanka, Muslim girls are allowed to get married as early as 12 years old. This often happens because girls have attained the age of puberty, which is considered as a sign of sexual maturity and to preserve a girl’s virginity, which is often seen as her chastity and purity (which allegedly have to belong to her future husband), the girl is often married off to someone much older than her. In various parts of the world, as mentioned earlier, there is no such thing as marital rape if the victim has attained puberty. However, most girls today are attaining the age of puberty as early as 8 years old, which means that there is a higher chance for them to get married at such a young age and to get raped. In Singapore, it is not considered marital rape if the wife is not under 13 years old while in Sri Lanka if the wife is over 12 years old.
Where young girls are sexually assaulted or raped, their families marry them off to remove the alleged dishonour that rape brings upon victims. In addition, girls are married off at an early age because of economic reasons or social concepts which dictate that a woman’s destiny is to get married and have children. Furthermore, in countries where the dowry system is still in place, families marry off their daughters at a young age because it is more affordable. The problem is that this all ultimately leads not only to child marriage but to child rape as well. Sex with a child is considered as rape in almost every state. However, in those jurisdictions where girls are getting married off at such an early age, they cannot be protected from rape because marital rape is not criminalised. Therefore, even in those jurisdictions where child marriage or rape on a child or even rape is illegal, it is not considered as such when children/young girls get married because of the belief that rape cannot happen within the marital contract. In this way, these crimes are ultimately legalised and remain unprosecuted because of (forced) sexual intercourse within a marriage. Forced sexual intercourse which is not recognised as marital rape because the latter itself is not recognised as a crime. Again here, the concept of marital rape simply does not work.
In Greece, Russia, Serbia and Thailand, if there has been sexual intercourse with the victim and she has not attained the age of consent yet, it is not considered as a crime if the perpetrator and the victim get married. In most countries, the age of consent is 18 years old and the fact that a perpetrator can escape punishment by marrying his victim ignores the fact that sexual intercourse with someone who has not attained the age of consent yet includes the green light to have sexual intercourse with children as well. . This not only declares void a statutory crime, but it also ignores power politics between children/minors and older men, and sexual violence caused by pedophiles. A 50-year old rapist is still exonerated if he commits rape against a 15-year old and marries her after that. As the sexual right of a husband is his sign of appropriation of his wife, marriage is therefore a reflection of that right such that upon marriage, the perpetrator is not deemed to have committed a crime for the object of his sexual gratification belongs to him anyway. As these jurisdictions do not recognise marital rape, other crimes such as child rape or having sex with a minor (which are outlawed within the same jurisdictions) become hidden and unprosecuted upon marriage, and ultimately legal after they have been committed within the marital contract.
Moreover, in some states, child marriage and ultimately sex with a child are outlawed, but marital rape is not. The logic of these jurisdictions not criminalising marital rape is that rape cannot happen within a marriage because sex came with the vows. However, applying that same “logic” in jurisdictions where child marriage is still practiced, which sadly results in child rape, this then ultimately must mean that if a man (for whatever reason) marries a child, then sexual intercourse with that child came with the vows. No? Outrageous? Why, only because there is a child involved? Surely, it revolts anyone to think that someone can have sex with a child but why is it that forced sexual intercourse with a child can be so repulsive for some states but forced sexual intercourse with a wife of age is not? But most importantly, why do we still hold marital rape as a crime?
When two people are in a partnership and rape is committed against the other, we do not call it “partnership rape”. When two people are engaged and one is ultimately raped within the relationship, it is not known as “engagement rape”. Nor is it considered as “relationship rape” when rape has been committed within a relationship which lasted for years. The focus in those situations is on the rape. Creating a segregation between “rape” and “marital rape” invites some states to recognise the former and criminalise it and others to ignore the latter and allow it. What does “marital rape” even mean anyway and how does it differ from rape? It simply does not. The fact that it has been committed within the institution of marriage is and should be irrelevant. It only fuels patriarchal systems into furthering misogynistic belief systems and gives an opportunity for states to choose to ignore the prosecution of a crime which they are already prosecuting anyway if it were not for marriage: rape. As long as there is such a thing as marital rape, various states are still going to have a chance to decriminalise it despite criminalising rape in their legislative provisions. The fact that rape is rape, except when two people are married, allows the defence that marriage acted as a green light for intercourse or “it came with the ring/vows”, “a buy-one-get-one-free package”, that “when you get married, it gives you a license” and that there is “permanent consent by the wife within a marriage” or that “a husband has full rights over his wife”. Lady Justice is already blind and has to judge a situation with what is put in her scales. However, if she is receiving nothing because legal provisions do not even outlaw something, she cannot adjudicate and reminds blind to the plight of people. Rape is rape and its status as a crime and its definition cannot change simply because you put a ring on it.
To be continued…