Wednesday, 24 April 2019

Marital rape a non-criminalized crime







Recent incidents of domestic violence have made me contemplate over a very indispensable issue – marital rape. As of today, Pakistan still has a very feeble stand over criminalizing marital rape with section 375 being the only legislature related to rape crimes yet still includes no reference to marriage. With the rising hue and cry of ‘women empowerment’ being a citadel of only the wealthy bourgeoisie, the average middle class women still deals with marital sexual assault on a common basis.

With women like Asma Aziz being at the receiving end of sexual abuse and assault quite frequently, it can be easily seen that the problem lies in our society being dominated by male chauvinists who consider women as mere tools of pleasure. Being married doesn’t change the social rules. Just because a woman said “I do” to marriage doesn’t mean that she has said “I do” to sexual intercourse whenever, wherever, and however her husband wants it.

Due to the archaic rule that marital rape is not easily recognized as an offence, it is assumed by the law that, marriage refers to the wife giving consent to all the “matrimonial obligations” including sexual desires. Even though Pakistan as a nation is based on the theory of equity, it still has not recognized the right a woman has in controlling marital intercourse as a component of equality. As the nation lacks any sort of legal provisions regarding marital rape, the victims’ only resort is to go to court. Courts have various methods to identify marital rape and have given strict punishments but due to the lack of legal provisions, they are bound and hence cannot describe “forceful intercourse by a man upon his wife” as marital rape. Hence, the Judiciary is not enough and it requires the help of the legislature. The laws have to adapt to the changing reality of our society.

The causes behind a crime of this sort can be traced back to the social position given to women in Pakistani society. Historically, Pakistani women have been considered to be owned by their fathers and later their husbands. Hence, rape can, to a certain extent, be equated to a crime against property. This is why in the ancient times the penalty against rape also involved paying compensation to the victim’s father or husband. Since the wife is considered chattel of the husband and a man cannot commit a crime against his own property, the question of marital rape doesn’t arise at all. Hence, the fact that males have to establish ownership over a woman after marriage makes a married woman more susceptible to being exploited by her husband. It is even evident in Muslim Personal Law that a woman is treated as inferior to a man. Her existence stems from her relation to a man; her father or husband. Hence, she cannot say that a man who has “ownership” over her has violated her or committed a crime against her.

Allowing spousal rape and not criminalizing it, effectively means that human dignity can be accorded lesser value in the case of a woman when she is married. It is inherently wrong and problematic to assure dignity and sexual autonomy to the husband and not the wife. The argument that the act cannot be criminalized to protect the stability of the institution of marriage is biased and illogical. Only when two partners are given equal rights over their bodies can the “sacred” institution of marriage thrive.

Many countries do not collect data on marital rape – not just because it is not a crime, but also because social pressures mean it is rarely reported or discussed. Women are often torn between wanting the violence to end by reporting it and not wanting the husband and main breadwinner to be jailed. Their decision depends on how socially acceptable it is to get a divorce and on their own financial independence. But we need to realize that, rape is rape – whether it occurs to a woman of a particular age, in marriage or a relationship.


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