India: SC rules sex with minor bride is rape, but marital rape still non-ctiminal for wives aged 18+ Print E-mail

 Friday October 13, 2017

Editorial

It is rape

Sex with minor bride a crime


THE Supreme Court on Wednesday plugged a loophole in law that so far allowed a married man to have sex with a girl even if she is under 18, the age of consent. While the criminal code protects a child by prohibiting anyone from having sex with anyone below 18 years, the law provided an exception for married couples. The exception says that sexual intercourse with a minor wife above the age of 15 would not qualify as rape. This meant that while you could be charged with rape for having consensual intercourse with a girl below 18, non-consensual sex with a minor bride would be legal. By striking off the clause in response to a public interest lawsuit, the court has aligned the millions of married minors with their unmarried minor peers regarding sexual assault laws. Perhaps, now we will have fewer underage girls being married off to much older filthy rich men.

The new legal regime is a huge step forward for the child brides ­ UNICEF-2016 report says that 47 per cent of girls are married off before they are 18 in India ­ considering that successive governments have fought shy of invalidating the regressive rule, all in the name of tradition and socio-economic realities. But while criminalising rape empowers girls to have sexual autonomy and a say over their bodies, for the law to be effective, the government ­ and society ­ need to first strictly prohibit child marriages. Rather than cooking and cleaning for their husbands and becoming mothers at a young age and suffering from consequential health issues, girls must be encouraged to go to school.

The Supreme Court’s ruling reflects a shift in social mores. The Indian society is no longer happy being chained to medieval rites and traditions. And, it is incumbent upon the judiciary to nudge the society towards progressive practices and laws. Earlier in August, the Supreme Court had boldly protected the rights of Muslims women by declaring instant triple talaq unconstitutional. Next on the progressive agenda should be protection and autonomy to married women above 18, notwithstanding the government’s specious plea against criminalising marital rape in the name of protecting the institution of marriage.

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 Saturday October 14, 2017


The legal message

By Gulika Reddy
 
Removing the current marital exception to rape will also have an important signalling effect

In the Supreme Court’s decision on Wednesday, criminalising sex between a man and his minor wife, while the court refrained from adjudicating on the larger issue of marital rape, its judgment made reference to the Justice J.S. Verma committee recommendations that explained why the exemption of marital rape must be removed, and that a marital or other relationship is not a defence or justification for a lower sentence.

Rooted in outdated notions
Consider this: 2.6 billion women live in countries, including India, where marital rape is not a crime. Millions of others live in countries including the U.S., where marital rape is treated differently from other forms of rape. The unjust treatment of marital rape as an exemption stems from three common law notions: marriage constitutes a contract, which includes the woman’s irrevocable consent to sex; a woman is the property of her husband, and rape is a violation of a man’s property rather than a crime against women; and after marriage, a woman’s identity becomes part of her husband’s. Despite the outdated, problematic origins of this exception, the Indian government has consistently resisted a change in the law.

The gang rape of a 23-year-old student in Delhi in 2012 resulted in an amendment to the criminal legislation in India, including the definition and punishment of rape. However, the exemption of marital rape was retained, despite recommendations by the Justice Verma committee. Lawmakers reacted to its recommendation arguing: “If marital rape is brought under the law, the entire family system will be under great stress.” A few years later, we face the same debate as the Delhi High Court hears a petition seeking the inclusion of marital rape under the existing rape law. This inclusion too is being rejected by the government. Counterintuitively, it is also being rejected by some women’s rights activists, for completely different reasons. The government thinks it will be used as a tool to harass men, and that it will affect the institution of marriage ­ an argument that places greater significance on marriage than women’s rights.

Ignores realities
Women’s rights lawyer Flavia Agnes has other objections. She does not “believe in placing rape on a pedestal within the hierarchy of crimes within a marriage. For a woman who is facing domestic violence, it is equally violating if her skull is fractured, her spine is broken, her cornea is damaged, liver is injured, or her vagina is penetrated forcefully. What women object to is the violence involved.” She also explains that while sexual violence is “very common, it is never in isolation”, and that “those who isolate penetrative sexual violence within marriage, and place it on a pedestal, are oblivious of the women’s social realities.” Feminist researcher Sahla Aroussi made a similar critique in a recent publication where she examines sexual violence in conflict and argues that a narrow focus on sexual violence ignores the multiplicity of suffering faced by women and can result in inadequate attention being paid to their other needs.

Ms. Agnes and Ms. Aroussi are right that we need to ensure that law and policy interventions do not inadvertently trivialise non-sexual violence and that steps are taken to strengthen compliance and implementation of laws relating to all forms of violence. But we must also recognise that removing the current marital exception, if nothing else, has an important signalling effect. In order to prove effective, such a change needs to be accompanied by a deliberate attempt to shift attitudes that normalise violence in the home. Currently, even in cases of non-marital rape, judges have suggested that rape victims marry their rapist for a “happy conclusion”, which highlights the notion that forced sex does not amount to rape if it takes place within a marriage.

The challenge of sticky socio-cultural norms is not unique to India. The experience in countries such as the U.S. where marital rape is criminalised shows that despite changes in the law, the patriarchal notion that marriage overrides the legal and sexual autonomy of a woman still exists. In 2015, U.S. President Donald Trump’s counsel Michael Cohen expressed his ignorance about the legal possibility of a man raping his wife. “You cannot rape your spouse,” he said. “There’s very clear case law.” He later corrected himself, but his comment has sparked conversation about why he made this error. Although all 50 states had enacted laws against marital rape by 1993, almost half the States still treat it differently from rape outside of marriage. In some states, marital rape is a chargeable offence only if the perpetrator uses or threatens to use physical force. In others, proof of marriage is often an easy way to reduce or mitigate the consequences of the offence. These kinds of legal distinctions legitimise the perception among law-enforcement agencies that cases of marital rape should be treated as less serious than rape outside of marriage.

Towards justice, prevention

These perceptions among law-enforcement agencies suggest that while it is important to work towards facilitating access to justice for victims, it is crucial to simultaneously focus on preventive measures. This view was reflected in a UN multi-country study on violence in Asia-Pacific which recommended that strategies must focus on structural factors that prevent the incidence of rape, rather than focussing only on strengthening response mechanisms. Since gender socialisation begins young, the study also speaks of the need to focus interventions on children and adolescents. This socialisation is reinforced through family and societal institutions, popular culture and media. Social learning psychologists have found that a disrupted home environment contributes to violent, anti-social behaviour of a child. Therefore, in addition to sensitising law enforcement authorities whose attitudes are merely symptomatic of widely-held beliefs about women and gender roles, we need to work with children, parents and the larger community to ensure marital rape is condemned, not condoned.

Gulika Reddy, a human rights lawyer and Founder & Director of Schools of Equality, is a Dubin Fellow at Harvard Kennedy School

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 Saturday October 14, 2017

Dev 360: End child marriages to build a real ‘new India’

Now the Supreme Court has rightly taken away the fig leaf of tradition to conceal a barbaric practice.

By Patralekha Chatterjee

Representational image

The Supreme Court’s landmark decision to strike down a legal clause that permitted men to have non-consensual marital sex with girls as young as 15 is a worthy first step. It has punctured the specious argument that just because something has been part of “tradition”, we must continue to overlook its heinousness and devastating impact on individuals, families and the country at large. The government had earlier defended the controversial exception by saying that although the practice of child marriage is illegal, “it is also a fact that a large section of Indian society, which is living in rural areas, continues to follow such practices as part of their tradition”. This is ingenuous. It is clear as daylight that despite all the pussyfooting and skirting around the issue, there is no argument for child marriage. It is illegal, immoral, ruinous for the child’s education, health, development and bad for any nation. All this should be obvious, but despite being made illegal, the practice of child marriage has continued because the political class and the government chose to be ambiguous in the positions it took. Now the Supreme Court has rightly taken away the fig leaf of tradition to conceal a barbaric practice.

Tradition is not sacrosanct. When it harms the individual and society, it must be junked as has been done with practices like sati. But as is evident, the court order has raised a plethora of new questions, the answers to which will determine the effectiveness of the order. In its ruling, the court noted: “In our opinion sexual intercourse with a girl below 18 is rape regardless of whether she is married or not.” It added: “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.” It makes clear that without criminalising sexual intercourse within marriage with a girl below 18, the Prohibition of Child Marriage Act can’t be really enforced. This deliberate ambiguity is what has led to a situation where child marriage is rampant in the country. Hearteningly, the ruling scraps the anomalies and exceptions in various laws relating to age of consent. With the court amending the rape law and declaring sex with an underage wife illegal under IPC, the underage wife can file a complaint against her husband within a year of the committed offence. But what does this effectively mean for India’s child brides?

How easy will it be for them to use the verdict? Will the number of child marriages really come down? As in everything else in India, the real challenge will be implementation, specially in states where thousands of child marriages take place every year. As Flavia Agnes, women’s rights lawyer and founder of NGO Majlis, notes, the verdict is a big milestone but can be implemented “only if the wife files a complaint”. The State cannot implement it on its own, without a complaint from a victim. Given this, little will change on the ground unless the political class, across the ideological spectrum, ensures the police and the criminal justice system backs the minor girl who is forcibly married off. Without that, she is most unlikely to have the courage to go to a police station and file a rape complaint against her husband. For a girl to get such backing, a few other things are needed. Child marriages are typically arranged by parents, who are most unlikely to back the girl. Therefore, the brave girls who choose to use the court’s ruling to extricate themselves from their horrific situation need safe refuges and free legal assistance. If the government now has the sense to not challenge the Supreme Court verdict, it must create such support systems. The reality is that a girl opposing child marriage comes under immense mental and even physical pressure from parents, other relatives, neighbours, sometimes friends as well. To whom will she turn? She may have to leave home. Where will a girl in her early teens go? Unless there are practical answers to these questions, child marriages will continue and child brides will continue to be raped.

For the court’s order to be operationalised, several other steps must be taken beyond the legal arena. To empower the girl so that she can speak up, resist and use the law, female literacy has to improve and girls must be enabled to at least complete school. That opens more economic choices and the possibility of empowerment. Only then will she be able to exercise the options available to her under law and say no to child marriage. The stakes are very high; the damage spans more than one generation. Child brides lead to underage mothers. For example, Uttar Pradesh reportedly has the highest number of children born to children ­ around one million. Read that statistic alongside maternal mortality and infant mortality and you will know the savage destructive nature of early marriages. Child marriage is not only a human rights issue, it is equally a human development issue. And states which trail in human development like UP or Rajasthan also typically have a high number of child marriages ­ which lead to low education levels among girls, poor maternal health and higher infant mortality rates. The court order will hopefully deter many parents who marry off their daughters below 18. It should also deter parents of would-be grooms because marrying a minor may now land the young man and them in jail. But the government cannot rest on hope. It must put the support systems in place. The future of India is at stake here. Talk about development and “New India” means little if child marriage continues taking a huge toll on the development of millions of underage girls. As of now, India has the highest number of child brides in the world ­ more than 23 million. Changing this sorry statistic is a must.

Patralekha Chatterjee focuses on development issues in India and emerging economies. She can be reached at
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 June 10, 2015

When even rape is legal

Kanika Sharma and Anashish Gupta

SHAME: “If there is legal backing for to marital rape, this means that women who are victims of sexual assault by their husbands have little hope for justice.” Picture shows a protest against the gang rape of a minor girl in Haryana, at Jantar Mantar in New Delhi. (SHIV KUMAR PUSHPAKAR)

There is overwhelming evidence to prove that marital rape is the most common form of sexual violence in India. Yet, the government refuses to make it punishable by law

Some debates appear to be timeless. Today’s raging debate on marital rape in India echoes arguments that go back more than 125 years ago to the Phulmani case when a 11-year-old Bengali girl died after being brutally raped by her 35-year-old husband. The colonial government then proposed to increase the age of consent for sexual intercourse for a girl from 10 to 12 years. But some of India’s most prominent leaders opposed the measure, and the Age of Consent Act was passed only in 1891, after much acrimony and argument.

Reflecting on this debate, Dr. B.R. Ambedkar said in 1943 ( http://bit.ly/17fGw2O): “It is impossible to read the writing of those who supported orthodoxy in their opposition to the Age of Consent Bill, without realising the depth of the degradation to which the so-called leaders of the peoples had fallen… Could any sane man, could any man with a sense of shame, oppose so simple a measure? But it was opposed….” Dr. Ambedkar would have been as appalled by today’s arguments against the criminalisation of marital rape.

A warped defence
According to Section 375 of the Indian Penal Code, which defines “rape” and “consent”, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”. Sexual intercourse can take place with or without consent, but because of the above exception, the latter is legalised within marriage by Indian law.

The warped defence for this exception continues in spite of overwhelming evidence that marital rape is the most common form of sexual violence in India. The National Family Health Survey (NFHS) in 2005-06 ( > http://bit.ly/1n9ub6H) posed questions to over 80,000 women between the ages of 15 and 49, on sexual violence by husbands and other men ( > http://bit.ly/1KmUmjh). Sensitive questions such as “did your husband ever physically force you to have sexual intercourse with him even when you did not want to?” are difficult to ask in a survey; hence informed consent for the violence module was obtained twice, and trained interviewers were given strict instructions to ensure complete privacy of the respondents. The answers to these questions are available in the last chapter of the NFHS report. .

Data show that 8.5 per cent of the surveyed women (one in 12) said they had experienced sexual violence in their lifetime. Almost 93 per cent of these women said that they had been sexually abused by their current or former husbands, while only 1 per cent said that they had been sexually abused by a stranger.

In a recent working paper ( http://bit.ly/1e0pIA0), we made a comparison of the above data with the reporting of sexual violence to the police, based on National Crime Records Bureau statistics. The analysis found that less than 1 per cent of the incidents of sexual violence by husbands were reported to the police.

If there is legal backing for marital rape, women who are victims of sexual assault by their husbands have little hope for justice. The exception in the law needs to be repealed urgently, as recommended by the Justice Verma Committee in 2013. The committee argued that the “relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity”. The law on rape in India has evolved to place the burden of proof of consent on the accused, and these provisions are even more important for women facing sexual violence within marriage because married women are more likely to face social sanction for reporting violence. Also, Section 498A specifies only mental and physical abuse under its “definition of cruelty by husbands and in-laws”. An amendment would include sexual abuse.

Positions of political parties
Even though there is little hope from the current government, the political class could do more in this respect. The present controversy was stirred when Rajya Sabha MP Kanimozhi asked the government if it plans to bring an “amending bill to the IPC to remove the exception of marital rape”, to which the Minister of State for Home Affairs Haribhai Parathibhai Chaudhary reply was that the government had no plans to do so, as marriage is a sacred institution in India. It is time to ask the government if it at least accepts its own survey’s data on sexual violence by husbands. The opposition, in a majority in the Rajya Sabha, could pass a private members’ bill amending the IPC. Political parties could put the criminalisation of marital rape on their election manifestos.

While the Protection of Women from Domestic Violence Act 2005 provides civil remedies such as shelter homes, medical facilities and monetary relief to victims of sexual violence by husbands, legal clarification will go a long way towards recognising and reducing the problem.

But we would be fooling ourselves if we believe that the problem can be solved merely by removing the marital rape exception. A much bigger challenge is to change the patriarchal social norms. In the NFHS survey, for instance, when the women were asked if wife beating is justified, 54 per cent said they believed it was. Clearly, the law alone cannot change mindsets.

We realised this when we worked with a minor Adivasi mute girl in Madhya Pradesh who was gang-raped. She was covered by many laws: Section 375 and 376 (rape provisions) of the IPC, Protection of Children from Sexual Offences Act (POCSO) 2012, as well as the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The local police, however, were reluctant to invoke the SC/ST Act, and did not know about the existence of the POCSO Act. Despite its being banned, the girl was subjected to the “two-finger” test in the medical examination. The law is an important means of enabling social change, but without a wider change in social attitudes,it can be quite ineffective.

In 1943, Ambedkar regretted that “political reform” had taken precedence over “social reform”. Despite this, he continued to seek both legal and social changes to improve the lot of India’s Dalits and women. Today, what is getting priority is economic reform, but we would do well to remember Ambedkar’s words from the same address: “Rights are protected not by law but by the social and moral conscience of society… if fundamental rights are opposed by the community, no Law, no Parliament, no judiciary, can guarantee them in the real sense of the word”.
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(Kanika Sharma ( ) is the national organiser with the National Alliance for Peoples Movements (NAPM) and Aashish Gupta ( ) is research fellow at the Research Institute for Compassionate Economics.