Making marital rape visible

The fight for women’s rights is both transnational and temporal. One cannot discuss matters involving rape, sexual violence, and misogyny without confronting the elephant in the room — that for most women and girls, their rapist will be someone they know well, writes Kanav Narayan Sahgal.

Over the past few months, we have been witness to collective horror as cases of violence against women continue to rise, both in India and abroad. In India, the discovery of a female trainee doctor’s body at R G Kar Hospital on August 9, 2024, sent shockwaves throughout the nation, igniting outrage, protests, and demands for justice. But this incident is emblematic of a larger, systemic social problem.

In 2022, the National Crime Records Bureau (NCRB) reported that that year, the country witnessed a 4% increase in crimes against women, up from 4,28,278 in 2021 to 4,45,256 in 2022. Also, a majority of the cases were registered under ‘Cruelty by Husband or His Relatives’ (31.4%). Also, contrary to some claims, West Bengal had the third highest crime rate in the country, surpassed only by Maharashtra and Uttar Pradesh.

Meanwhile, across the Indian Ocean, the people of France also witnessed in horror, the public trial of Dominique Pélicot, a 71-year-old former electrician and now ex-husband of Gisèle Pélicot. His crime? For almost a decade, he invited at least 83 men, ranging in age from 26 to 74, into his home to rape his wife, whom he routinely drugged in a comatose-like state to facilitate the abuse.

The situation came to light by chance when the police seized his phone in an unrelated case — this intervention, however, came far too late, as the abuse had been occurring undetected for almost a decade from 2011 to 2020. Subsequent to Dominique’s arrest, the French police were only able to identify 50 of the 83 men involved in raping Gisèle; and of those 50, only 15 admitted to rape.

Simultaneously, back in India, the K Hema Committee report was made public on August 19, 2024, five years after it was initially submitted to the Kerala government. The report revealed horrifying accounts of sexual exploitation, discrimination, drug and alcohol abuse, wage disparity, and, in some cases, inhuman working conditions faced by women in the Malayalam film industry. What all these incidents have in common is one thing — they point to a pervasive, systemic, and insidious culture that dehumanises women and undermines their agency, regardless of their age, profession, nationality, or identity. The Pélicot incident, in particular, calls into question the positionality of certain Global North countries as “champions” or “leaders” of women’s rights.

Let’s not forget that while most of the world is advancing to safeguard women’s reproductive rights, the United States — arguably one of the richest and most powerful countries in the world — joins the ranks of only three other countries — El Salvador, Nicaragua, and Poland — to roll back those rights. More than two years later, those rights are still not secured nationally.

Therefore, the fight for women’s rights is both transnational and temporal.

Back in India, one cannot discuss matters involving rape, sexual violence, and misogyny without confronting the elephant in the room — that for most women and girls, their rapist will be someone they know well, including possibly their husband. This is both well-documented and well-recognised in policy circles, yet all three branches of government have done very little to protect married women from their violators.

I find it even more surprising that, even after the R G Kar incident, very little public attention was paid to this fact. In fact, the public narrative and outcry following the incident largely focused on two things: ensuring justice for the victim and her family, and enhancing protection and safety for doctors in the workplace, while omitting conversations about marital rape. Even the West Bengal government’s much-touted Aparajita Women and Child (West Bengal Criminal Laws Amendment) Bill, 2024, is silent on marital rape.

The constitutional validity of the marital rape exception is a matter that is still pending before the Supreme Court of India and it received renewed attention after the central government — just weeks after claiming to “support women” in light of the R G Kar incident — released a detailed affidavit positioning itself against criminalising marital rape. It should be noted that even after overhauling India’s centuries-old criminal codes with three new laws, purportedly to “decolonise” and “modernise” them, the marital rape exception — a legacy from our erstwhile colonial masters — finds new life in the Bharatiya Nyaya Sanhita, which replaces the Indian Penal Code.

It should, therefore, shake the conscience of every Indian that mere months after reeling from a horrific rape and murder case — one whose resolution seems meek due to evidence tampering — we are still debating whether to maintain a “rape exception” in our statute books.

We appear more concerned about “protecting the institution of marriage” than about safeguarding married women’s rights. We must remember that similar arguments were made before the courts last year in the context of same-sex marriage. There, the central government argued, among other things, that granting legal rights to queer couples could negatively affect the “foundation of both the existence and continuance of the State.” The government won that case, not on the merits of those arguments, but despite making them.

As we look back at the Pélicot trials, the Hema Committee report, the precarious situation of the R G Kar case, and the recent legal developments surrounding marital rape, it is clear that the fight for equality will be long and arduous.

The Justice Verma Committee report (2013) rightly pointed out that “the exemption for marital rape stems from a long-outdated notion of marriage that regarded wives as no more than the property of their husbands.” When will the Indian government and judiciary recognise this?

(The author is a communications manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])