It was a few years ago that a friend of mine was asked the following question by a colleague:
‘Suppose you were to be raped, would you not prefer to be raped by your husband or a friend, rather than a complete stranger?’
Now while this statement is callous and inappropriate on several levels, to me it was an illustration of the huge gulf between the way people with and without empathy view rape. This gulf is hardly noticeable when people are talking about a brutal gang-rape, which inflicts grievous injuries on the victim. In such a situation it is very easy for most people to agree that what happened was terrible, and that the perpetrators should be given swift punishment. The gulf, however, becomes increasingly visible when some of the ‘typical’ features of a rape are missing. A few common examples are when the victim happened to be out late, or when she was drunk or had been in a prior relationship with the accused.
Our collective consciousness, fed on decades of television and cinema portraying rape as, ‘izzat lootna’ (robbing of honor) with a ‘hapless’ ‘chaste’ victim, just cannot process the idea that rape is something that can happen to a woman who wears dresses, has a boyfriend, or goes to bars.
One such contentious issue, which is a product of our inability to process what we consider ‘atypical’ rapes, is the idea of marital rape. To be absolutely clear, under Indian law, forced intercourse between a man and his wife is not rape, unless she is less than 15 years of age, or unless the wife is living separately. Hence, marital rape is not really recognized under Indian law, except in these two circumstances.
Whenever I have articulated the idea that marital rape should be a punishable offence, I have made even the most well-meaning men uncomfortable.
Some reasons for this discomfort are genuinely products of flawed logic. Try and tell them that marital rapes happen, and that they should be punished just like any other rape and you will have people bring in the issue of the misuse of Section 498A of the Indian Penal Code into the equation. When you try to tell them that statistically it has not really been established that Section 498 A is abused more than any other law, they will tell you about an uncle who had to go to jail because his daughter-in-law filed a false complaint. By this time the conversation would have shifted away from rape, to how educated women misuse laws, and the women laws are really supposed to help (i.e. hapless chaste women) are not really getting the benefit of the law.
What people who engage in this form of a ‘Straw Man’ debate completely forget is that not recognizing marital rape is an invidious discrimination against women who are married, and perpetuates the idea that it is acceptable for husbands to violate the bodies of their wives. Given this situation the law must provide a remedy, and it is lamentable that the Criminal Law Amendment Act of 2013 did not take the opportunity to do this.
We must, however, examine one fear regarding the recognition of marital rape that has some merit. I feel that while the ‘preservation of the family’ argument is generally believed to be the reason marital rape has not been recognized as a crime, another reason is the nature of the of proof under Indian Law for rape cases. Under Section 114 A of the Indian Evidence Act where sexual intercourse by the accused is proved, and the woman states in her evidence that she did not consent, the court shall presume that she did not consent.
This shifts the burden of proof on the accused to prove that he is innocent and that the intercourse was consensual. The reason for this reversed burden of proof, of course, lies in the social and political contexts in which rapes take place, and is meant as a shield for a survivor who is already faced with the difficult prospect of a trial. Our law makers have attempted to save a victim from the arduous process of having to prove that she did not in fact consent, in a criminal justice system that is already extremely hostile to the victim. Even though this is a departure from the traditional burden of proof, most reasonable persons can see the rationale behind this.
However, where this provision becomes problematic is while looking at the issue of marital rape. Traditionally, in the Indian legal system, the fact of marriage is adequate to prove what is termed as ‘sexual access’ i.e. proving that sexual intercourse took place becomes extremely easy. If you combine this with the fact that there is a reversed burden of proof regarding consent, we arrive at a very tricky situation.
In the event that the accused is in fact innocent, it will be nearly impossible for him to prove his innocence due to this double presumption. It is this possibility that adds fire to the ‘the man will be damned’ fears of certain groups of people. Irrespective of whether these fears will come true, there is a reasonable possibility of an innocent man getting trapped due to the reversed burden of proof.
Of course this argument does not mean that marital rape should not be recognized as a crime, or should be given a lighter punishment, but that we need certain procedural safeguards in case of marital rape.
I understand that this suggestion will be incendiary since there will be a section of people who will see this as an attempt to draw an artificial distinction between marital rape and other kinds of rape (something that I criticized at the beginning of this article). There will also be people who will think I am buying into the idea that women actively misuse laws. I am trying to do neither. I do not think there is any evidence to prove that women misuse laws any more than men, or that marital rape is in any way a ‘lesser’ offence. But as a person who values liberty, I approach all reversals of the burden of proof with some skepticism. Due to developments in our rape jurisprudence, and the hostile nature of our criminal justice system, we had to make changes in the burden of proof. In the case of marital rape, I feel that it is this reversed burden of proof (combined with the presumption on access) crossed a line and becomes draconian. This burden of proof is, in my opinion, one of the things preventing the law-makers from bringing marital rape into the statute book, and till we bring procedural safeguards on the table, marital rape will not be recognized as a crime.
I understand that these procedural safeguards will shift the burden back to the victim (merely because she is the wife of the accused), and this situation is far from satisfactory. But marital rape is a complex issue, and I do not anticipate that there will be a clean solution that will satisfy everyone. This article was an attempt by me to call for a certain amount of pragmatism, and maybe highlight the need to reflect on the anomalies that reversed burdens of proof throw-up. There is nothing I would love more than those with better ideas, coming up with a solution to this problem. But given the time of outrage we live in, what we need to most is to start a dispassionate dialogue.