Marital Rape and the Exception Clause in Bangladesh: Revisiting Consent Within Marriage

Introduction

Whether a husband can be convicted of rape for the carnal knowledge of his wife remains the most troublesome and difficult topic in South Asian criminal law. Bangladeshi law still adheres to the conventional and orthodox marital rape anomaly in Section 375 of the Penal Code, 1860. This part specifies rape as sexual intercourse by a man with a woman other than his wife, supplied she is above a specific age. This contradiction is a result of the historical presumption of stable and constant permission from marriage. This assumption is now being eroded by the principles of the constitution, the worldwide understanding of human rights, and the modern discourse on self-determination.

In this article, it is argued that the marital rape anomaly in Bangladesh is contradictory to the constitutionality of equality, dignity and personal freedom. It is argued further that by sustaining the marital rape anomaly, the existing safeguards for the protection of women from sexual violence are eroded. The old patriarchal notion of marriage gets strengthened as it has perpetuated with marital rape anomaly. In the initial part, the article examines the existing legislative regime under the rape law in Bangladesh, discusses constitutional and human rights aspects of anomaly and in the end suggests ways to ensure consent in marriage as a fundamental, core, elementary, essential, paramount, and fundamental legal rule.

The Legal Framework Governing Marital Rape in Bangladesh

Bangladesh law of rape predominantly falls under part 375 of the Penal Code, 1860. This section clearly lays down what amounts to rape through several conditionings with a combination of lack of consent, force, deceit and inability. However, it also implies that sexual intercourse of a man with his own wife does not amount to rape, if the wife is not under 13 years of age. While the minimum age has since then been lowered through later legislation and observation by the courts, the marital rape exemption continues to remain.

The legal reasoning for this oddity lies in the English standard common law: it was Sir Matthew Hale who held in 17th century that a husband could not rape his lawful wife; because marriage conferred irrevocable consent. Colonial penal codes incorporated this into the Penal Code governing all of British India and the unchanged law continued to be the Penal Code of Bangladesh even post independence.

The continuity of the marital rape anomaly therefore reveals an underlying conceptualization of the institution of marriage at law and society as a hierarchical union of male dominance and female subordination, where, upon marriage, women have irrevocably consented to intercourse and where sex within marriage is considered a domestic issue rather than a criminal offence. Although women can have recourse to remedies under the laws handling with cruelty and domestic violence, these do not equate non-consensual marital sex with rape.

The Domestic Violence (Prevention and Protection) Act, 2010, was a vital and essential and required measure that acknowledged the commonness of violence in the home. This Act incorporates physical, mental and sexual abuse in its definition of domestic violence. Despite the enactment, it is largely civil in nature and does not address the criminalization of rape but alternatively aims at ordering protection. Consequently, the legal regime continue to omit married women from the level of physical protection afforded to unmarried women.

The anomaly seems glaring and blatant only if contrasted with other legal advances. A growing recognition of women’s rights in Bangladesh through court decisions and legislation on avoidance of child marriage, harassment in workplace, personal laws etc., can be contrasted with a criminal law that operates under a 19th century patriarchal notion. This would violate the overall constitutional promise of equality and human dignity.

III. Constitutional and Human Rights Concerns

However, the problem of marital rape problem does further complicate serious constitutional problems in the Constitution of the Peoples’ Republic of Bangladesh. Art 27 promises equality before law and equal protection of law, whereas Art 28 provides that ‘Women shall have equal rights with men in all spheres of public life.’ Creating two distinct classes of rape victims, the law denies protection from rape to a married woman whereas not denying such to an unmarried woman seems incredibly difficult to justify constitutionally with equality principles.

Second, Article 32 guarantees the right to life and personal liberty. Contemporary understanding of the right to personal liberty is evolving to include the right to bodily integrity, privacy and decisional autonomy. Rape involves imposition of sex upon a person’s bodily autonomy whether or not that person is married. Failure to recognize the crime of marital rape is a deprivation of the married woman’s personal autonomy, and creates an artificial distance between permission and legal relevance.

The anomaly also contravenes Bangladesh’s international obligations. It is state party to the Convention on the Elimination of All Forms of Discrimination against Women, which obliges the state to eliminate discrimination against and violence perpetrated against women. Repeatedly, marital rape anomalies have been cited as contravening equality between men and women, and dignity of women, by international human rights bodies. Likewise, the UN Declaration on the Elimination of Violence against Women considers marital rape as one form of violence that the state has to prevent through all appropriate measures.

Comparative legal development again shows the increasing global movement away from the marital rape deviation. The broad marital rape immunity in the United Kingdom was removed in 1991 with R v R. The House of Lords accepted that the fiction of perpetual marital consent no longer reflected society’s circumstances. Other South Asian and non South Asian jurisdictions have also begun criminalizing marital rape or limiting spousal immunity. They show that marital and consent are no longer inextricably and restrictively linked in law.

Criminalization’s opponents consistently argued that legislation of marital rape would threaten family stability or lead to abuse of process. However, a very similar case was used against a number of women’s rights legislation such as domestic violence laws and sexual harassment laws. A danger of abuse of process could never be a good reason not to protect genuine victims. Criminal law inherently has procedural safeguards, standards of proof, and judicial discretion to avoid false accusations.

A further claim is made in the face of reform: that sexual relations are an essential element of marriage and the legal criminalization of this practice will disrupt marital privacy. Nonetheless, the notion of marital privacy can never act as a shelter to violence. Democratic constitutions do interfere in private life whenever serious harm is caused; domestic violence and child molestation are clear examples. In fact, the defense of bodily integrity in marriage will reinforce, not undermine, the morality of the matrimonial relationship since this institution relies on mutual respect and consent.

The Need for Reform and Conclusion

The continued presence of the marital rape anomaly shows the gap between constitutional ideals and criminal law practice in Bangladesh. Reform is essential and required not solely to modernize the Penal Code but moreover to affirm the equal legal status of married women. The first and most necessary and fundamental reform would be the repeal of Exception 2 to part 375 of the Penal Code. Consent should persist the central element in determining rape regardless of the relationship between the parties.

In addition to legal reform, the latter must be accompanied by both procedural guarantees and organizational support structures. Specialized training regarding a gender-sensitive approach to sexual offenses should be provided to police officials, prosecutors and judges. Victim support services including psychological assistance, legal aid and medical services must be reinforced in order to guarantee access to justice. Campaigns on sensitization should also be crucial given the social attitudes towards marital relation which may discourage reporting.

Concurrently, any reform must accommodate the practical issues of prosecution of sexual offences in marriage; such as the issues surrounding evidence, privacy and social stigma, have to be delicately considered in law. These concerns should however, not be treated as something exclusive of instances of rape in marriage, nor be given as a reason for granting complete immunity from the criminal law in such circumstances. The criminal justice system has always tried criminal offenses within domestic environments using witness statements, medical evidence and attendant facts.

This article has argued that marital rape anomaly in Bangladesh is inconsistent with the constitutional guarantees of equality, dignity and personal liberty. It also contradicts international human rights norms and the present, updated, definition of consent. Marriage must not be construed as an open license for non-consensual sexual act. Marital rape should be Criminalized to become a necessary step in the furtherance of women’s rights, the right of autonomy over one’s own body and in keeping with the constitution of Bangladesh; law needs to adapt. It needs to acknowledge that consent in marriage is just as important.

Reference(S):

1. The Penal Code, 1860 (Bangladesh).
2. The Constitution of the People’s Republic of Bangladesh.
3. Domestic Violence (Prevention and Protection) Act, 2010 (Bangladesh).
4. Convention on the Elimination of All Forms of Discrimination Against Women, 1979.
5. R v R [1991] UKHL 12.
6. Matthew Hale, Historia Placitorum Coronæ (1736).
7. United Nations Declaration on the Elimination of Violence Against Women, 1993.