Marriage and Rape are totally contrary actions, where the first involves consent and the other is an act of force. However, it may be surprising to note that not only there are plenty cases of marital rape, certain countries also have a ‘Marry the Rapist’ law wherein the rapists can escape criminal prosecution if he agrees to marry the rapist. Marital Rape refers to the act of having sex with one’s spouse by force and without proper consent.
In India, we do not have a prevailing ‘Marry the Rapist’ law. But the absence of such a law doesn’t deter the rapists, neither from raping nor from trying to escape prosecution by marrying the victim.
First A Victim, Later A Bride To The Perpetrator
In 2018. a former priest in Kerala was convicted of raping a minor and impregnating her. 2 years later, in June 2020, while serving his imprisonment, he filed a petition requesting to allow him to marry this victim and a parole for solemnizing his marriage with this victim. He added that he was willing to give the child his parenthood and share the responsibility of taking care of his child.
In July’20, a rape accused in Orissa, after being arrested under POSCO was granted bail by the Orissa High Court in order to marry the girl he had raped as the girl had now become an adult. The marriage was held while the accused was on a 30-day bail.
Leave alone rape cases, such was the occurrence in an acid attack case too where the Bombay High Court let free an attacker, who was previously sentenced to life imprisonment for throwing acid on a woman. He finally got married to the same woman after 8 years of imprisonment and was thus set free by the court.
In a recent incident, while hearing the case of a rape accused, the Chief Justice of India asked the accused if he would get married to the victim. The victim had been raped by the accused, a Central Government Employee, when she was in class 9 and the mother of the accused suggested that they get married once the girl turns 18. However, at the prescribed time, the accused refused. A minor raped at the age of 13-14, lives on with the pain and trauma, waiting to get married to her rapist when she turns 18. In this case, the rapist disagreed. But it is a matter to be thought of, as to how happy would she have been to get married to the man who forced himself on her and caused her physical and mental trauma. It may be noted that in a study conducted by the UN Population Fund, it was found that more than two-thirds of married women in India , in the age group of 15 to 49, have been beaten, forced to provide sex and even raped (downloadable ref report below). When there is already a problem of rape, sexual and domestic abuse by spouse, wouldn’t marrying the rapist push more women into the same league?
‘Marry Your Rapist’ Law
While it may not sound as the solution, but a rape accused getting married to his victim is nothing new. There are twenty countries in the world where marrying the victim allows the accused to escape criminal prosecution. Countries like Russia, Thailand, Kuwait and Venezuela are some of the countries where this law is prevalent. In Kuwait, it is legal to get married to the rapist, after a permission is sought from the guardian. Russia too exempts punishment to the rapist, if he agrees to marry his victim, if he is over 18 and the victim below 16. Such a law where the accused is let go of punishment just because he agrees to marry his victim, seems like a win win situation for him but a punishment for the victim. Such a law denies the victim a chance for justice and only further traumatizes them by asking them to accept a relationship with the person who caused them trauma.
A Map Of Marry-Your-Rapist Laws, by country, since 1980 is shown below:
Earlier countries like Egypt, Ethiopia, Jordan, Palestine, Lebanon, Tunisia and Morocco too had this law. However, Egypt repealed it in 1999, Ethiopia followed suit and repealed the law in 2005. It was repealed in Morocco in 2014, after a young woman chose to kill herself after a forced marriage to her rapist. A widespread outrage ensued resulting in the repealing this law in Morocco. The same has been done by Tunisia, Lebanon and Jordan too.
The Conundrum Of Courts Handling Rape Cases
India is one among the 36 countries, that does not criminalize Marital Rape while more than 104 countries have criminalized it. It is presumed that a wife gives perpetual consent for sex with her husband, once she enters into marriage with him. It is like marriage being a license to have sex. According to the National Crime Records Bureau’s report ‘Crime in India’ 2019, 70% of the women are victims of domestic violence. It goes without saying, that these are just the crimes that are reported.
Although, Marital Rape is not a crime in India, there may be some relief in the fact that we also do not have a ‘Marry the Rapist’ law. Though, we have seen instances as mentioned above where the same is still suggested. We may have amended our rape laws to make them stricter and our POCSO Act may call for death as a punishment for rape, yet the sad reality is that only 27.2% of those accused, get eventually convicted. Reason being; the kind of settlements that have been mentioned earlier.
A More Sensitized Approach?
No rape could possibly be a pleasant experience for the victim; whether it is by a stranger or by a husband. While the former maybe a one-off traumatic experience, the latter is a continuous event that could play havoc with the physical, emotional and mental well-being of the victim.
More often than not, suggestions of the rapist getting married to the victim are given with a view to ‘safeguard the honour’ of the victim and the family. But what about the psychological impact of this incident and the subsequent marriage, if any on the mind of the victim? Will the accused stop at the rape once or will the marriage arranged post the rape serve as a license for more such incidents in the future? What if after the marriage, having escaped punishment, the husband turned accused abandons her or worse still kills her? Does the court take into consideration the choice of the survivor of the rape? Or is it taken for granted that she doesn’t have any choice left anymore? Would she be given the choice to leave the past behind and move on in life, after a brief counselling and justice be served to her in form of a rigorous punishment to the perpetrator than a compromised marriage for her?
Likewise, when a woman is sexually abused by her husband, she may choose to stay quiet on account of all the victim shaming that may occur if she chooses to seek justice. Where does that place the victim under such circumstances? Helpless and unheard, how does she seek justice?
Like any other law, there may be some misuse of an upcoming law against marital rape too. But is that reason enough for us to deprive such victims from seeking justice? On one hand while we are unable to save women suffering from marital rape against such crime, is it sensible enough to allow the rapist to get married to his victim as a recourse to the crime? Is this a punishment to the rapist or to the victim?
Maybe it is time that our judiciary is more sensitive towards the mental, physical and emotional trauma that a rape victim (marital or otherwise) faces and pronounce relevant punishments than offer solutions under the garb of society and culture, which are nothing short of regressive and biased.