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COMMENT

Married, and mostly helpless

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'The Rape of Proserpine' by the 17th century Italian artist, Padovanino

Rape is a crime of violence not of sex. Many women continue to believe that men can force them to have sex against their will. Many men continue to act as if they have that right. In every sense they do. Our laws of crime, evidence and punishment do not prosecute marital rape. Our law fails to provide equal protection from rape to all women. The law of rape has focused its greatest distrust not on all victims but only on some. There is absence of case law or discussion in legal commentary books on marital rape as its prosecution is 'excepted' in Section 375, Indian Penal Code. Rape law reform must expunge rape myths and evidentiary distrust in the law.

In 1993 marital rape became a crime in all 50 states of the United States. English law foundations of our laws recognised a husband's right to use as much force or coercion as he pleased against his wife, changing only recently. A woman had to prove her lack of guilt based on the myth that she desires to be forcibly ravished, and on the sinfulness of women's refusal to have sexual intercourse with their husbands. Ignoring throughout, the burden and humiliation of prosecuting a rape case, the trauma of living the shock, intense fear, depression, suicidal ideation, broken bones, black-eyes, sexual and physical wounds, long term eating and sleep disorders, intimacy problems, negative self-imaging and sexual dysfunction. The underlying theme is distrust of women.

Due to this approach, in trial practice, courts look for proof of actual physical resistance by the victim, as well as substantial force by the man, corroboration of victim's account, placing on prosecution the burden of standard of proof of beyond reasonable doubt, penalises women who do not complain promptly, and until only very recently, insist as relevant a woman's prior history of un-chastity. Limits on a defense counsel's ability to ask questions or present evidence about a woman's sexual past might be upheld in a stranger case, but never in a simple acquaintance rape. Women's sexual past is viewed as relevant to the complaint being taken seriously as victim's chastity is co-related to the perception of seriousness of rape.

The law dislikes stranger perpetrated rapes, but it distrusts the victim who claims to have been raped by a friend or neighbour or acquaintance. In marital rape even more. These rapes if they are reported at all, are less likely to result in conviction. That marital rape survivors are less likely than other survivors of violence to report their assaults to formal service providers, friends, or family members, is grounded in studies in the US that show women who are raped by acquaintances are less likely than those raped by strangers to report their assaults. Prior relationship cases like marital rape cases are considered as truly 'private' and so as less deserving of attention, and not the business of the prosecutorial system. By denying the request of one of the parties (the complaining witness ) that it not treat the relationship as private, and that it intervene to save her, to respect privacy in this context is to respect not voluntary relationships, but the abuse of greater power. The defendant is considered less blameworthy because they often involve a claim of right where attacks by strangers do not. The claim of right argument means that if a woman has consented to sex in the past, then the man has a continuing right to sexual satisfaction. These cases often involve claim of contributory fault by the complainant, while offenses by strangers do not. In a non-stranger assault both parties claim the other started it, both may even file complaints, and both may be dismissed. But, the same inquiry in rape conveys a different message. In rape when we ask "who started it?" we imply that if the woman agreed to give the man a ride home, or to go to his apartment, agreed to drink, or failed to react strongly enough to sexual suggestions and overtures, she is to blame for her subsequent rape and should not complain. In protecting marital rape fictional consent trumps over fact. Rape is different from assault or robbery or burglary. In robbery, for example, the claim that the victim left the house front door unlocked is not a defense of consent to the taking. Evidentiary rules, like resistance requirements, serve to enforce the "no means yes" philosophy of social relations and to assure men broad sexual access in acquaintance situations.

In acquaintance cases the defense rarely asserts (consent cases) that the victim is mistaken, that works for stranger cases. Rather the victim is portrayed as delusional, a vengeful liar, a gold digger, attention seeker and an unpaid prostitute.
Delay in reporting casts a suspicion on the bona fide of the charge, that the woman should not be believed.

Women are at high risk of being raped by their partners when the men view them as 'property', when they are in physically violent relationships, are pregnant, ill or recovering from illness, and women separated and divorced. Women who are battered are at greater likelihood of being raped by their spouse. Specific gynecological consequences of marital rape include vaginal stretching, miscarriage, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV.
The reasons for the withdrawal of complaints range from intimidation by the defendant to private resolution of the dispute due to the inadequacy of imprisonment (which is all the criminal justice system can offer), as a remedy for an individual who is dependent on her attacker (a battered wife or a joint family set up for example).

The writer is a lawyer.

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