“Marital Rape! Are you sure?
Does such a term exist?”
This was the reply I received when I asked an undergrad female student of a prominent private university in Bangladesh. Actually, this is more or less the scenario for the entirety of Bangladesh.
Marital rape is an almost unrecognised crime under the current legal regime. Many countries consider it a crime, but it isn’t so in Bangladesh nor any other countries in the sub-continent. Social taboos and certain misconceptions deriving from Islamic knowledge (Quran and Hadith verses) are also responsible for silently condoning this behaviour under Bangladeshi law.
Marriage has traditionally been regarded as implying consent by the wife to grant sexual relations to her husband whenever he desires. Since the concept of ‘marital rape’ does not exist legally, it is assumed a woman cannot be raped by her husband since the ‘crime’ of rape is legally defined as forced sexual intercourse on someone other than the wife of the person accused. It is clear that if a man forcibly enjoys sexual intercourse with his wife, it should fall under marital rape.
The concept of marital rape was first reported in 1736 when the Chief Justice of England Sir Matthew Hale first commented, ‘But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.’
From then on, marital rape exemption has been allowed almost all over the world (a reason behind this may be that during that era, much of the world was dominated by British colonial rule). As a common-law country, Bangladesh inherited this exemption. Moreover, countries of the Indian sub-continent also do not recognise marital rape as a crime given the exemption.
Section 375 of the Penal Code of Bangladesh only considers marital rape if the wife is under the age of 13 years, with Nari-O-Shishu Nirjatan Domon Ain, 2000, and Paribarik Shohingshota (Protirodh-O-Shurksha) Ain, 2010 making no other mentions. But, the 2010 act merely mentions sexual violence relating to the wife’s social status and honour.
Interestingly, the great irony of fact is that almost every Islamic country did not recognise marital rape, though some having recognised the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) along with the UN and the international community’s pressure, outlawed marital rape after the passing of time (i.e., Afghanistan and Somalia).
In contrast, almost all European and western nations outlaw marital rape and disregard the marital rape exemption. For example, the UK outlawed marital rape exemption in 1991; USA outlawed it in 1971, though some of their individual states still do not recognise the crime.
If we look at the definition of rape, we see the same crime, but the difference is nobody seems to be allowed to rape one’s wife but her husband. One can rape one’s life partner, but no one else.
For this reason, British liberal feminists John Stuart Mill and Harriet Taylor attacked marital rape as a gross double-standard in law, and as a central facet to the subordination of women. They found that marital rape was more devastating than rape by a stranger for its more harmful effects on women – the rapist is her own husband, with whom she has to spend the rest of her life!
So, my bone of contention is, if European and other nations enact laws against marital rape, defining it as a crime, why do we avoid making a simple amendment to our current laws?
Or, empirically speaking of Bangladesh, we see that without raising one’s voice (more or less with violence) it is impossible to enact any new laws.
Is it too late to make some noise? What are we waiting for? Let’s make some noise and recognise marital rape as a crime.