By Dinithi Gunasekera
“From this day forward, for better or for worse, for richer or for poorer, in sickness and in health, to love and to cherish, to love and honour you all the days of my life. This is my solemn vow.”
From varying Catholic and Christian wedding vows that promise the hand in holy matrimony, to the fourth step that acknowledges happiness and harmony by mutual love and trust among the seven steps (saptha padhi) around a flame of the Hindu faith, to the traditional poruwa ceremony of the Sinhalese symbolising harmonious unification, marriage has always been an institution held sacred and above all, “the greatest gift to any woman” as believed by some.
Alas, data uncovered by the 2019 Women’s Wellbeing Survey (WWS), Sri Lanka’s first national survey on violence against women and girls using standardised international methodology, conducted by the Department of Census and Statistics in collaboration with the United Nations Population Fund (UNFPA), suggests otherwise.
One in five (20.4%) ever-partnered women have experienced physical and/or sexual violence by an intimate partner in their lifetime. Two in every five women (39.8%) have experienced physical, sexual, emotional, and/or economic violence and/or controlling behaviours by a partner in their lifetime. Offenses of rape and sexual assault are not new to the headlines of this country, but what about non-consensual sexual relations within wedlock?
The idea of ‘but he’s your husband’
Straying from the façade of the safety net connoted by “holy matrimony”, throughout history until the 1970s, most countries granted a husband the right to have sex with his wife whenever he so desired, as part of the marriage contract. It was much later in the 20th Century, following women’s rights movements that pressed for women’s sexual autonomy, that marital rape was been criminalised in about 150 countries.
Attorney-at-Law Maneesha Perera brought to our knowledge that marital rape has not been an offense since the beginning of time. It was only subsequently adopted as an offense in other jurisdictions, even in the UK in 1991. However, Perera stressed that it is important to note that they have changed with time.
“In an ideal scenario in which both parties are open to satisfying each other’s needs and as long as whatever it may be is mutually agreeable to the couple, nobody else has the right to say what is right and wrong in a marriage,” said activist and Women In Need (WIN) Founder Caryll Tozer, speaking to The Sunday Morning Brunch.
“Marital rape is rape,” stressed Tozer. “It's valid even if the husband holds his wife down and pushes her, and if he imposes sex by inflicting pain towards her non-consensually.
“Making love isn’t supposed to make somebody cry. It’s an act based on procreation, but it’s also an act of emotion and affection for the other. If something of the sort is carried forth without implied consent, forcefully, by threat or coercion, it causes harm.”
Physical and sexual violence occurs together in the form of battering and rape, explained Tozer. There is also obsessive and sadistic rape which involves torture and perverse actions the other party does not desire. Most commonly found is forced rape wherein sex is seen as something that is entitled to one party.
“The stories of marital rape, more often than not, go like this,” related Tozer from her extensive history of fighting against violence against women. “The woman would not complain about it as she thinks that ‘he is my husband’. If she happens to tell another person, many would say ‘but he’s your husband’. But if he is your husband, he is not supposed to disregard your feelings, would not abuse you, and would not dictate what you should be doing instead of upholding a mutually respected relationship.”
Where the law stands
[caption id="attachment_109450" align="alignright" width="247"]
"We don't have enough people sympathising with the cause as marriage is considered sacred. You’re no longer anybody’s problem but your husband’s" Attorney-at-Law Shalini Fernando[/caption]
Perera stated that from a Sri Lankan legal standpoint, marital rape is not an offense. The Penal Code provides only one section that grants a penalty for a married person to be convicted of rape – i.e. if the parties in concern are married but judicially separated – but other than that, it does not cover relations after marriage.
“According to our Penal Code, what is defined as rape is very limited,” explained Perera. “So limited that only a biological man can legally commit rape to a woman by definition, limiting it to non-consensual vaginal intercourse. Everything else outside that limited definition goes under the term ‘grave sexual abuse’.”
Currently, it is a vicious cycle of the victim keeping quiet as it is seen as taboo and they have no other choice, and the perpetrator is motivated, shared Attorney-at-Law Shalini Fernando.
Call for reforms
The law in Sri Lanka regarding general sexual offenses is by itself primitive and in need of gross reforms, according to many.
“The last amendment which was comparatively progressive dates back to 1995, where certain new offenses were introduced to the Penal Code such as gang rape,” revealed Perera.
“Before marital rape, there needs to be a lot of reform on the point of rape itself. Today, we recognise members of the LGBTQI+ community. You can’t convict or declare a situation of rape as what it is for these individuals within the current limitations of the definition.”
A further problem highlighted by both attorneys-at-law was the time-consuming legal process. Both related professional experiences with rape cases reaching trial over the span of 10 years. Courts are overloaded and the system is not equipped. Most people do not even know if they can get legal aid as there are ample information gaps.
“Furthermore, ‘consent’ is not defined in the Penal Code. There have been case laws that have defined what consent is. In the definition of rape, there is an explanation under Section 363 saying that physical evidence of resistance is not necessary to prove the absence of consent. However, there have been cases where the judges have looked for such evidence.”
Perera added that there are both pros and cons of set definitions, as the lack of them leaves space for more loopholes for legal practitioners.
Another point of interest regarding marital rape is the minimum age for marriage in Sri Lanka under the Muslim Marriage and Divorce Act (MMDA) which contradicts with the age of 16 years as the general age of consent.
A tedious way out
Fernando shared instances of how parents treat most survivors of marital rape and domestic violence who have taken their children to their parents’ houses. The parents would not claim them and advise them to
go back to the husband and state that he is now hers, adding that their daughter dare not get a divorce.
Fernando, on a hopeful note, explained that there is always a way to get relief towards the end of justice. She elaborated that although you cannot convict under the section of rape, a case can be filed under domestic violence.
Adding to Perera’s concern in regard to women in lower-income brackets, Fernando stressed how this is equally problematic among the elite.
“In my experience, the case would often be settled before it reaches court. Things get swept under the rug. There are instances where they would rather pay off unthinkable amounts to survive the damage to reputation. We don't have enough people sympathising with the cause as marriage is considered sacred. You’re no longer anybody’s problem but your husband’s,” she said.
Comprehensively drafted statutes are often deemed useless by the public, according to Fernando, due to poor implementation. “The drafting of laws is an issue, but you can work around it. From the very first point, i.e. the police system, the victim is not protected and is shamed.”
Stemming from the grassroots
[caption id="attachment_109454" align="alignright" width="269"]
"In the grand scheme of things, a lot of this stems from the sense of impunity male children grow up with and unfortunately, the mothers play a significant role in this, even more so than the father at times" WIN Founder Caryll Tozer [/caption]
“In the grand scheme of things, a lot of this stems from the sense of impunity male children grow up with and unfortunately, the mothers play a significant role in this, even more so than the father at times. In our culture, when a male child is born to a family, he is immediately ‘the king of the house’. We teach things such as that the women should only be sweeping, cleaning, cooking, and keeping silent,” analysed Tozer.
“You’re setting a precedent that the male child thinks that the woman’s duty is to tend to their every need. I agree that the mother ought to nurture her children, but the nurturing should not be gender-specific. This is why men behave as they do when they step into society,” she explained.
“Since yesteryear, we have been a matriarchal society, but with a patriarchal lore wherein the male went to work and the mother led the household. Even today, this proves true in some aspects and this why I hold women more responsible for the upbringing of male children.”
Tozer uncovered the presence of both feminine and masculine energies and the importance of embracing them.
“For boys, if they keep everything bottled up as they are taught, it is no question why the first reaction to anything is aggression. Boys can cry and girls can speak up. I truly believe that if we stop treating our boys like they are something special and treating our girls like they are ‘the donkey that is supposed to carry all the weight’, we can attack domestic violence to marital rape at the root.”
Need for action
The WWS (2019) additionally uncovers pointers that highlight unequal relationship power roles. 47.5% of women agree that “a man should show he is the boss” while 46.5% agree that “a good wife obeys her husband even if she disagrees”. 39.5% believe that it is the wife’s obligation to have sexual relations with the husband even if she does not feel like it. While most of these ideologies were among uneducated segments of women, awareness of the options that are available to survivors of these gross crimes is important.
Among many organisations that are safe places for vulnerable women such as Shanthi Margam, WIN has been the longest player on the field with a team of 15 lawyers and 24 counsellors who specialise in the field of gender-based violence (GBV) and deal with thousands of GBV cases annually, free of charge. The presence of active counselling services that protect confidentiality is noteworthy.
“So many women call us from their washrooms in agony, saying ‘he’s beating me. What do I do?’ But they never want to confront the Police and want help from their home soil. But counselling empowers them and helps them to vent it out. Helps them see options,” concluded Fernando.
Tozer introduced us to “Wisdom Wednesdays”, a forum conducted by a group of women on the basis of national unity and women's empowerment, which believes that, “if you empower women to believe that you are all that you are, then no one can make you feel any less than you are”.
“This country is failing miserably by not taking care of our women and not giving them a place that is side by side with the man. The greater impact it has on households is you begin to fear your husband. Every time you hear him approaching, you hope your children will not hear you. Then you would live your life with post-traumatic stress disorder (PTSD) and develop clinical depression in the long run.”
If the women are taught that they are less than useless, what would they be teaching the children?
Main pic credit: Photo Zoriana Stakhniv on Unsplash
"We don't have enough people sympathising with the cause as marriage is considered sacred. You’re no longer anybody’s problem but your husband’s" Attorney-at-Law Shalini Fernando[/caption]
Perera stated that from a Sri Lankan legal standpoint, marital rape is not an offense. The Penal Code provides only one section that grants a penalty for a married person to be convicted of rape – i.e. if the parties in concern are married but judicially separated – but other than that, it does not cover relations after marriage.
“According to our Penal Code, what is defined as rape is very limited,” explained Perera. “So limited that only a biological man can legally commit rape to a woman by definition, limiting it to non-consensual vaginal intercourse. Everything else outside that limited definition goes under the term ‘grave sexual abuse’.”
Currently, it is a vicious cycle of the victim keeping quiet as it is seen as taboo and they have no other choice, and the perpetrator is motivated, shared Attorney-at-Law Shalini Fernando.
Call for reforms
The law in Sri Lanka regarding general sexual offenses is by itself primitive and in need of gross reforms, according to many.
“The last amendment which was comparatively progressive dates back to 1995, where certain new offenses were introduced to the Penal Code such as gang rape,” revealed Perera.
“Before marital rape, there needs to be a lot of reform on the point of rape itself. Today, we recognise members of the LGBTQI+ community. You can’t convict or declare a situation of rape as what it is for these individuals within the current limitations of the definition.”
A further problem highlighted by both attorneys-at-law was the time-consuming legal process. Both related professional experiences with rape cases reaching trial over the span of 10 years. Courts are overloaded and the system is not equipped. Most people do not even know if they can get legal aid as there are ample information gaps.
“Furthermore, ‘consent’ is not defined in the Penal Code. There have been case laws that have defined what consent is. In the definition of rape, there is an explanation under Section 363 saying that physical evidence of resistance is not necessary to prove the absence of consent. However, there have been cases where the judges have looked for such evidence.”
Perera added that there are both pros and cons of set definitions, as the lack of them leaves space for more loopholes for legal practitioners.
Another point of interest regarding marital rape is the minimum age for marriage in Sri Lanka under the Muslim Marriage and Divorce Act (MMDA) which contradicts with the age of 16 years as the general age of consent.
A tedious way out
Fernando shared instances of how parents treat most survivors of marital rape and domestic violence who have taken their children to their parents’ houses. The parents would not claim them and advise them to
go back to the husband and state that he is now hers, adding that their daughter dare not get a divorce.
Fernando, on a hopeful note, explained that there is always a way to get relief towards the end of justice. She elaborated that although you cannot convict under the section of rape, a case can be filed under domestic violence.
Adding to Perera’s concern in regard to women in lower-income brackets, Fernando stressed how this is equally problematic among the elite.
“In my experience, the case would often be settled before it reaches court. Things get swept under the rug. There are instances where they would rather pay off unthinkable amounts to survive the damage to reputation. We don't have enough people sympathising with the cause as marriage is considered sacred. You’re no longer anybody’s problem but your husband’s,” she said.
Comprehensively drafted statutes are often deemed useless by the public, according to Fernando, due to poor implementation. “The drafting of laws is an issue, but you can work around it. From the very first point, i.e. the police system, the victim is not protected and is shamed.”
Stemming from the grassroots
[caption id="attachment_109454" align="alignright" width="269"] "In the grand scheme of things, a lot of this stems from the sense of impunity male children grow up with and unfortunately, the mothers play a significant role in this, even more so than the father at times" WIN Founder Caryll Tozer [/caption]
“In the grand scheme of things, a lot of this stems from the sense of impunity male children grow up with and unfortunately, the mothers play a significant role in this, even more so than the father at times. In our culture, when a male child is born to a family, he is immediately ‘the king of the house’. We teach things such as that the women should only be sweeping, cleaning, cooking, and keeping silent,” analysed Tozer.
“You’re setting a precedent that the male child thinks that the woman’s duty is to tend to their every need. I agree that the mother ought to nurture her children, but the nurturing should not be gender-specific. This is why men behave as they do when they step into society,” she explained.
“Since yesteryear, we have been a matriarchal society, but with a patriarchal lore wherein the male went to work and the mother led the household. Even today, this proves true in some aspects and this why I hold women more responsible for the upbringing of male children.”
Tozer uncovered the presence of both feminine and masculine energies and the importance of embracing them.
“For boys, if they keep everything bottled up as they are taught, it is no question why the first reaction to anything is aggression. Boys can cry and girls can speak up. I truly believe that if we stop treating our boys like they are something special and treating our girls like they are ‘the donkey that is supposed to carry all the weight’, we can attack domestic violence to marital rape at the root.”
Need for action
The WWS (2019) additionally uncovers pointers that highlight unequal relationship power roles. 47.5% of women agree that “a man should show he is the boss” while 46.5% agree that “a good wife obeys her husband even if she disagrees”. 39.5% believe that it is the wife’s obligation to have sexual relations with the husband even if she does not feel like it. While most of these ideologies were among uneducated segments of women, awareness of the options that are available to survivors of these gross crimes is important.
Among many organisations that are safe places for vulnerable women such as Shanthi Margam, WIN has been the longest player on the field with a team of 15 lawyers and 24 counsellors who specialise in the field of gender-based violence (GBV) and deal with thousands of GBV cases annually, free of charge. The presence of active counselling services that protect confidentiality is noteworthy.
“So many women call us from their washrooms in agony, saying ‘he’s beating me. What do I do?’ But they never want to confront the Police and want help from their home soil. But counselling empowers them and helps them to vent it out. Helps them see options,” concluded Fernando.
Tozer introduced us to “Wisdom Wednesdays”, a forum conducted by a group of women on the basis of national unity and women's empowerment, which believes that, “if you empower women to believe that you are all that you are, then no one can make you feel any less than you are”.
“This country is failing miserably by not taking care of our women and not giving them a place that is side by side with the man. The greater impact it has on households is you begin to fear your husband. Every time you hear him approaching, you hope your children will not hear you. Then you would live your life with post-traumatic stress disorder (PTSD) and develop clinical depression in the long run.”
If the women are taught that they are less than useless, what would they be teaching the children?
Main pic credit: Photo Zoriana Stakhniv on Unsplash