BY Ruwan Laknath Jayakody
The business of marriage is marketed as an earthly paradise akin to heaven; yet, trouble is often never too far away. Peering through the Venetian blinds of the boudoirs of those citizens confined within the gilded cage of wedlock, one glimpses, in these theatres of cruelty, the kinky politics of sexual propriety and the dark fantasia of the patriarchy at play.
It is a Grand Guignol saga of bottles shoved up bodily orifices, extreme gonzo pornography, viagra, young lust and carnal impulses, Lady Godiva, the Madonna-whore complex, Stockholm syndrome, and morbid jealousy. So, as the German taskmaster Friedrich Nietzsche would have it, bring out the whips, as there are those shades of grey within the institution of contractual marriage, the eternal rectitude of Sodom, and the “till death do us part” oblation to sanctimony.
The private purgatory of marital rape, therefore, requires that it be criminalised and recognised as an offence.
Leading women’s rights organisation Women in Need (WIN), through Attorney-At-Law (AAL) Dilrukshi De Alwis, confirmed to the author back in late November 2014, that out of the number of daily walk-ins (180 victims) to their nine crisis centres located islandwide (20 victims per crisis centre), 45 victims (five victims per each crisis centre) were subjected to marital rape, which incidentally, according to then-Secretary to the Ministry of Child Development and Women’s Affairs Eric W.F. Illayapparachchi, who spoke to the author, was a “common matter”, and about which, as then-Secretary to the Ministry of Justice Kamalini De Silva, speaking to the author, put it, “the Justice Ministry was really not looking at, as there was no serious lobby for it”.
Marital rape, also known as spousal rape and rape in marriage, is non-consensual sex (rape) in which the perpetrator is the victim’s spouse.
“Clearly, sexual intercourse can only be considered as consensual if consent is asked, obtained, and given. In law, there is nothing called passive consent. Merely because a woman entered into the bonds of matrimony does not mean that it takes away her rights and the need to obtain consent during intercourse. The consent or complete voluntariness of the body and mind of both the parties is necessary,” said former Court of Appeal President and SC Judge Justice Shiranee Tilakawardane, speaking to the author.
“The very idea of intercourse, a deeply intimate act done without the consent of both partners, is an act of violence that is a violation of the rights of choice and self-determination guaranteed by the Universal Declaration of Human Rights. Permission should be asked and articulated verbally. It cannot be inferred and assumed.
“Canadian Supreme Court (SC) Judge, Justice Claire L'Heureux-Dubé’s position in R vs. Ewanchuk (The Queen v. Steve Brian Ewanchuk [1999] 1 S.C.R. 330 - in a concurrence joined by Justice Charles Doherty Gonthier) is a case in point. At the point of penetrative sex, was consent given? Consent during pre-coitus or foreplay does not count.”
She added that violence is the manifestation of discrimination and inequality where one party abuses their power and dominates the other, physically, emotionally, economically, and mentally. Such acts are violative of the individual’s own guaranteed rights and freedoms.
“The law in Sri Lanka evolved from the Roman Dutch Law, which considered women as mere chattel, possessions and property with no rights to freedom and relegated to mere vessels, in particular of women in the bonds of marriage, as objects to be used and discarded. Today, the scope and ambit of rape, referring to intercourse without consent or through coercion (not consensual), is one that is punishable by the law,” she noted.
WIN elaborated that while marital rape as a population demographic is seen across all strata including in the lower middle class, it is however most prevalent among those who get married just out of their teens, of the ages between 18 and 20 years and below 25 years. Such marriages experience turbulence by the time the individuals are 29 or 30 years old, as the relationships are more physical than intellectual, De Alwis explained.
“At this stage, extra-marital relationships also occur. As a result of the forced, unwelcome sexual torture and molestations that violate their personal bodily integrity, women as a result may become nymphomaniacs, develop depression, suffer from psychotic breaks, and show symptoms of the battered woman syndrome,” she remarked.
Women interviewed in a survey on rape published in 1985 (Ask Any Woman: A London [England] Inquiry into Rape and Sexual Assault by Ruth E. Hall, which is the report of the Women’s Safety Survey conducted by Women Against Rape), “made it clear that rape by the husband is just as painful and traumatic as rape by strangers, in some ways worse”.
De Alwis opined that men think that it is their right and therefore disregard consent, a point on which Dushmantha (name changed to protect identity), a married 24-year-old Colombo-based office worker at the time, concurred with.
“Permission has already been obtained when the person signed their name on the dotted line of the marriage certificate,” he said.
WIN cites access to hardcore pornography, sexual stimulants and sex-enhancing drugs, sexual torture, morbid jealousy, and men getting their wives to dress up scantily to titillate, as reasons for marital rape, which is also one of the many forms in which domestic violence manifests itself.
Marital rape centres round age-old traditions and customs of marriage and a restricted understanding of female sexuality.
To quote the House of Lords in R vs. R [1992] 1 A.C. 599, a landmark decision by Lord Henry Shanks Keith (joined by Lords Chief Justice Geoffrey Dawson Lane, Henry Vivian Brandon, William Hugh Griffiths, Desmond James Conrad Ackner, and Robert Lynd Erskine Lowry) recognising marital rape as a criminal offence in England and Wales: “The status of married women has changed. Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. One proposition involves that by marriage, a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times, any reasonable person must regard that conception as quite unacceptable.”
Still, however, many countries such as Sri Lanka and neighbouring India have not criminalised marital rape (however, the Indian SC in X vs. The Principal Secretary of the Health and Family Welfare Department of the Government of New Capital Territory of Delhi and Another [Civil Appeal 5802/2022], in a watershed verdict by Justice Dr. Dhananjaya Yashwant Chandrachud that was joined by Justices Ajjikuttira Somaiah Bopanna and Jamshed Burjor Pardiwala, recognised marital rape only for the purposes of abortion), although Asian countries such as Nepal, Malaysia, and Thailand have done so.
Part II of this article will be published in The Morning tomorrow (25)
(The author acknowledges major contributions made to this article by a lawyer [who cannot be named for professional reasons] and another journalist)
Marital blitz and the issue of marriage as a licence to rape
24 Oct 2022
Marital blitz and the issue of marriage as a licence to rape
24 Oct 2022