The Faultlines of Consent
The biggest bull I heard last month was the notion that forced sex contributes to a stable marriage. At least that’s what a government affidavit seemed to imply, by stating that criminalising marital rape may “destabilise the institution of marriage”.
That’s right, folks. That’s what the government filed in a Delhi High Court hearing on a petition demanding that marital rape be made a crime. Meanwhile, the Supreme Court is hearing another petition against marital rape: this one seeks to remove the legal exception that allows girls aged 15-18 to be raped by their husbands.
That’s right, folks. There is an actual legal exception for this. It’s in Section 375 of the Indian Penal Code and it reads thus: “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”. Needless to say, this is one of those colonial relics we’ve inherited—like Section 377, which criminalises same-sex behaviour. Needless to say, this too, like Section 377, should be dumped asap. As soon as possible.
Here too, the government has distinguished (or extinguished) itself by arguing that it “would not be appropriate and practical” to dump this exception. I’m dumbfounded at what this implies. Why is it impractical and inappropriate to stop men from forcing their underage wives to have sex? Why would we not want to stop child marriage by making it that much harder to rape underage girls?
As the law currently stands, the only teens who are protected from marital rape are those below 15 years. Imagine the plight of a married 14-year-old girl; for one year, the sex in her marriage is considered statutory rape—since she cannot legally consent until she turns 18. But when she turns 15, the same sex is suddenly no longer rape. Because of the exception in Section 375.
Or imagine the situation of two 16-yearolds. If she’s unmarried and her boyfriend has sex with her, that’s statutory rape—even if she wants to get it off with him. Her consent doesn’t count. But if she’s married and her husband has sex with her, it’s not—even if she doesn’t want him in her body. Here too, her consent doesn’t count.
When one set of girls and women are denied the rights another set of girls and women have, it’s called discrimination. And discrimination is another good reason to declare marital rape a crime, not just for underage girls, but right across the board. For all women. No exceptions.
Why do our laws fumble so much when it comes to rape? Is it because lawmakers pigeonhole us into boxes—married, unmarried, 15-18, below 15—instead of seeing us as #YesAllWomen? Is it because marriage is seen as ‘sacred’ instead of a relationship that must work for both, not just one? Is it because sex is seen as a duty that women are expected to perform for men, specially within marriage? Is it because we’re seen as half-women with no mind, desire or autonomy when it comes to sex? Tick. Tick. Tick. Tick. (Although it should be cross, cross, cross, cross.)
As per the law now, marriage equals blanket consent. Unmarried girls below
18 have no consent. Rape judgments still question whether upper-caste men can rape Dalit women because of caste purities. Sex workers find it tough to file rape cases or get convictions, since sex work itself is misread as all consent—or no consent. Either all sex work is seen as rape (read: no consent), or none of it is seen as rape (read: blanket consent.)
What a load of bull. There’s only one course of meaningful action: make all rape a crime. Rape is rape. No categories. No exceptions. As @lazybanker said on Twitter recently, “Astounding that in the largest democracy in the world we are debating which type of rape is debatable and which isn’t.”
I rest my case.
Why do our laws fumble so much on rape? Is it because lawmakers pigeonhole us into boxes— married, unmarried, 15-18, below 15?