‘I do’ is not a licence to rape

By Divya Mascranghe

Rape makes many of us think of dingy bars, lonely streets, and unknown predators, with strangers likely to assault a woman. Yet, rape can occur within the secure four walls of our own homes. The Women’s Wellness Survey 2019 administered by the Census and Statistics Department indicates that many acts of violence against women are committed by their husbands or intimate partners.

Marriage, cohabitation, or being in a long-term relationship does not mean that consent is not needed for sex. While various forms of abuse and assault are prevalent in homes and within trusted circles, marital rape is rarely spoken of. Sex without consent is rape whether it occurs within or outside marriage. Marital rape is still rape.

Unwanted sex of any form can be marital rape. Sex can be unwanted if the person agrees to have sex because they feel obliged to say yes, or is vulnerable emotionally, financially, physically, or where force or threats are used. As taboo a topic as sex may be, open communication between partners about sex, respecting each other, and understanding that a wife or a husband can say “no” are crucial for a healthy relationship.

Sexual violence, like physical and emotional abuse, is one type of intimate partner violence. One of the worrying effects of the Covid-19 pandemic in Sri Lanka was the alarming increase in sexual and gender-based violence. Rape and marital rape can be a form of sexual violence. The Women’s Wellness Survey indicates that two in every five women (39.8%) have experienced one or more of the five forms of violence by a partner in their lifetime. These are physical violence (18.9%), sexual violence (6.8%), emotional violence (16.7%), controlling behaviours (19.1%), and economic violence (18.1%).

Many do not consider forced sex in a marriage or long-term relationship to be rape, while some are unsure whether a husband can rape his wife. Others perceive it as a lesser crime than other forms of rape. Victims of rape by a trusted person have more difficulty adjusting than victims of strangers, while also causing serious emotional and psychological trauma. Carol Cody, a victim of marital rape in the US, stated in her testimony that “a woman raped by her husband lives with a rapist every day of her life, and she never knows when another attack will occur”.

Umaya, a single woman in her 20s, and Sumesh, a married man in his 30s, both feel that consent is needed even in marriage, and that rape is possible between spouses. Amali says her ex-husband regularly demanded sex from her, even when he was intoxicated and she was heavily pregnant. Her only child is a result of rape by her ex-husband.

Maheshi, a married woman in her 30s, says that consent for sex is always needed whether married, living together, or dating because marriage doesn’t allow a husband to proceed to have sex without permission. While she says that she is aware of consent, she also says that a husband cannot rape his wife. Yet, consent is the only factor that draws the line between sex and rape. Sex without consent is rape. 

Nirmala, a married woman in her late 20s, Senali, a single woman in her 20s, and Kevin, a married man in his late 20s, all had similar opinions to Maheshi’s – They acknowledged that consent is needed, yet believed that a husband cannot rape his wife.

As of 2019, four of 10 countries are reported to have criminalised marital rape. However, Sri Lanka and many other countries are yet to follow suit with progressive and vital legal reforms. Sri Lanka went a step further and decriminalised marital rape, following amendments to the law in 1995, rendering it no longer a criminal offence. This regressive amendment affects two groups of wives in Sri Lanka – married women and victims of child marriages.

The Muslim Marriage and Divorce Act (MMDA) governs Muslims of Sri Lanka and has no minimum age for marriage. This creates space for girls as young as 12 years to be married. Despite numerous calls for legal reforms over many years, satisfactory progress in this regard is yet to be made. Even though the criminal law of Sri Lanka especially recognises the rape of a child below 16 years, the Muslim child bride has no protection or safety due to the MMDA. Child marriages, in general, account for 2% of marriages in Sri Lanka, while government statistics indicate that 3,267 children were married in 2019 (not limited to Muslims), all of whom are therefore victims of rape.

The Penal Code of Sri Lanka which dictates the punishment for most crimes and offences, recognises rape between spouses after judicial separation – which isn’t divorce – is granted. This is recognised by civil courts in the country. 

Countries such as the UK have, in their judgements, moved away from these oppressive and archaic perspectives, and have held that the age-old idea that a wife irrevocably submits to her husband after marriage cannot be maintained anymore. This bold judgement was followed by amendments to their laws in 2003. Sri Lanka, in its decriminalisation of marital rape, has embarked on a backward journey in its duty to protect women and children.

As much as law reforms are needed, public awareness of marital rape is equally important to change perspectives of gender roles and sexual relationships. The Women’s Wellness Survey 2019 indicates that 47.5% of the participants agreed that “a man should show he is the boss” while 46.5% agreed that “a good wife obeys her husband even if she disagrees”, and 39.5% agreed that “it’s a wife’s obligation to have sex with her husband, even if she does not feel like it”.

These perspectives of sexual relations show a lack of consent from women. Allowing an intimate partner to have sex, out of the belief that a man has the right to sex or feeling obligated is not consent. Legal reform, as well as public awareness of marital rape, are thus crucial to safeguard women and children who have been made vulnerable by oppressive and biased laws.

If you fear that you may be a victim of marital rape, or know someone that you are worried about, legal and emotional support is available. Organisations such as Shanti Maargam (+94717639898) and Sri Lanka Sumithrayo (0112 682 535) are available for emotional support, or reach out to a lawyer to assess your options.

(The writer is an Attorney at Law and a postgraduate student of the University of Colombo. Her research interests are gender, women’s studies, and ethnicity)

If you’re affected by the above content or if you/someone you know may be dealing with a similar situation, the following institutions would assist you: 

Ministry of Child Development and Women’s Affairs helpline: 1938

Women In Need (WIN) 24-hour hotline: 077 567 6555

Sri Lanka Police Child and Women Bureau: 011 244 4444