Why is marital rape still legal in Bangladesh?
Rape is undoubtedly among the most heinous offences against the human body and Bangladeshi law is yet to criminalise the act of marital rape. Far from criminalising it, the law in fact explicitly exempts marital rape from the offence of rape itself.
The exemption can be found in Section 375 of the Penal Code, which is the chief provision for the definition of rape and lists five scenarios which would amount to rape. The list is followed by a categorical exemption for marital rape from the offence of rape, which explicitly states that "sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape."
This is problematic for a number of reasons.
First, the exemption clause makes it legally impossible for a man to rape his wife who is over thirteen years of age. Since wives are generally over thirteen years of age in Bangladesh, it means that the overwhelming majority of married women in Bangladesh will be incapable of seeking recourse in law if they are raped by their husbands.
Second, this exception is inconsistent with the age of consent found in Section 375(2) which covers statutory rape and clearly states that sexual intercourse with a woman "with or without her consent, when she is under fourteen years of age" is considered to be rape. One may wonder why a lower age of consent applies to child brides since marital status does not automatically increase a girl's capacity to consent to and engage in sexual acts.
Third, it is also inconsistent with Section 376 which prescribes the punishment for rape. It states as a qualifier when ascribing the punishment for rape. The general punishment for rapists is life imprisonment or a prison sentence up to ten years, and a fine "unless the woman raped is his own wife and is under twelve years of age in which case he shall be punished with imprisonment for a term which may extend to two years, or with fine, or with both." Here again there is inconsistency as to the precise age a wife must be for marital rape to be punishable since the exemption clause in section 375 sets it at under thirteen years but Section 376 states it to be under twelve years. This coupled with the fact that punishment can at most only be a two-year prison sentence (or even just a fine) shows that even in the very narrow sense in which marital rape is criminalised, the punishment remains shamefully minimal.
The marital rape exemption was inserted by British colonial rulers when they enacted the Penal Code in 1860, and it illustrates the nineteenth century mindset of English lawmakers. As Sherri Davis explains in Marital Rape: The Legislative Battle, the matrimonial consent theory was justified by the English common law assumptions that upon marriage, a wife became the property of her husband or that the spouses became one entity. Legally, then, a husband could not be guilty of assaulting or raping his own chattel, and in the latter case, the "one entity" principle made it impossible to charge a husband with rape.
The legality of marital rape finally came under scrutiny in the mid-twentieth century and England itself outlawed marital rape as late as 1991, in the case of R v R, while the British-mandated marital rape exemption still remains in force in Bangladesh. Interestingly, the original age stipulated in the Penal Code's marital rape exemption clause has been amended time and time again by local lawmakers post-independence, presumably in accordance with changing social norms.
Furthermore, certain newer laws which although sought to empower women and alleviate their suffering (such as The Prevention of Oppression against Women and Children Act 2000) still referred back to section 375 of the Penal Code and thereby maintained the marital rape exemption.
Thus it would be improper to simply blame the British and presume that the marital rape exemption is merely an archaic colonial remnant that has only survived since it never came under the purview of lawmakers after enactment. Rather, Bangladeshi lawmakers have had ample opportunity to remove it but seem to have consciously chosen to retain it instead. Supporters of the exemption tend to justify it based on the argument that allowing prosecution of husbands for rape would disrupt or impede reconciliation of troubled marriages. It is difficult to conceive how charging a husband with the crime of rape can be considered to be more disruptive to marriages than the heinous act of rape itself (as was highlighted by the Supreme Court of Virginia in the case of Weishaupt v. Virginia, 1984 when outlawing marital rape).
The situation in Bangladesh can be contrasted with that of Pakistan which, despite inheriting the same Penal Code from the British Raj, does not have the marital exemption clause today. The Protection of Women Act 2006 attempted to repeal anti-women rape laws and amend the infamous Hudood Ordinance by reintroducing the rape laws from our commonly inherited colonial Penal Code. While reinserting section 375, the Pakistan Parliament quite simply removed the exemption clause from it, thereby relinquishing the legal safeguard that was enjoyed by husbands who raped their wives. Such an erasure would also be advisable and quite achievable in the case of Bangladesh. Unfortunately, there is nothing to suggest that any such reform is even remotely on the horizon, which is precisely why we need to start a discussion and engage in dialogue.
We need to acknowledge that the reluctance in our country to criminalise marital rape is rooted in the medieval notion that upon signing the marriage contract, a wife perpetually and irrevocably consents to sexual intercourse with her husband whenever he so demands. It is reflective of our society's wider perceptions on the subjugated role of the wife within the institution of marriage and the sexist power dynamics patriarchal cultures seek to preserve.
We need to realise how marital rape has the potential to be even more traumatic and scarring for a victim than rape by a stranger. Indeed, this was poignantly highlighted by Dr David Finkelhor in his testimony supporting the criminalisation of marital rape: "When you are raped by a stranger you have to live with a frightening memory. When you are raped by your husband, you have to live with your rapist."
Taqbir Huda is currently working as a research officer at Bangladesh Institute of Law International Affairs (BILIA) and volunteers at Bangladesh Society for the Enforcement of Human Rights (BSEHR- Manabadhikar).
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