MARITAL RAPE

Marital rape remains one of the most misunderstood and under-reported forms of sexual violence, particularly in countries where societal norms and legal frameworks lag behind in recognizing the rights of women. In Sri Lanka, the legal landscape still fails to provide adequate protection for victims of marital rape. It perpetuates the notion that a marriage contract grants complete control over a woman’s body to her spouse. 

What is Marital Rape? 

Marital rape refers to non-consensual sexual intercourse by one spouse with the other. It is a form of domestic violence and sexual abuse, with the unique characteristic that it occurs within the confines of a legally recognized marriage. Historically, many legal systems around the world granted husbands immunity from being prosecuted for raping their wives, under the outdated assumption that marriage implied perpetual consent to sexual relations. This archaic understanding fails to recognize women as autonomous individuals with rights over their bodies. As a result, it enforces a deeply rooted culture of patriarchy and male dominance in marriages. 

Marital rape is not just a private matter. It is a human rights violation that violates women’s dignity, bodily autonomy, and equality under the law. 

Global issue of Marital Rape as a Human Rights Violation .

The United Nations and various international human rights organizations have consistently emphasized the need to address marital rape as part of the broader fight against gender-based violence. 

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Sri Lanka is a signatory, calls for the elimination of all forms of discrimination against women, including violence within marriage. 

Globally, more than 150 countries have criminalized marital rape, recognizing that consent is fundamental in any relationship, including marriage. Countries with cultural and religious contexts similar to Sri Lanka such as Nepal, Singapore, and the Philippines have enacted laws to criminalize this act. 

However, in Sri Lanka, while there is growing recognition of the issue, legal provisions and societal norms continue to fall short in offering adequate protection. 

Legal Status of Marital Rape in Sri Lanka 

Sri Lanka’s Penal Code criminalizes rape, but Section 363(e) provides an exemption for marital rape unless the couple is judicially separated. This means that marital rape is legally permissible under certain circumstances. It perpetuates the notion that a husband has an uncontested right over his wife’s body. 

The Prevention of Domestic Violence Act No. 34 of 2005 is another attempt to protect women from violence within the home. However, it fails to address marital rape adequately.

Case Studies 

Several landmark cases from other jurisdictions demonstrate the global shift towards recognizing marital rape as a serious offense.

In R v R (1991), a UK court ruled that marriage does not confer immunity from prosecution for rape. It establishes that a rapist is a rapist regardless of their relationship with the victim. 

In the United States, People v Liberta (1984) upheld that married women have the same rights over their bodies as unmarried women. It emphasizes that marital status should not affect a woman’s right to refuse sexual advances. 

These cases stand in stark contrast to Sri Lanka’s outdated laws, which still view marriage as a space where a woman’s autonomy is compromised. 

Social and Cultural barriers to addressing Marital Rape in Sri Lanka 

In Sri Lanka, societal norms and deeply ingrained patriarchal values reinforce the belief that men hold a position of dominance within marriage. Discussions about sex are often considered taboo. This culture of silence makes it difficult for victims of marital rape to come forward. 

Women are often stigmatized, and the lack of awareness about marital rape prevents many from even recognizing that what they are experiencing is abuse. Patriarchy plays a significant role in Sri Lankan marriages, where traditional gender roles expect women to be subservient and compliant, especially when it comes to sexual relations. This creates an environment where marital rape is not only underreported but also accepted as part of the marital dynamic. 

As a result, many victims remain silent. They endure the trauma without access to support or legal recourse. 

Psychological and Social impact of Marital Rape 

The psychological and emotional toll of marital rape on victims is profound. Consultant Clinical Psychologist Shanelle De Almeida explains that marital rape affects victims on three levels; biological, psychological, and social. 

• Biological Impact: Marital rape can cause physical trauma, leading to long-term health issues such as digestive problems and discomfort with physical touch. 
• Psychological Impact: Victims often experience depression, anxiety, and PTSD. The trauma from non-consensual sex within a marriage can leave deep emotional scars that affect a victim’s self-esteem and mental health. 
• Social Impact: Marital rape can alter how victims interact with others, affecting their employment, social relationships, and overall outlook on life. The stigma associated with marital rape often isolates victims from their communities, adding to their emotional burden. 

Is there a need for legal reform and public education? 

Sri Lanka urgently needs stronger legal protections for women in marriages. Criminalizing marital rape across the board, without requiring judicial separation, is a crucial step towards ensuring that all women regardless of their marital status are protected from sexual violence. 

Beyond legal reform, public awareness campaigns are essential to challenge the cultural taboos surrounding sex, consent, and marriage. Education on bodily autonomy, consent, and gender equality should start from a young age to foster a culture where women’s rights are respected and upheld. 

It is also imperative to focus on sex education for women, especially in rural areas where access to information is limited. By empowering women to understand their rights and speak out against marital rape, Sri Lanka can make meaningful progress towards gender equality. 

Conclusion: A Call to Action 

Marital rape is not just a legal issue. It is a societal problem rooted in deeply ingrained gender norms. The Sri Lankan government must take urgent steps to reform the legal framework, ensure justice for survivors, and hold perpetrators accountable. Public awareness campaigns, sex education, and empowering women to recognize and assert their rights are crucial steps toward creating a society where all women are safe, respected, and able to live with dignity. 

By criminalizing marital rape and promoting gender equality, Sri Lanka can make significant strides in achieving its commitments under international human rights treaties, including CEDAW and the Sustainable Development Goals. 

Women deserve the right to live free from violence, and it is the state’s responsibility to ensure that this fundamental right is upheld.

References

Centre for Policy Alternatives, Legal Reform to Combat Sexual and Gender-Based Violence: Part I, Reforming Existing Laws and Policies (November 2020)

Ekanayake P., The Necessity of Criminalizing Marital Rape in Sri Lanka: A Brief Case Study Based on Scholarly Reports Both Locally and Internationally (LLB dissertation, Asia Pacific Institute of Information Technology, 2019)

Rodrigo A., ‘Sri Lanka to Criminalize Marital Rape: Justice Minister’, EconomyNext (25 March 2024) <https://economynext.com/sri-lanka-to-criminalize-marital-rape-justice-minister-155960/ > accessed 2 October 2024

Siwrathne S.B.Y.M.D., ‘How the Offence of Rape Has Been Overshadowed by Marriage and its Impact on National Growth of Sri Lanka: A Critical Analysis from Legal and Economic Perspectives’ (13th International Research Conference, General Sir John Kotelawala Defence University, 2020) Sessions in Law

Udani G.I.D.I., ‘Contesting the Consent: An Analysis of the Law Relating to Marital Rape Exception in Sri Lanka’ (2017) 14(4) International Journal of Business, Economics and Law 1

Wijesinghe D., ‘Marital Rape: A Legal Blind Spot’ The Morning (Colombo, 19 May 2024)

Penned by Nethmi Weerakoon (Second year student of faculty of law university of colombo)