by Sharanya Sekaram
The Daily Mirror reported earlier this month that, “Amendments will be introduced to the Penal Code shortly to make marital rape a crime and a punishable offence and cabinet approval has been granted to a proposal made in this respect by Justice and Foreign Employment Minister Talatha Atukorale”.
Marital rape (or spousal rape) is the act of sexual intercourse with one’s spouse without the spouse’s consent. It is a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent is now widely recognized by law and society as a wrong and as a crime. It is recognized as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.
Rape has been, until recent decades, understood as a crime against honor and reputation – not only in domestic legislation, but also in international law; for example according to the Article 27 of the Fourth Geneva Convention, “Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault“.
A senior source of the Justice Ministry, as reported by The Daily Mirror, stated regarding the motivations regarding the proposed criminalization that, “It is recognized all over the world that sexual intercourse even with the legal wife without her consent is a crime. Our objective is to give the opportunity to a woman to take legal action against her own husband who has raped her. Sri Lanka’s Penal Code does not recognize this offence as a punishable offence now thought it is also a domestic violence,” she added. She pointed out that women in Sri Lanka in many instances are reluctant to lodge a complaint with the Police against her husband though she becomes a victim of domestic violence and rape based on religious, cultural, social, and family values. But some legal measures are required to arrest this negative trend which is on the rise, she stressed. She also said making marital rape a crime is also a condition laid by the EU to withdraw the ban of the GSP+ on Sri Lanka.
According to a circular provided to Bakamoono by Women In Need, over 90% of married women believe that forced sexual relations by her husband is normal and expected in a marriage, even though they were psychologically and physically affected by it. This was reveled through a study conducted in 2016-2017 which sampled a total of 1126 of WIN’s clients from 6 Districts (namely Colombo, Batticaloa, Anuradhapura, Matara, Badulla, and Jaffna). The study also confirmed that marital rape is result of patriarchal supremacy and was used by husbands as a means of power and entitlement. More than 50% of the women said that their husbands used ‘forced sex’ as a form of punishment for his suspicions or other domestic misunderstandings.
Bakamoono spoke to lawyer and Research Director at Verité Research, Gehan Gunatilleke to gain more understanding and clarification into the proposed amendments to the law.
Currently the law concerning rape can be found in Section 363 of the Penal Code and provides that rape takes place when a wife is “judicially separated from the man”. Gunatilleke explains that criminalising marital rape would require the following amendments to this section, which are as follows:
- Deletion of the words “and she is judicially separated from the man” in subsection (a). This will ensure that lack of consent by a wife is not confined to situations where she is judicially separated from her husband.
- Deletion of the words “unless she is his wife who is over twelve years of age and is not judicially separated from the man” in subsection (e). This will ensure that statutory rape applies to any person under the age of sixteen years notwithstanding marriage, and will accordingly apply to persons under the age of sixteen years who have married under the Muslim Marriage and Divorce Act.
“There is absolutely no justification whatsoever in retaining marriage as an exception to our law on rape” emphasized Gunatilleke, “most Asian jurisdictions have moved away from this exception. This is an exception introduced by the British when they enacted the Penal Code in the 19th century, and does not reflect contemporary developments in criminal law. So the decision to amend the law is timely and necessary”
According to Gunatilleke, the government has made a firm commitment to criminalising marital rape without exception in the National Human Rights Action Plan 2017-2021 (page 45), which was approved by Cabinet in October 2017. The timeframe for the reform is “medium term”, which means we should expect an amendment to the Penal Code by 2019.
Despite the comments made by the Justice Ministry as reported by the Daily Mirror, Gunatileke clarified that there is no relationship between criminalising marital rape and GSP+ conditions. “There were 15 conditions set out by the European Commission for restoring GSP+ concessions” he confirms, “and criminalising marital rape was not one of them“.
“It is disturbing that we have to cite EU trade concessions as a reason for introducing progressive reforms to our law” he says, “This may be factually true when it comes to something like guaranteeing suspects access to legal counsel (see 15 conditions), but it is completely untrue when it comes to criminalising marital rape. This has nothing to do with the EU. In fact this is something Europeans have introduced to our law. It’s up to the government to now purse this archaic colonial vestige from our law and step into the modern world”.
Bakamoono will continue to follow this conversation as it develops and strongly supports any and all efforts to bring this amendment to the law.