By Tarangee Mutucumarana,

LL.B (Hons) (Lon), LL.M (Lon), Attorney-at-Law, Barrister-at-Law

Ruvini was severely sexually abused in her home by her husband for years before she finally reached out for help. She was granted a protection order and her husband was ordered to leave the matrimonial home. However, her husband moved into the home next to hers, resulting in Ruvini continuing to feel unsafe. When she complained of the same to the local police, they demanded if she expects them to move the husband out of that house too. As Ruvini felt unsafe, on some nights she would leave the home with her daughter and stay in a safe location. However, the local police threatened her that if she did not live in her home, she should allow her husband to live there. Afraid of this, Ruvini moved back home and informed the local police that she was afraid for her safety as her husband had a key to the house. However, the local police took no endevour to obtain the key from her husband. On 4^th March 2022 her husband climbed through a window he had left open previously and cut and stabbed her to death with a scythe in front of their teenage daughter.

Madara is a young mother of two, raped daily by her husband. He rapes her and physically abuses her right in front of her children, and at times proceeds to physically assault the children. He threatens to kill her if she leaves, and on one occasion brought home petrol to burn down her home with her and the children inside. Although she has made multiple police complaints and wants to divorce her husband, she’s afraid to take any action in Court against him for fear that he will kill her and her children.

Anoma began a relationship with a political activist named Saman, 10 years older to her, who demanded that he wanted to see if she was a virgin and forced her to have sexual intercourse with her. Although she bled after having sex, stating that she may have had anal sex before, he forced her to have anal sex with him. Having had sex with him Anoma felt compelled to marry him. After marriage, she lived separately as she was studying for her law college entrance exams. However, Saman would visit her and rape her multiple times a day. He would squeeze and squash her breasts with his hands, pull out her pubic hair, force her to lick the dirt on his feet, and urinate in her mouth and force her to drink it. He would keep her locked in the house for days, making it impossible for her to seek help. When she finally managed to escape, she went and hid with her mother, but he came looking for her, and when denied entry – the family had sent her to the neighbour’s home to hide – he broke in through a window to find her. When she made a complaint to the local police, they advised her to return to her husband. She is now living with her uncle and preparing to re-sit her law college entrance exam.  

Samadhi is a mother of three. Her husband disallowed her from using contraception and would rape her multiple times a week, especially when intoxicated. One day he attempted to rape her daughter of 14. Samadhi made a complaint to the local police about the physical and sexual violence and the subsequent death threat. With legal-aid support she managed to obtain a protection order. In breach of the protection order, her husband entered her house through a window while her other children were at school and raped her, and she is now pregnant again. On another occasion, when she informed the police by reporting to 119 that he was intoxicated and outside her house. Although the police initially arrested him for possession of alcohol, and not breach of the protection order, the incident will help her prove that the protection order was violated. The case begins in late August.

Ruwini is a mother of three, was frequently raped and physically assaulted by her husband over a fifteen-year period, beginning a few days after their marriage. They live in a house on land that belongs to her. Whenever the abuse became unbearable over the fifteen-year period she would make a complaint to the local police, and invariably be advised to return to her husband, which she did. She never officially filed a complaint against him. In 2023 she finally decided to seek a protection order with the help of legal-aid and received one.

[Cases shared with the writer by the legal-aid team at Athwela Sahana Piyasa, Ibbagamuwa. Names have been changed to maintain the anonymity of survivors.]   

The above are only a few stories from the many instances that wives are raped by their husbands. Carol Cody, a survivor 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”.[1]

From wedding vows to poruwa ceremonies to walking seven steps around a flame, holy matrimony has been an institution, a sacrament, so sacred, the greatest gift to a woman as some may say.

Globally, almost one third (30%) of women have experienced some form of physical and/or sexual violence by their intimate partner in their lifetime[2], however, it is believed and argued by the United Nations Women that the number can be as high as 70 percent.[3] In Sri Lanka, one in five (20.4%) women have experienced physical and/or sexual violence by an intimate partner in their lifetime.[4] Sexual violence by a partner is also more prevalent than sexual violence by a non-partner (6.2% compared to 4.1% in her lifetime).[5]

Till death does the agony part…

While rape is seen as a heinous crime, criminalized by the state, the exact identical act is also legal in Sri Lanka when committed against one’s wife; to decode, a husband can rape his wife with no legal consequences. This is the level of barbarism in our country and the potential fate of every married woman.

In ancient times, rape was a property crime against the husband or father, rather than the woman herself. In 2023, women are still treated as the property of their husband, who have the right to exploit and abuse her with no consequences. This shows how far married women of this country are from being safe.

Sex is not an entitlement of a party, but an act of love filled with emotions, to be enjoyed by both parties.  If it is carried out without consent or forcefully, it causes harm, and amounts to rape, irrespective of the relationship of the parties. Consent is the only factor that draws the line between sex and rape. Sex without consent is rape, be it stranger rape, date rape or marital rape, rape is rape.

Marital rape cannot act as an exception to equality and justice. Marital rape is rape, and the argument “he is her husband” holds no water, as in a marriage partners should be equal and treated with respect, neither should be abusive by dictating the other’s actions, while disregarding their emotions. Married women hold the right over their bodies, same as any other woman.

Till death does the agony part: our law gives a husband the license to rape his wife and a message to all married women that their consent, bodily autonomy and agency cease to matter. The more intimate the relationship, the more likely that the survivor of violence is culpable, less likely that the issue is serious or has caused harm, and definitely unlikely that it amounts to rape.

The reasons for this is the cultural notions that marital rape is not rape. Many times one will hear the barbaric notions of “violence should be tolerated in a marriage, when you get married, you have a license to have sex, he is the husband and has full rights over his wife, how can it be rape, where can he go if she does not have sex with him”.  Social stereotypes such as, men have an increased urge for sex compared to women, and withholding of sex by wives – men are left with no option but to obtain it forcefully, have led to culturally validating marital rape and survivors being blamed.

The Women’s Wellbeing Survey stated that almost half the women interviewed in Sri Lanka agreed with the statement that “a man should show that he is the boss” (47.5%) and almost half agreed that “a good wife obeys her husband even if she disagrees” (46.5%). Two in five (39.5%) women disagree with sexual autonomy, supporting the statement that women are obliged to have sex with their husbands even when she does not feel like it.[6] One out of two women who justified Intimate Partner Violence (IPV) had two times the risk of being abused.[7]

It is clear that there is a strong acceptance of tolerating violence considering ‘the intimate relationship’ and ‘the family” unit. Women with a higher education were less likely to agree with men being justified in hitting their wife, showing how education can eliminate violence against women.[8] Hence, educational reforms could be used to develop disagreeing attitudes justifying IPV. Moreover, the media, instead of only depicting that rape occurs in the streets, should spread awareness on IPV promoting available prevention methods and support services.

If we are to put a stop to these notions and reform our laws, we must first recognize that sexual violence occurs in marriage, just as must as it does elsewhere. The idea of the “sacrosanct” institution of marriage is a myth and contrary to the perception of many, marital rape occurs and occurs frequently, may it be in the form of battering rape (physical and sexual violence), force only rape (using of force and coercing to have sex), or obsessive rape (sadistic, torture and/or perverse violence).

It is a common and repugnant form of masochism, hidden behind the curtain of marriage denying women their fundamental rights to live in an equal society, free from torture. Marital rape occurs for the same reason any form of sexual gender-based violence occurs: the power imbalance between men and women.

This power imbalance stems from a sense of impunity that is created in sons, where they are treated as the king of the house, while the sisters and mothers are seeing to be attending to the house chores, which sets the harmful precedent that it is the woman’s duty to heed to the man’s every need. Furthermore, boys are told to bottle up their emotions, which leads to their first emotional reaction being aggression.  Boys must not be treated like they are more special than girls, they must be taught that they can cry, just like girls must be taught that they can and should speak up and that they are in every form and manner equal to their opposite gender.

Male privilege and self-entitlement as well and victim blaming must be addressed urgently. Our language needs change, it is time we stop using phrases such as “giving a girl in marriage” like she is a form of property. We must teach our children the concepts of respect and understanding, equality and partnerships. Instead of teaching our daughters to be modest and submissive, teach them to be strong, independent and have a voice of their own, to speak up when they are uncomfortable and speak loud when they are unsafe. These attitudes will teach them that sex is not a male entitlement or privilege and to refrain from tolerating and accepting such archaic notions and ideologies of the patriarchy.

Marital rape, or any violence, should be grounds for divorce…

Furthermore, society’s notion of “stay in the marriage for your children” holds no water, as children who witness abuse can potentially become abusers. It is time that women are given the support to walk out of an abusive marriage, so that this vicious cycle of violence can be broken. However, as some women cannot recognize abuse, due to lack of information and knowledge about their rights, and due to the societal notions on marriage and abuse inside it, they must be informed. They must know that they have the right to make decisions about their body, they must be taught how to recognize abuse, and how and where they can seek legal and psychological assistance if they want to leave an abusive relationship.

It is with great difficulty that women approach our police stations, as they may fear further violence from the perpetrator, may have no place to go, may be unable to support themselves or their children. Furthermore, stigma, anxiety, embarrassment, fear of losing children, hostile attitudes and potential revictimization by the police can discourage a survivor from seeking support. At times, parents do not encourage a divorce due to the shame and stigma that their daughter and the family have to endure, and do not want to take their own daughter back home. A woman is also told by society “why go to the police, it was like that for us also, have patience, think of your children, don’t wash your dirty linen in pubic”. It is shocking that to date families and societies will force a woman to live with their abusive husband, instead of leading her away from the same. Hence, when she seeks legal support, she may have no other support.

When a woman, scarred physically and emotionally, gathers the courage to step into a police station, a response to reconcile/ mediate and requesting that she go back to the perpetrator is not what she deserves to hear. We need well-resourced, sensitized police officers who are trained to make the survivor feel safe, take down complaints in a confidential manner, find a safe location for the survivor and seek the protection orders from Court as soon as possible. The Court system should act efficiently, using the necessary safety measures in Court, to provide justice to the survivor and suitable sentencing to the perpetrator which would deter others. We must do away with discriminatory evidence requirements and any other legal constraint that dissuades survivors from making complaints or seeking the assistance of the law. Counselling must be provided at all times, seen to be fit during the course of this difficult time for the survivor.

In a country that is filled with many societal stereotypes and patriarchal norms and where there are many procedural legal issues, one would hope that at least the State would have substantive laws in place to protect its citizens. However, as stated above, reflective of a primitive lawmaking process, the definition of rape under the Penal Code contains an exemption for marital rape; which also explicitly permits marital rape of girls over the age of 12, despite the age of consent for sex being set at the age of 16, as the Muslim Marriage and Divorce Act has no minimum legal age of marriage, and are in conflict with Sri Lanka’s family law which sets the minimum age of marriage at 18.

Furthermore, the Prevention of Domestic Violence Act does not consider marital rape to be domestic abuse.

Marital rape or any form of violence is not a ground for divorce, resulting in a survivor of marital rape having no choice but to continue to live with their rapist. One truly cannot begin to understand this ordeal that a woman has to endure in such a marriage.

Rape by the husband is just as painful and traumatic as rape by strangers, in some ways worse. As a result of the forced, unwelcome sexual violence which violate their bodily integrity, these women face serious physical, psychological and reproductive health problems, which also affects their children’s wellbeing and their work productivity.

Some incorrectly believe that it is due to our patriarchal culture and ancient traditions that our current law that does not criminalise marital rape, but in truth the Penal Code was imported from British law, and while Britain has since criminalized marital rape, we still faithfully sustain this colonial fixation.

Why is it then that after 75 years of independence that we have not criminalized this gruesome act of marital rape?

1. Criminalising rape will destroy marriage, preventing any possible reconciliation: A marriage where a husband rapes his wife is already destroyed. The fundamental objective of the law should be to protect a human being. It should not encourage forced cohabitation and should not protect a raping husband.
2. Privacy in Marriage: Divorces are already being handled by civil courts and intervention by law is not harmful to relationships where non-consensual intercourse results in causing a harm, as the law has a legitimate concern in reducing harm.
3. Irrevocable consent and implied consent: By no stretch of imagination can it be said that a person consents to violence. A woman should have the right to dissent and consent only when she so sees fit.
4. There is no need to give legislative attention to marital rape, as it is quite uncommon and lacks significance compared to non-marital rape: The statistics in the Women Wellbeing Survey conducted in 2019, show clearly how rampant and significant marital rape is. Furthermore, although a common crime, it is under-reported.
5. False cases will be filed: Many other crimes have this possibility, but this does not make them any less a crime, and investigations can be carried out to verify the veracity of the accusation. Besides, the criminal justice system provides inherent safeguards such as the requirement of proof beyond any reasonable doubt.  Due to the stigma of rape trials, it is unlikely that women will elect to undergo such an experience out of spite. Furthermore, in a country where rape is difficult to prove, how will a woman prove a rape that never occurred? Finally, it is no justification that survivors should be denied protection simply because someone might be at risk of a fabricated case.
6. Difficult to prove: A criminal offense cannot go unpunished just because it is difficult to prove the same.

A rebuttal of these trite arguments is not difficult. These are mere excuses of a patriarchal society, and lack legal substance or moral force. These concepts are antiquated and the laws relying on these philosophies need to be reassessed. Marital rape should be recognized as a crime and the same punishment for rape given.

Marital rape or any violence in marriage should be allowed as a ground for divorce.

Imagine a country that has reformed its discriminatory laws by criminalizing marital rape, and honouring international commitments for an equitable society; a nation that has made police stations safe and court rooms comfortable; a place that does away with our traditional patriarchal norms, paving the way to deter crime and for women to be treated with dignity.

The fight to criminalize marital rape is not just about changing the law on paper (although that is a much needed first step), it is about changing the archaic mindset of seeing women as property and not individuals with bodily integrity, autonomy and agency. No condition, such as age, gender, sex and marital status can deny the perpetrator of his horrific conduct of rape. Rape is rape. That is the end of the sentence.