Proposed research topic: Marital Rape and Criminalization of

Sexual Assault within Marriage

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 Abstract

Rape exposes the failures of a society in terms of providing better security to individuals within

it. A rape not only is an attack on a person physically but it also leaves the person mentally

unstable. Assaulting individuals through the shameful act of rape is becoming a grave concern

for the society. One of the most heinous crimes that occur these days is marital rape. This

terminology breaks the sacred bond between a man and a woman. Forcing someone into physical

intercourse is never desirable among civilised people. Marital rape is a global problem and the

developing countries are mostly facing these issues as there is lack of awareness and lack of laws

to address these concerns. Marital rape reaps apart the soul of a women and it can be considered

as an assault to the autonomy and privacy of a woman.

It is observed that the lack of law enforcement is allowing the beast disguised as human to fulfil

their sexual needs via forcing the wives to participate in an intercourse. Marital rape is only

establishing Satanist activity instead of serenity in the holy bond of marriage. Any forceful

intercourse without consent can be identified as heinous as rape and the paper aims to identify

marital rape as a different form of rape and discusses the historical background of how marital

rape obtained legal sanctity. The paper also aims to discuss the prevalence of marital rape

globally and its effects on the victims. The criminalisation of the marital rape will also be

focused upon while showing a comparison between the rules of marital rape in countries like

India, and USA.

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 Table of Contents
Introduction......................................................................................................................................4
● Meaning of marital rape......................................................................................................4
● Historical background.........................................................................................................4
● Rationale behind research...................................................................................................5
Research Problem............................................................................................................................6
Review of Literature........................................................................................................................6
● Forms of marital rape..........................................................................................................6
● Concept of consents in marriages........................................................................................7
● Ground for non-criminalisation of marital rape vs. ground for criminalising marital rape..8
● Aspect of a victim in marital rape.......................................................................................9
● Legal provisions under the penal code of India, and USA................................................10
Research Objectives.......................................................................................................................10
Relevance of research....................................................................................................................11
● Perception of criminalisation of marital rape....................................................................11
Proposed Research Methodology..................................................................................................12
● Research Approach...........................................................................................................12
● Research Philosophy.........................................................................................................13
● Research Design...............................................................................................................13
● Data Collection: Primary and secondary data...................................................................14
● Sampling...........................................................................................................................15
● Data analysis.....................................................................................................................16
● Ethical Consideration........................................................................................................16
● Limitations........................................................................................................................16
Research Dimensions.....................................................................................................................17
● Survey results and literature review..................................................................................17
Expected Outcomes and Implications...........................................................................................17
● Understanding the arguments on criminalisation of marital rape......................................17
● Needs for the enforcement of domestic violence protection act........................................18
References......................................................................................................................................20

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Introduction

● Meaning of marital rape

Marital rape has been a widespread problem for women which is existing over centuries. Married

women of different ages are suffering from physical or sexual assaults. Marriage has been

considered as the holy ritual that binds together two different souls. This relationship involves

not only two people but also their families (Yewale, 2022). Then how can a heinous crime like

“rape” be related with marriage? To answer this question one needs to summarise the situation

that explains any sexual activity by the partner without the consent of other is signified as

“marital rape”. This occurs specifically with women who have not consented for the sexual

activity, however, get forced, and tortured by the partner to fulfil their physical desire. It is quite

a debatable topic across nations since people believe that marriage is an open licence to fulfil

sexual desires anytime anywhere. Many people don't have the idea on concepts of consent and

marital rape. They are not ready to accept the fact that unconsented and forced sexual activity is

marriage is also called “rape”.

● Historical background

In the 17th century, there were beliefs that a man is never accused of having physical intimacy

with his wife after marriage and a wife is automatically expected to offer herself to the husband

and should not retract it. Hence, it is clear from the history itself that marital rapes are not being

reported.

As per reports, about 32 countries have still not yet criminalised the marital rape though it was

recognised as crime worldwide. According to the experts of law, the basic human rights are

getting violated for not legalising marital rape (Banerjee, and Rao, 2022). However, marital rape

is to some extent neglected in legislature. For example in India, the marital rape is not directly

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listed in the penal code. Under the section 375 of Indian Penal Code (IPC), which criminalises

rape makes an exception such that “Sexual intercourse of man with his own wife, the wife not

being under the age of 15 years, is not rape”. Therefore, if the wife is above the age of 15 years

then unconsented sexual intercourse will not be an issue (Balazsi, 2021). The research tries to

focus on the aspects of marital rape and how the judiciary should take necessary steps to control

it. The research also further compares the laws regarding marital rape case in developed country

such as USA while comparing them with the laws of India and understanding how it can be

adopted.

Women in many countries are flailing prey marital rape, unwanted touching in private part,

shoving or pressing male penis against their body. After, the 20th century, the awareness against

rape engorged the stand that even married people must have some boundaries between them

(Godha, 2021). Any sexual anatomy of a woman's body requires consent even if she is married.

However, to the irony, the socio-legal problems regarding marital rape is not recognised yet in

these countries like India. The problem also explains further issues of being sexually injured or

deprivation of liberty or male dominance over a woman.

● Rationale behind research

Traditionally, marriage is considered as the holy matrimonial bond between a man and women.

However, the cruellest crimes such as rape or precisely marital rape is leaving people in deep

concern and they have started questioning the validity of marriages. The case studies from India,

and other developing countries are quite shocking. Marital rate in countries like India violates

human rights. Though there is no direct law in the constitution of India, the act of marital rape

violates the saying of article 14 and 21 (Singh, 2022). These articles preserve the right of women

to live independently in a safe place and have equal human rights as men.

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The research is influenced with the grief and sadness that the rape victims bear inside their heart.

Moreover, in most cases they are not even getting the desired support they want. With further

advancement in research it is found that there is lack of awareness regarding this topic and

people hesitate to report physical aggressiveness or sexual coercion in marriages (Rao Kallakuru,

and Soni, 2018). Therefore, criminalising the sexual assault becomes important and that is why

this topic for research has been chosen to discuss.

Research Problem

Research problem is something that defines the need for the research.

Research Question: What is marital rape and how the criminalisation of sexual assaults within

marriages are done?

Problem: The act of sexual intercourse with the spouse without individual consent

Intervention: Identifying penal laws and amending current penal laws that can provide safety and

security for the innocent women falling prey of marital rape (Kumar, 2021)

Comparison: Comparing the different real time data gathered from developing countries like

India and developed countries like USA.

Outcomes: Bringing awareness to the woman in the society whether married or going to be

married

Review of Literature

● Forms of marital rape

The main issue that is being discussed in this writing is marital rape and criminalisation of sexual

assaults within marriage. Marital rapes can be cruel and most of the time bride herself is unable

to realise the crime. Several literature is available in the libraries which enlighten people on the

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act of domestic violence and sexual rights of a woman. The different forms of marital rape can

be presented as follows:

Battering rape: Under this circumstances, a man beats his wife and after that he forces himself on

the wife to have physical intimacy. In this case both physical and sexual “hostility” coexist. Due

to the nature of rape vast marital rape cases fall into the category. Next comes the

Forceful rapes: This happens when the woman refuses to have physical intercourse with the

partner and the man resorts to force (Mehta, 2021.). This type of marital rape includes no battery

of physical violence.

Lastly,

Obsessive rape: This rape is carried out by a husband with a purpose of eliciting emotional

responses. All of these rape forms are allegedly leaving a harm on the self-respect and human

rights of a woman (Rao Kallakuru, and Soni, 2018).

As defended by the European commission human right “a rapist is a rapist, no matter what type

of relationship is shared between the two” (Robinson, 2017). However, the police officials,

prosecutors and general public show off such shame to the woman, that she herself feels helpless

and questions her action of seeking help against physical torture.

● Concept of consents in marriages

The ritual of consent in marriages includes a “yes” from both the partners. In the 21st century,

every single person is born free and equal. The male and female consent protects each citizen’s

liberty and their rights to live in harmony. Consent is a term that can be determined as the

personal interaction between man and woman in their marriage. After a woman accepts the

marriage proposal from a man, she is expected to provide her explicit agreement at every step.

There is a very thin line that distinguishes rape from natural sexual intercourse and that line is

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called consent. To the irony, in most of the case, woman’s agreement to “sexual relations is

inferred after her marriage” and she is usually not expected to revoke it (Garg, and Singla, 2013).

Traditionally, in developing countries like India, a woman is the responsibility of her father

before marriage and becomes a property of her husband after marriage. These concepts are

demeaning and often people use deception, trickery, fraud and dishonesty to get a woman’s

company. However, some people mix up consent with submission. In the sphere of marital rape

consent, submissions should be treated individually. Also, the constitution needs to understand

that the women’s lack of protest does not mean that she agreed for physical intimacy.

Only because she did not object, it never gives a man the right to invade a woman’s privacy.

Sadly, only in case of marital rapes, the wives consent is automatically considered irrespective of

her resistance (Pandey, 2013). This is a clear violation of a woman’s free will and such incidents

are required to be avoided for maintaining women's basic human rights. Getting permission from

both parties before engaging in sexual intercourse cannot be overstated. Hence, in this research

the factors that influence marital rape are going to be discussed and focus will be not

criminalising it.

● Ground for non-criminalisation of marital rape vs. ground for criminalising marital

rape

For a longer period of time, women have been considered as incapable of making their own

judgements in orthodox society (Singh, 2022). Therefore, their partners are always looked upon

while they make decisions. That is why she is presumed to have provided her consent in the case

of having sexual pleasure. This thinking leads towards the thought of non-criminalising marital

rape. Some probable reasons behind non-criminalising rape are:

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 1) Criminalising marital rape would destroy the holy event of marriage while labelling the

woman as a rebel in front of the society. This will also question the husband’s rights of

fulfilling physical desires since he has been providing for the unemployed woman

2) Usually there is no-proof of non-consent found in marriages

3) There might be an increase seen of false cruelty and dowry accusations made by the

dishonest women on their innocent husbands

The ground for criminalising the marital rape includes management of legal rights for woman.

Basic human rights include the right to say no in sexual intercourse even if the act is initiated by

the husband. The history itself has always been against women. For example, Cameroon’s law

can be taken into consideration which creates legal impunity for the men who sexually assault

their wives (Pandey, 2013). The wives are often considered as the sex slaves who are bound to

serve themselves every day before their husband to fall prey of rape. In most of the case, the

insensitivity of the officials during handling the marital rape case is something that one should

get rid of.

Showing violence towards a woman and participating in forceful penetration requires immediate

law enforcement to be stopped. The act of brutality during intercourse, needs to be corrected to

ensure the wellbeing of women. The Indian Law Commission and government officials have

confirmed that criminalising marital rape is not easy because of the relativism. The

discrimination against women has increased. Although the Domestic violence act of 2005 gives

punishment for a woman being injured due to reckless physical intercourse. The section 13 of

“Hindu Marriage act” allows taking divorce on the grounds of “cruelty” (Angel, 2021). While

several exceptions to the Indian Evidence Act are generated, it is essential that the marital rape

incident is criminalised.

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 ● Aspect of a victim in marital rape

A victim of marital rape can face multiple injuries. Out of them, repeated bruising and other

physical injuries to the regions of vagina and anus can be considered. These bruises might never

heal since they are frequently getting tortured in the same place. Forceful sexual activity can be a

reason behind the anxiety, shock and psychological issues. There can be health hazards such as

miscarriage, STDs (Sexually transmitted Disease), or unwanted pregnancy. Some symptoms, like

anorexia, insomnia and bulimia can show their long-term impacts.

Since the attacker of the victim is a known person, a woman often observes utter powerlessness.

In developing countries there is absolutely no legislation against the marital rape and nobody is

concerned regarding making it a crime.

● Legal provisions under the penal code of India, and USA

Imposing penalties for rape in married couples has become a challenge in the provision of

countries like India. On the other hand, countries like USA was the first ever to define the crime

of rape. Section 271 of the code defined any unwanted penetration as sexual assault. The serious

crime of rape is a punishable offense such as 10 years in prison (Easterby-Smith et al., 2018). If

this sexual assault occurs within a marriage the spouse is eligible for punishment.

On the other hand, the spousal rape is never considered as a crime in India and they are always

getting away even after committing such a heinous crime. However, in developed countries have

taken stricter action against the rape and it has to be reported within the 30 days of the act. The

following states of the country USA, such as California, South Carolina is part of taking steps

towards reducing marital rape rates. “The United Nations Committee on the Elimination of

Discrimination against Women (CEDAW Committee)” pushed the countries to align rape laws

as per the international law standards (Banerjee, and Rao, 2022). The act of rape will be

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specifically defined based on the terminology of “lack of consent”. The “UN handbook” under

these circumstances can be identified as the most important element. Moreover, the

implementation of facts such as women, peace and security in 2009, allows assault victims to get

justice and all of this is present in the USA, not in India.

Research Objectives

The research tries to understand whether why the criminalisation of the marital rape has not yet

taken place. Does this mean that marriage provides a license to rape? The research would be

going through a socio-legal analysis of marital rape in different countries like India, and USA to

gather real time data and strengthen the research. According to the Indiana University Press data,

“more than 1 in every 7 women who have been married has been raped in their marriage”

(Robinson, 2017). As per the data of “United Nations Population Fund”, women of the age group

of 15-55 years are vulnerable towards forceful sex, battery and physical torture. In short the

objectives that motivates to complete the research will be:

● To recognise marital rape and consider it as a different form of rape

● To investigate the current legal framework and identify the barriers towards

criminalisation of marital rape

● To present arguments is support of criminalising marital law and introducing law

amendment to protect the woman’s basic human rights

● To provide a comparative analysis on the status of marital rapes between countries like

India, and USA

● To identify measures that can be undertaken to spread awareness regarding this heinous

crime and promote the concepts of consent taking before physical intercourse takes place

Relevance of research

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 ● Perception of criminalisation of marital rape

The 1983 criminal amendment act established protection against rape and preserving woman

rights. Initially, the measures were established to identify custodial rape, acknowledge power

abuse, and identify those in positions of leadership who frequently suffered abuse. Hospital staff

and management, public employees, jail superintendents, or managers, have all been charged

with misusing their power and influence. Evidence manipulation is conceivable because of the

position of authority, which was acknowledged in 1983. Later on the Amendments of 2013,

helped women to get justice against the heinous crimes like rape. The term "rape" was defined in

section 375 to encompass all forms of bodily penetration, including rape, on any portion of a

woman's or girl's body.

Prior to this change, the Indian Penal Code described rape as occurring only when a man's penis

reached a woman's vagina. There is now a seventh "circumstance": when a woman is unable to

communicate her permission. Inclusion of this new clause clarifies that the simple absence of

physical consent is not implied by resistance. Rape committed by members of the armed forces

and by relatives, guardians, and educators has been included into Section 376. A new category

was created at this point to highlight the crime or rape committed by an individual in a position

of authority or power. Criminalisation was also applied to other types of sexual assault against

women, including voyeurism and stalking (Robinson, 2017). Resulting from a 2013 alteration,

the consent age was increased from 16 to 18 years old, "outraging the modesty of a woman" was

kept, and the act executions occurred. It is often seen that due to sexual assault, the victim either

passed away, became mentally disturbed or went into vegetative state. Overall, by amending the

laws a significant alteration on women rights is expected to be achieved.

Proposed Research Methodology

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 ● Research Approach

Research approach is something that consists of a collection of presumptions, attitudes, and

beliefs that direct researchers in the performance of their studies is known as the research

approach. There are three sorts of research methodologies: inductive, abductive and deductive.

Deductive procedures help create theories and are intended to test hypotheses (Scotland, 2012).

The positivist philosophy is appropriate for this method (Maher & et al., 2018). This method has

involved developing theories based on assumptions, with the results helping to either confirm or

refute the theories. When a high number of samples are obtained using quantitative procedures, it

is appropriate. Conversely, inductive approaches involve gathering data as a result of data

analysis findings (Ranney & et al. 2015). Last but not the least, there is an abductive type of

approach. This approach is starting with new facts and completely devoted to the explanation of

content.

Since, the aim of this study is to deliver an understanding of the requirement of criminalising

marital rape, the best approach for research will be inductive.

● Research Philosophy

The definition of research philosophy is defined as knowledge creation that integrates concepts

and techniques through structural phases. There are three varieties of it such as positivist

philosophy, pragmatism, and interpretivism (Ranney 2015). When researchers employ statistical

techniques to examine hypotheses and are connected to reality, they apply the positivist

ideology. According to Creswell (2013), positivism is a philosophy that uses a methodical and

scientific approach to examine society and establish connections between various variables. The

interpretivism school of thought emphasises the recognition of phenomena and processes. The

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philosophy of pragmatism is one that develops research methods and strives to resolve problems

that are occurring.

Since, the aim of this study is to deliver an understanding of the requirement of criminalising

marital rape, the best applicable method is positivism. As it deals with statistical information.

● Research Design

The technique that helps researchers construct study elements in order to draw research

conclusions is known as research design. There are three different kinds of research designs such

as exploratory, descriptive, and explanatory. An exploratory research design uses qualitative

research to identify phenomena by posing questions and looking for fresh perspectives. (Maher

& et al., 2018). A descriptive design is one that provides an explanation of occurrences by

analysing them from different angles. Explanatory research designs are used in quantitative

methodologies to aid in the development of cause-and-effect relationships.

Since, the aim of this study is to deliver an understanding of the requirement of criminalising

marital rape, the best applicable method is descriptive methodology.

● Data Collection: Primary and secondary data.

The process of conducting a research study in order to gather information and data that are

necessary for the study is known as data gathering. Primary data are first-hand information

gathered from many sources such as surveys, observations, interviews, and so on. Secondary

sources are also used in this data collection process. It is real-time data that requires a longer

time span, is expensive, and is highly complex (Easterby-Smith et al., 2018). These statistics

have already been published and were gathered from a variety of websites, books, papers, and

other publications.

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Since, the research is based on the investigation of criminalisation of marital rape there is an

extreme need of using primary and secondary data. The primary data is analysed through

preparing graphs and charts. All these charts are made clear where survey data from different

participants are gathered and the relevant work is presented. These data sources are highly valid

and also accurate and even assist in gaining updated data. The collected data is also stored in a

transcript in the researcher’s laptop and that too with high security (Singh, 2022). All the

documents are password protected which ensures that the research is filled with integrity to the

core. In addition, secondary material for this study was gathered from books, news, articles, and

other sources. Every piece of information gathered from secondary sources has helped

researchers grasp problems and save time and effort.

The most impactful data that would complement this research has been identified as the primary

quantitative data and secondary qualitative data. The secondary qualitative data will use a

thematic analysis process so that journals and articles providing information on the topic get the

maximum values. The researcher has used qualitative approaches since they aid in data

processing and provide a full description of the study. This study has also employed this research

methodology as it operates on a tight budget and yields results quickly (Dammak, 2015). This

approach will even assist in obtaining specific understanding to increase corporation revenue and

research long-term leadership techniques.

However, there is a greater likelihood that qualitative research would be subjective and

erroneous, which increases the likelihood of ineffectual outcomes. Conversely, quantitative

approaches concentrate on quantifying data and tracking empirical factors (Rahi, 2017). In order

to investigate significance and variances, this approach requires bigger sample sizes and use

15
statistical procedures. Researchers can identify issues that require more investigation and create

hypotheses with the aid of quantitative research.

● Sampling

There are two forms of sampling: probability and non-probability. In probability sampling,

researchers employ tools connected to probability theory to pick a sample from a broader

population (Flick, 2012). Statistical theory is utilised in this sampling process to randomly select

a small sample size from a larger population group. Non-probability sampling is a technique

where samples are chosen based on the researcher's discretion. This probability sampling is used

in exploratory and qualitative research that is carried out through observation.

Purposive sampling was chosen for this investigation through the use of probability sampling

techniques. This kind of random sampling technique involves the researcher purposefully

selecting a sample that provides data relevant to the research questions. Purposive sampling was

used to choose 100 participants (Verma, 2023). These respondents answered questions in a

closed-loop fashion with recorded survey results. Every participant received a consent document

indicating their freedom to participate in the interview. Nobody was coerced into taking part in

the survey. This sampling is simple to use and has helped in connecting with the target

population alone.

● Data analysis

Data analysis is the process of organising facts and numbers to address research issues. It is

crucial for both data interpretation and research answer discovery. Descriptive thematic data

analysis was selected since the study's goal is to explore long-term legal changes for marital rape

in order to increase women's empowerment (Irene, 2014). In order to provide theory that is

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connected to study findings, this approach has helped researchers by providing themes that

support research objectives.

● Ethical Consideration

This study placed a strong emphasis on ethics by requiring individuals to give informed consent

before participating. All the data associated with this research were efficiently stored to ensure

data security and prevent unauthorised access. Peer-reviewed publications were the only

authentic sources of data used in this study, which exclusively collected data from reliable

academic sources. Since each piece of work in this study was thoroughly examined, the

likelihood of plagiarism was quite low.

● Limitations

The rationale behind the work is quite clear since it reviews the present socio-legal scenario. The

research needs to identify why there is a barrier behind the criminalisation of marital rape. While

doing the research some resources were found to be paid. Since the projects are not backed up by

the university, the paid elements were hard to access. Most importantly, time constraints were

limiting the research as there was less time allocated to gather field data. The research can only

suggest methods by which the situation can be improved. However, there is no authority

provided to manage the acts.

Research Dimensions

● Survey results and literature review

The research uses close ended questions of survey results to organise the content. The best ever

literatures across the continents will be utilised in this case. The literatures will be searched in

the scholarly databases.

Expected Outcomes and Implications

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 ● Understanding the arguments on criminalisation of marital rape

The Indian courts and non-governmental organisations have provided several justification in

favour of criminalising marital rape. The arguments on criminalisation are important to protect

the basic human rights of a woman. Physical and psychological effects on a victim’s health

highly affects the person’s overall existence (Verma, 2023). If the law against marital rape is not

implemented then it will keep on growing while a violation of the constitution will be seen. The

violation will also include not following article 14. Irrespective of the religion, ethnicity and

gender each individual is entitled to get the equal protection from law. The reformation of law is

important. The state’s commitment towards providing an independent lifestyle to women helps

her in persuading happiness.

The future generation also needs a clean and safe environment. This environment can only be

provided by understanding how human rights can be preserved for a woman. A woman whether

married or not has full rights over her body and she can say no to any person in terms of sexual

activities.

● Needs for the enforcement of domestic violence protection act

Marital rape act cannot stand alone and it will require clauses which will be taken from the

domestic violence act. The domestic violence protection act helps in managing the physical

assaults and battery. Eliminating all forms of discrimination against women is possible via

eliminating the physical torture. Helping the women to manage their human rights allows them

to fight against miscarriages, early pregnancy, unwanted pregnancy, STD, and unsafe abortions.

The right to family equality helps in managing gender based violence. Getting rid of the gender

stereotypes is essential while making it clear that the woman is not a husband’s property.

18
The message has to be pretty clear on the point that marriage does not give a person liberty to

anything and everything forcefully with the wife (Singh, 2022). Just because a man is taking

responsibility for a woman financially it never makes sense to treat the wife as a sex slave.

Imposing penalties for rape in married relationships is a necessary first step towards

criminalising the act itself. One of the most important aspects of managing marital rape is to

make it illegal to claim marital status as an excuse while rape charges are imposed. The next in

line is the establishment of police practices. The authorities in power need to become more

sensitive while dealing with such abuses.

● Conveying the benefits of protection against domestic violence for women

The section 498A of the Indian Penal Code was enacted in 1983 to manage any sort of assault on

the women by the spouse or in-laws. Any nasty behaviour was supposed to be mitigated through

this law. However, the law only protects the women from being physically tortured. Not a single

stance in the law talked about the forceful sexual penetration by the spouse. The concept of

consent is the least that one can expect in the act. It is evident that the society’s norms and

culture are always preferring the men and the one who is providing. Sometimes the woman

might find that the remedy is ineffective since the husband and the family could be only charged

with physical trauma. Hence, the research aims are justified and it is expected to invoke human

emotions in hearts of law makers so that they take steps against the crime.

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Verma, A.K., 2023. Problems Relating to Marital Rape Laws in India. Issue 1 Indian JL & Legal

Rsch., 5, p.1.

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