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Is Consensual Sex Rape, And Non-Consensual Sex Marriage?

10/01/2015 8:05 AM IST | Updated 15/07/2016 8:24 AM IST
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NEW DELHI, INDIA - MARH 13: The groom incenses which is believed to bring plentifulness, during his wedding ceremony in the outskirts of New Delhi, India on March 13, 2014. Usually around 500 to 1000 guests wearing traditional clothes, attend the traditional wedding ceremony. The ceremony including traditional foods, music and dance, may differ from religion, culture and region. (Photo by Mohamed Hossam/Anadolu Agency/Getty Images)

Last month, a police headquarters in India set up a committee to investigate rape charges brought by a female police officer against one of her seniors. The President of the police service association said, "When a woman police officer muster[s] courage to lodge an FIR against her superior, it means something went wrong between them." This would seem like a proactive step by the police towards addressing violence on women amongst its own ranks, except that it is unclear, how and why this case even constitutes rape. The woman had stated that she had a consensual sexual relationship with her senior assuming he'd marry her. But since he refused to, she says she was raped.

In a ruling on a similar case brought by a female lawyer against her colleague, a Mumbai court stated that consensual sex in retrospect could not be re-construed as rape depending on the course a couple's relationship takes. Oddly, these are not rare cases. Rape cases are often brought forth by women in India who feel that's the only way they can get a lover to marry them. And as in the examples stated, even women working with law enforcement, candidly misuse the rape law. What is more puzzling, is why the legal and criminal systems entertain them? The police and courts clearly expend time and resources on these cases, even as justice evades thousands of actual rape victims in India subject to brutal and/or lethal violence. Police often refuse to register, make arrests or investigate rape and murder cases, and the ones that miraculously make it into the legal system are dragged through trials for years.

Furthermore, there is a host of different forms of non-consensual and brutal forms of sexual violence on girls and women, within Indian society, that the legal and criminal systems don't care to deal with, or even regard as rape.

There is of course the explicit and widely practiced custom of forced marriages, which are socially so accepted, that they are not even discussed in context of the inherent implication of the systemic rape they perpetuate.

All child marriages, by definition, should be treated as the rape of a minor girl, who by virtue of her age is unable to give or withhold consent! With more than 25 million girls married before the age of 10 years, India alone accounts for one-third of the world's "child-brides." 300,000 of these girls, before the age of 15 years, are already the mother of two children. And they account for the highest rates of HIV infection in India. But what no one talks about, is the terror of sexual abuse, rape and torture these children live with. Like this 13-year-old in the book Broken Voices, who says, "I was scared of my husband because he was so much older than me. I never wanted him to come home because I was frightened he might touch me."

Then there is the escalating custom of "trafficked brides," where a family of men buy a 'bride,' who they all share, and then resell. These women, or girls, many of who are under 15, are expected to tolerate gang rapes as a daily part of their married life, and are subject to torture or murder if they refuse or resist. The police don't regard these cases as rape or sex trafficking because it's all within the sanctified institution of marriage.

The Devdasi custom is yet another enduring, age-old tradition of systemic child sexual abuse and rape. Families sell their minor girls as 'brides' to temple gods, where they are subject, to life-long rape and sexual abuse by priests and religious leaders, as in the recent case of a 13-year-old girl, who gave birth. Then there are communities like the Bedia where traditionally daughters are prevented from marrying and forced into prostitution to earn an income for the family.

But most telling, is the position of sexual consent within India's legal vision of marriage. Not only does the Indian law reject the notion of 'marital rape,' but courts have been known to explicitly rule that even when sex is forced by a husband on his wife against her consent, it cannot be regarded as rape! This effectively silences and provides no exit door to women who have to endure extreme sexual violence and torture within their marriages. But perhaps the most grotesque of all, is the law of the Restitution of Conjugal Rights, whereby a court can grant a man sexual access to his separated wife, a law that has been described as "barbarous and vulgar [in which] the government should be abettors in a form of legalized rape." Within this same framework of thinking, Indian courts often drop rape charges against men if they agree to marry their victims.

What this means, is that where "sexual consent" is the central principle in recognizing and defining rape universally, and is key in upholding an individual's human rights and autonomy, in India it is a completely disregarded concept. Unfortunately I find this is true not just in how India views rape, but it is in how westerners view rape of Indian women and girls! This was one of my main criticisms of the film 'Eat, Pray, Love,' where the director, using artistic license to over-ride the actual context of the book, presented the forced wedding of a young Tulsi as a colorful, exotic event that the protagonist advises her to make peace with! It was as if consent is only the privilege of the western woman, where its violation would constitute rape. But for an Indian women--it is just life.

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