Stop quibbling. Make the law!

Blogging has been touted as a potentially powerful tool for social change. Andrew Sullivan described it as

"... blogging is the first journalistic model that actually harnesses rather than merely exploits the true democratic nature of the web"
[source: andrewsullivan.com]

I want to try and see if these words really mean anything in the Indian context or if the potential of blogs stays just that... a potential!

There's a battle raging in the Indian blogosphere in the past few days. It started out as an innocuous discussion on the fallouts of BJP's loss in the recent general elections, went on to become a debate on what constitutes an 'ad hominem fallacy' and finally morphed into a no-holds barred slugfest on the topic of marital rape.

I do not want to comment on the merits and de-merits of the arguments and rants put forth in this whole debate about marital rape. Every person is entitled to his/her own views and criticizing them outright is not only boorish but also shows mental vacuity. Downplaying the horrors and the agony of rape is not only wrong but also insensitive. Similary blatantly misandrist views are grossly unfair and tend to wrongly generalize matters.

But my point is... given the chance, what kind of a law, against rape, would you formulate?! The current law under the Indian penal code stands as...

A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First- Against her will.

Secondly,- Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly - With or without her consent, when she is under sixteen years of age.

Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
[source: indialawinfo.com]

As can be seen from the last sentence in that excerpt, the Indian Penal Code is incompetent to handle cases of marital rape. Actually, it explicitly excludes marital rape from the definition of 'rape'. As a result, any sexual abuse, violent or non-violent, among married/dating couples and generally among members of the family, remains outside the ambit of the law.

A Task Force was set up with great fanfare, in 2000 by the Women and Child department of the Indian Government, recommended several modifications to the rape laws in India. But the task force went out with a whimper and its recommendations lie forgotten somewhere in a dusty cupboard of some government office.

Simplistically speaking, the removal of the last line from the above excerpt from the IPC would effectively open the doors for prosecution of marital rapists. But is it so simple?? Globally, marriage is considered to be an implicit consent for sexual relations with one's partner. As a result, this argument is often used by husbands while defending themselves against the charges of sexually abusing their wives. The failure of the law to unambiguously define the word 'consent' in context of sexual intercourse is one of the biggest drawbacks of the law against rape. And simply repealing the exception to the rape laws will not serve the purpose. Moreover, there is no provision in the law to take the mental faculties of the victim and the perpetrator into account. As a result, simply defining 'consent' will not suffice either. Another question that needs answering is... who will own the burden of proof? Should it be the prosecution or the defence??

I've just scratched the surface. There are so many nuances and shades to this that the mind boggles. Especially since a traditionally patriarchical society like India will find it difficult to digest the notion of a husband actually 'raping' his wife.

I would like you all to suggest ways in which the current rape law under the IPC could be modified to include marital/dating rape.

I want to see if all this noise results in some sort of a constructive activity.