Marital Rape in Pakistan
Author: Anna Magdalena Comploi
Department: Pakistan Team
Marital rape is generally defined as “unwanted sexual acts by a spouse or ex-spouse that are committed without the other person’s consent” (US Legal, n.d.). According to a 2002 study – which assessed the magnitude of domestic violence inflicted on women by their husbands in Pakistan – only seven out of 216 married women (3.2 percent) never endured any type of domestic violence (Shaikh, 2003). Most women reported being shouted or yelled at, while others reported being threatened, slapped, punched, kicked, pushed or assaulted with a gun/knife (Shaikh, 2003). In the same study, 98 out of the 216 women reported having experienced non-consensual sex (Shaikh, 2003). Only 35.4 percent of the women had told someone about the domestic abuse (Shaikh, 2003).
In Pakistan, many men and women are raised to believe that men have the right to have sex in a marriage. As sex and domestic abuse are stigmatised and a taboo subject in Pakistan, women often refrain from reporting rape. According to Zohra Yusuf, ex-chairperson of Pakistan’s Human Rights Commission, marital rape is underreported in Pakistan because victims are often confused about their own rights (Shairani, 2022). As a result, some women believe that their husbands are entitled to demand sex (Shairani, 2022). The lack of awareness or sensitivity of the law enforcement while handling reports of domestic violence contributes to the problem (Shairani, 2022). Law enforcement often refuses to investigate domestic and sexual violence because it is considered to be a ‘family matter’ (Shairani, 2022). In addition, religion is frequently used as an excuse to coerce women into having sex. In an interview, a Pakistani woman reported that her husband would tell her that the angels would curse her if she denied sex. Islamic clerics and leaders have repeatedly failed to condemn marital rape and, in some instances, have even condoned it, claiming that the marriage covenant establishes consent for sex within the marriage (Shairani, 2022).
In Pakistan, while the legal recognition of rape itself has improved, the status of marital rape is still not entirely clear in practice (Shairani, 2022). In 1979, Pakistani law defined rape as “forced sex outside of a marriage”, implying that rape inside marriage was not legally rape and, therefore, entirely without legal recourse (Shairani, 2022). In 2006, a new law to better protect women was passed, redefining rape as sex without a woman’s consent (Shairani, 2022). Section 375 of the Pakistan Penal Code holds that “a man is said to commit rape who has sexual intercourse with a woman without her consent and there is penetration” (Munim, 2020). This definition seems to encompass marital rape and therefore make it a punishable crime, however there was no explicit mention of marriage in the updated definition (Shairani, 2022). In light of the systemic issues concerning marital rape and the previously permissive (1979) legal definition, such an omission is regrettable (Shairani, 2022). Section 376 of the Pakistan Penal Code prescribes the death penalty or a sentence of between ten and 25 years in conjunction with a fine for the crime of rape. However, it does not give any further clarifications on marital rape. Until 2018, there were no known convictions on the grounds of marital rape in Pakistan (Shairani, 2022). Even after 2018, official complaints of marital rape remain very low (Shairani, 2022). According to a Pakistani high court lawyer, even when marital rape is reported, it often does not go to trial and is generally not considered a ground for separation (Shairani, 2022).
Pakistan’s Constitution enshrines equality of all citizens in Article 25, explicitly stating that there shall be no discrimination on the basis of sex. Women are protected by fundamental rights under international law such as by the right to equality and non-discrimination (Randall and Venkatesh, 2015). Marital rape impairs the physical and psychological security of the person and therefore impairs women’s full enjoyment of the right to liberty and security in their homes (Randall and Venkatesh, 2015). The right to liberty and security is enshrined in Article 9 of the International Covenant on Civil and Political Rights (ICCPR) and – according to General Comment 35 on Article 9 – obliges States to respond appropriately to patterns of violence against women, including in instances of domestic violence (Human Rights Committee, 2014). In addition, the right to be free from torture, cruel inhuman and degrading treatment encompasses the right to be free from domestic violence (Randall and Venkatesh, 2015). Marital rape violates women’s personal integrity and dignity and can result in both physical and mental distress (Woldu, 2016). The Human Rights Committee has consistently held that State Parties to the ICCPR have an obligation to take all measures to effectively combat violence against women. This includes criminalising and defining domestic violence, including marital rape (Human Rights Committee, 2009). Pakistan is also a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which additionally protects women against all forms of discrimination, including sexual violence. The Committee on the Elimination of Discrimination against Women has also adopted General Recommendation No. 19, which discusses violence against women and holds that gender-based violence is a form of discrimination that impacts women’s ability to enjoy rights and freedoms on a basis of equality.
Despite laws prohibiting rape, marital rape remains incredibly common and underreported (Human Rights Watch, 2020). Some suggestions to encourage victims to report marital rape include adopting measures at the national level to prevent, investigate and punish marital rape by adopting policies that ensure that perpetrators are investigated and prosecuted impartially and effectively (Human Rights Watch, 2020). The legal definition of rape should be updated to make it explicitly clear that this includes rape inside of a marriage or by former marital partners to help tackle inaction and misunderstanding of this specific issue. In addition, Pakistan should develop a complaints mechanism that is handled in a confidential and swift manner with a clear procedure, so that victims of marital rape can submit complaints without fear of retaliation by their husbands (Human Rights Watch, 2020). This should be accompanied by a nationwide awareness campaign to tackle cultural misunderstandings (Human Rights Watch, 2020). This could be done by, for instance, holding seminars in schools to educate communities about the illegality and immorality of rape, legal remedies for victims, legal pathways against perpetrators and educating on the concept of sexual consent (including in the context of relationships/marriage) (Human Rights Watch, 2020). Education should be used in conjunction with lobbying for the condemnation of marital rape by both political and religious authority figures (Human Rights Watch, 2020). In addition, Pakistan should start collecting data on sexual violence against women to help inform policy and prevention initiatives (Human Rights Watch, 2020). Finally, Pakistan should ensure that all state agents, particularly prosecutors, judges and police officers, receive mandatory training on the appropriate response and protocol in cases of marital rape, including on the vulnerability of victims (Human Rights Watch, 2020).
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Pakistan Penal Code, Section 375
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