Nothing that I have to say in this article in criticism of the failures in government policy is new or clever. It is merely the umpteenth rehashing of the anger and frustration that the women of Bangladesh feel every day, both in public and in private.

More than a year after momentous feminist protests around the country and a writ petition questioning the legality of marital rape, the heinous crime has still not been criminalised. While it is by no means the most significant problem plaguing our sexual offence related laws, its criminalisation is one of the many reforms that might elevate our flagrantly antiquated laws into a somewhat more acceptable and equitable version. 

Bangladesh does not have a single codified statute dealing with sexual offences. Section 375 of the Penal Code 1860 specifically states that non-consensual forced intercourse with a woman is rape unless it is committed by a husband upon his wife. Only if the wife is younger than 13, the said act of non-consensual forced intercourse would be considered rape. Not only is this definition as strict, inadequate and inflexible as it gets, but it also fails to allow male and transgender victims, and wives raped by husbands, to come forward. There is also a glaring lack of harmony among our multiple scattered provisions when it comes to defining rape. For instance, section 9(1) of the Women and Children Repression Prevention Act 2000 says that wives under the age of 16 (inconsistent with the Penal Code 1860) can be raped by their husbands. Not one, but two messy and dubious definitions later, we still don't have any acknowledgment of a terrible offence which probably happens to hundreds of women every day behind closed doors. 

Crimes, punishment and morality are a reflection of the sociopolitical climate of a country. Threatening women with rape and violence has long been used as a weapon in our culture. It is not about sexual gratification or pleasure as much as it is about exerting power. Whether a Hindu home is being burned down or a student is being berated for wanting to pay half fare on public transport—men feel comfortable topping the attack off with a casual threat of rape. Perpetrators know the odds are stacked against the victim and she will probably never go through the traumatic ordeal of seeking justice. So, in a culture where random men believe they can exert power over women for any reason whatsoever, why isn't our Parliament willing to afford women some basic safety by criminalising rape by their husbands, since exerting power as a husband is so much easier than on the streets, and statistically more probable?

In October 2020, amidst already ongoing protests, a 14-year-old child bride from Tangail died due to excessive genital bleeding as a result of repeated forced intercourse by her 34-year-old husband. It brought to light the issue of marital rape once again. It consequently prompted a writ petition that argued that section 375 of the Penal Code 1860 and section 9(1) of the Women and Children Repression Prevention Act 2000 discriminate against the victims of rape based on their marital status. The High Court Division issued a rule nisi in favour of the petitioners and asked the government to show cause as to why the marital rape exceptions in these sections should not be declared as void and why they should accordingly not be repealed.

While the Bangladesh judiciary has taken a step in the right direction by issuing this rule nisi, our lawmakers, however, have chosen to completely ignore the plight of women in this country. So far, there has been no action from the government. All we received in response of the protests was a lazy handout in the form of capital punishment as a penalty for rape, which at best will deter more women from reporting their rape and at worst, induce the rapists to kill their victims.

"…The idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections… is no longer acceptable. It can never have been other than a fiction, and fiction is a poor basis for the criminal law." In 1991, this groundbreaking judgment was delivered in R v R, criminalising what was once considered "impossible" in English legal concept. It arose out of a wife alleging attempted rape by her husband in the House of Lords. Following this decision, marital rape was statutorily criminalised in England in 1994.

In sheer frustration, I have asked myself this question time and again: What is the excuse or justification for not criminalising marital rape in Bangladesh, something that is unequivocally considered an offence in about 150 countries? What likely scenarios do our MPs think will occur if one of them decides to introduce amendments of these antiquated and deeply misogynistic laws of our country?

The government is perhaps afraid of the protests by hordes of men that would ensue in the wake of such an amendment allowing women to have control over their own bodies. On top of that external fear, we also need to ask whether our male-dominated Parliament itself would get enough affirmative votes to pass the amendment. After all, legislative bodies are simply a microcosm of society at large and it is no secret that our society at large is severely misogynistic. There is also a strange obsession in our culture about keeping our moral fabric intact or with preserving the "sanctity" of the institution of marriage. If this is a concern at all in their minds when it comes to criminalising marital rape, then we need to ask why we want to save marriages in which a husband rapes his wife.

For the most part, by not criminalising marital rape, lawmakers are pandering to the idea that, even in theory, the wife does not deserve to have equal rights in the conjugal relationship and to have autonomy over her own body. I say "in theory" because, in practice, seeking justice against marital rape would be even more difficult for a woman than for non-marital rapes. For starters, she would be talked into not pressing charges by family members; the police would laugh the case off and try to convince her to sort it out with her husband; and if she ever reaches the court, the trauma of the ordeal would haunt her forever, or maybe some judge would have the audacity to question why she did not come forward within 72 hours of her husband raping her.

There is no doubt that our laws are scarcely implemented due to the gatekeeping of society and judicial hurdles. When there are laws in concrete existence, we at least have an option to demand justice. However, in the absolute absence of laws, a survivor of marital rape has no way to have her sufferings legally acknowledged. If the state cares about the women of this country, they have to manifestly show it via actions and criminalise this act at once. If the lawmakers sitting inside our Parliament went through the actual lived experiences of an everyday woman in this country, they would find that not only are women in Bangladesh at risk on the streets, but also inside their own homes. I am not sure if this revelation would make any of our lawmakers a bit uncomfortable; however, this reality makes every woman in this country profoundly sad.

Anupoma Joyeeta Joyee is a Barrister-at-Law.

Email: anupomajoyee@gmail.com.