YATIN VARMA
(Barrister)

Mauritius has recently been reviewed by the United Nations Committee on the Elimination of all Forms of Discrimination Against Women and the Universal Periodic Review (UPR). In its concluding observations on the eighth periodic report of Mauritius on 09 November, 2018, the Committee stated it remained concerned at the gaps in national legislation on some forms of gender-based violence, including the lack of an explicit prohibition of marital rape. The decision to criminalize marital rape is long overdue.

Marital rape refers to rape committed by a husband on his wife. Marital rape is considered to be a violation of the fundamental right of a woman. It has been argued that whatever occurs within the private sphere of a marriage is not the responsibility of the State. Nevertheless, if the State does not penetrate this private sphere, a woman is left with little remedy when raped by her husband. Marriage cannot presuppose consent of the wife to every act of sexual intercourse with her husband.

The contention is that, when a woman gets married, she automatically gives unequivocal and irrevocable rights to the husband to do as he wishes. In other words, if seen under this spectrum, a woman is ripped of her right to say no in exchange of the marital vows she takes. Women cannot be considered to be the property of men post marriage with no autonomy or agency over their bodies.

Article 1 of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) defines the term discrimination against women as being “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2 of CEDAW mandates that the principle of equality should be adhered to. State parties should condemn discrimination against women in any form and irrefutably non-recognition of marital rape can be construed as a form of discrimination. CEDAW goes further to stress that state parties should without delay implement legislation or other measures to counter such occurrences.

Even in its 19th recommendation, the Committee suggested that Mauritius should criminalize marital rape. However, till date no such step has been undertaken. There is no specific offence of marital rape but s.249 of our Criminal Code does criminalize rape. Some assertions were made in the 2010 periodic report that an express reference of this offence was being made in the Sexual Offences Bill, however to date we are yet to criminalize this offence. The Committee noted with grave concern in its concluding observation of 2011 that Mauritius has failed to criminalize marital rape. Regrettably the situation remains unchanged today as the Sexual Offences Bill has long been buried although Anerood Jugnauth used its non enactment as one of the reasons to resign as President of the Republic in 2012.

One of the landmark cases regarding marital rape would be the famous United Kingdom case, R v R (1991) 3 WLR 767 HL, whereby the House of Lords overturned the matrimonial exception to rape. It was so aptly highlighted by Lord Keith that “Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable”.
This case brought a wave of change in its wake which many other countries followed. There exist a range of countries which have explicitly criminalized marital rape or have considered it to be a distinct offence. Marital rape is a specific offence in approximately 106 countries and is documented as a desecration of human rights. These include Namibia, Bhutan, United States of America, Australia, Canada, New Zealand, Ireland, Austria, Switzerland, Spain, Finland, Belgium, France, Germany, Serbia, Hungary, Luxembourg, Netherlands, South Africa, Thailand, Ghana and Malaysia. Singapore’s fourth periodic review to CEDAW 2008 highlighted the amendment to the Penal Code that has criminalized forced sex on a spouse under certain circumstances.

In January 2013, the Justice Verma Committee in India submitted its report recommending the removal of the marital rape exception underlining that “the exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. Marriage should not be considered as an irrevocable consent to sexual acts”. In short, the committee advocated for the criminalization of marital rape.
The debate of marital rape is fundamental in establishing substantive equality for married women who are otherwise relegated to the confines of their home. It is crucial to recognize that this is a major lacuna in our criminal law defeating women equality and autonomy. The time is, therefore, ripe in Mauritius to create the specific offence of marital rape.