Photo courtesy of Free Press Journal
There has been a noticeable increase in the amount of public attention directed towards the lack of safety felt by women and girls in the last few years. The global movement 16 Days Of Activism to support the Elimination of Violence Against Women has gained momentum. And it is not merely emblematic or performative. It is supported by the year long everyday practice of grassroots organizations working to help women escaping from incidents of violence and terror in their own homes, doing the ongoing work of providing refuges and safe places, advice on medical, legal and financial matters and assisting women fleeing from domestic terrorism to find their standing in society again.
In the past several weeks, the case of Gisele Pelicot in France has drawn attention to a significant change in the way that the public perception of victims of domestic violence and domestic assault has moved from condemnation of the victim to accusation of the perpetrators.
In Sri Lanka, a woman with a reputation as a successful entrepreneur and beauty professional has spoken publicly on the Pulse programme Stigma hosted by Aritha Wickremasinghe about the violence she endured in her marriage. The Shhh! Talk About Taboos YouTube show hosted by Shanuki De Alwis has opened up the issue of domestic violence in a programme called Unbeaten. In every case, the aim has been to destigmatise the experience of enduring violence and holding the perpetrators accountable.
These stories are hard to tell and also very difficult to hear. It is shocking to hear women describe the disrespect, the abusive language, the verbal contempt and the insults and accusations directed at them and the escalating violence they endure within the supposed sanctity of their homes. Underlying all the stories is a compulsive controlling behaviour on the part of the male partner, which manifests both in small and large ways.
Indeed, in the early stages of connection, control may seem to be a sign of authority, of dominance, of masterfulness, which many of us are socially trained to find attractive. We may feel that a man’s signs of jealousy or desire to know our whereabouts or dictate what we wear or how we conduct ourselves is a sign of our partner’s positive attention, of their love, of their sense of ownership.
The words of the marriage ceremony in many cultures include strong indications of this exclusivity and the promises made for generations have included a sense of submission of the female partner to the male. He is supposed to be her sword and shield, her protector and provider. In exchange for this promised mantle of security, she offers her devotion and her obedience and her trust and respect for his authority.
Romance novels, romcom movies and almost every airbrushed fairytale with a happy ending venerates this dynamic. Most compelling are the storylines in which the woman saves the man and inspires him to be a better being. Bad boys and even beasts are seen as redeemable if they are loved by the “right woman”.
However, in practice the basis of this mutual understanding is often fractured by the male partner’s assertion of their entitlement in violation of the woman’s dignity and safety and right to autonomy. Most recently, in the wake of the recent US Election, we have seen the “Your Body, My Choice” slogan being formed to mock women’s right to make decisions about their reproductive choices and bodily autonomy.
In days gone by, a woman might proudly describe herself as spoken for when a man asks her to marry him. It’s a sign of her value, of her desirability and her viability. Why then, after entering the marriage commitment, do so many women find themselves depreciated, devalued and degraded?
Victim blaming is an inherent aspect of this kind of abuse. And it is not only the specific perpetrators who engage in this misdirected judgment and scorn but society and the community at large. This above all is the pivotal point at which all the activism in this area has been directed. The perpetrators seem to feel no shame and any pity they feel is directed towards themselves and their grievances for which they try to blame their partner.
This violent behaviour, psychological, emotional and physical, occurs within a wider society which has objectified women and sexualised girls. The men’s aggressive behaviour and early warning signs of their gross disrespect have been normalised or excused as the result of alcoholism or drug abuse or anger management issues. The women they attack are blamed for provoking them.
It is shocking to hear women describe the disrespect, the abusive language, the verbal contempt and the insults and accusations directed at them and the escalating violence they endure within the supposed sanctity of their homes.
The emergence of the shadow pandemic of rising domestic violence in the past four years drew attention to the problem in an intense way as women and children were forced by law to remain within the confines of their home, at danger to themselves if their partner was abusive to them and their children. Economic dependence on an abusive spouse, rising unemployment levels in society and the sense of worthlessness as well as economic vulnerability generated by job loss in these years resulted in escalating domestic violence.
Also in these years, and compounded by the internet platforms like Tik Tok and Instagram, the rise of the incel movement has intensified the existing misogyny which was already prevalent in society. Women in such belief systems are seen as playing games with men, entrapping them, using them, exploiting them, rejecting and above all, disrespecting them, are a threat to the stereotypical masculine sense of pride.
In the 1990s, judges in the UK and Australia were on record as stating that “a little rough handling” was acceptable in marriage. This euphemism showed the disrespect that even highly educated authority figures have directed towards “women’s issues” and the damaging effect that masculine entitlement has had on the ways issues are perceived and laws enacted and applied to govern our behaviour.
Gisele Pelicot’s case shows a woman being drugged without her knowledge or consent and offered by her husband in her unconscious condition to multiple perpetrators of rape. These assaults on her body and her dignity were recorded on video – a further violation of her rights to privacy and respect – in her own marital home and in the marital bed that she unknowingly shared with her husband.
The case in its extreme circumstances sharply highlights the core principle of consent, which is the basis of all civilized relationships.
Marital rape in Sri Lanka: The legal and social context
Marital rape is a deeply concerning issue that remains under addressed in Sri Lanka. While non-consensual sex within marriage has been criminalised in many countries, Sri Lanka continues to uphold a legal exemption for marital rape under its Penal Code. This exemption, which was reinforced through the 1995 Amendment (Section 363(d)), treats rape within marriage as an exception, allowing husbands to have sexual intercourse with their wives without the need for consent unless they are judicially separated. This legal framework, stemming from patriarchal beliefs about marriage and gender roles, places Sri Lanka in the minority of countries that have not yet fully recognised marital rape as a crime.
To understand this issue we must explore the socio-cultural factors that have contributed to the persistence of the marital rape exemption, compare the legal situation in Sri Lanka with other jurisdictions that have criminalised marital rape and propose pathways for reform that prioritise the protection of victims, particularly women, from sexual violence in marriage.
Legal landscape: Historical context and current laws
In Sri Lanka, the legal treatment of marital rape remains a significant gap in the country’s legal protections against sexual violence. Section 363(d) of the Sri Lankan Penal Code, as amended in 1995, provides an exemption for husbands from being charged with rape if they engage in non-consensual sex with their wives. This exemption only applies when the wife and husband are not judicially separated or living apart under a written agreement. This outdated provision reflects long standing patriarchal views of marriage as an institution in which the wife’s consent is assumed regardless of her personal wishes or autonomy.
Historically, the concept of marital rape was not recognised by law in many parts of the world, rooted in the view that marriage granted husbands the “right” to sexual access to their wives. This idea of “conjugal rights” perpetuates a sense of entitlement where consent is presumed simply because of the marital bond. In Sri Lanka, this concept continues to influence the legal framework with the justice system failing to protect victims of marital rape adequately. The protection offered to victims under the 2005 Prevention of Domestic Violence Act (PDVA) does not explicitly address marital rape, which creates significant legal ambiguity and gaps in justice for victims.
Although the PDVA allows victims of domestic violence including sexual assault to seek protective orders, the legal scope is limited and it does not directly address the criminalisation of marital rape. Furthermore, despite attempts at reform such as the proposal by former Minister of Women’s Affairs Thalatha Athukorala to amend Clause 362A of the Penal Code, marital rape remains largely uncriminalised. This proposal, which was intended to criminalise marital rape, was referred to the Legal Draftsman and promised to be presented to Parliament in 2018. However, due to political and social resistance the law was not passed, leaving the issue unresolved.
Comparative perspectives: Global legal responses to marital rape
A key part of this analysis is a comparative legal approach to examining how other countries have dealt with the issue of marital rape. In nations such as the UK, the US, Canada, Australia and India, marital rape is explicitly criminalised, reflecting a growing recognition of sexual autonomy and the need to protect individuals from violence regardless of marital status.
For instance in the UK, the law has consistently upheld the principle that consent is necessary in all sexual activities regardless of the relationship between the individuals involved. The idea that marriage gives the husband a blanket “right” to sexual access has been unequivocally rejected. Similarly in the US, the legal framework around marital rape has evolved over time with most states now criminalising non-consensual sex within marriage. The shift in legal attitudes reflects broader societal changes in attitudes toward gender equality and the protection of women’s rights.
In India, marital rape remains a contentious issue. While the law does not criminalise marital rape under most circumstances, there has been growing advocacy for its inclusion in legal definitions of rape. India’s legal system continues to struggle with balancing traditional views of marriage with the principles of gender equality and personal autonomy.
Australia, on the other hand, has made significant strides in criminalising marital rape. The country’s laws now treat sexual violence in marriage the same as any other form of rape with a focus on consent and victim protection. These international examples highlight the growing global consensus that marriage does not imply consent and that sexual violence within marriage should be treated with the same severity as any other form of sexual assault.
Barriers to reform in Sri Lanka
Despite global shifts in legal thought and social attitudes, Sri Lanka faces significant barriers to criminalising marital rape. One of the main obstacles is the deep-rooted patriarchal mindset that continues to influence the country’s legal, social and cultural frameworks. In many parts of Sri Lanka, traditional gender roles and attitudes toward marriage still dominate, leading to widespread acceptance of the notion that a wife’s consent is secondary to the husband’s perceived rights.
There is also considerable resistance from certain religious and cultural groups that view the criminalisation of marital rape as a challenge to the sanctity of marriage. These views often overlap with concerns about protecting family integrity and maintaining social order. Additionally, the political will to tackle such deeply ingrained issues is often lacking with lawmakers fearing backlash from conservative factions of society.
Moreover, Sri Lanka’s legal system faces structural challenges that prevent the full implementation of protections for women. For instance, while the PDVA allows victims to seek protection orders, the actual enforcement of these orders can be inconsistent. Police officers, courts and other institutions involved in the justice system may not always be adequately trained or equipped to handle cases of domestic violence, particularly when it involves marital rape.
The path forward: Reform and advocacy
The recent proposal by Sri Lanka’s former Minister of Justice, Wijedasa Rajapakshe, to amend the Penal Code and criminalise marital rape (with the exception of cases where judicial separation has occurred) marks a significant development in the fight for gender justice. The proposed amendment, however, was met with public backlash, particularly due to another controversial amendment concerning the age of consent. As a result, the amendment was retracted although it remains under revision. This incident underscores the deep-seated resistance to legal reforms that challenge traditional views on marriage and gender roles.
For true progress to be made, there needs to be a comprehensive approach to reforming the legal framework surrounding marital rape. First and foremost, marital rape must be criminalised in the Penal Code without exceptions. This would send a clear message that consent is a fundamental right regardless of marital status. Additionally, there must be greater public awareness and education on the issue to combat the entrenched cultural norms that perpetuate gender inequality and violence.
Legal reforms should be accompanied by strengthened support systems for victims including better training for law enforcement, greater accessibility to legal aid and the establishment of victim-centred processes that prioritise their safety and wellbeing. Moreover, the government must invest in public awareness campaigns to challenge the societal acceptance of marital rape and educate the population on the importance of consent and sexual autonomy.
Marital rape in Sri Lanka remains an under addressed issue that exposes the country’s legal and social deficiencies in protecting women from sexual violence. Despite the growing global recognition that marital rape must be treated as a crime, Sri Lanka has yet to fully criminalise this form of abuse. By critically examining the legal and social landscape surrounding marital rape, this study highlights the barriers to reform and calls for comprehensive legal changes that prioritise the protection and empowerment of victims. The path forward requires not only legal reforms but also a shift in societal attitudes that acknowledges and respects the autonomy and rights of women in marriage. It is only through these combined efforts that marital rape can be effectively addressed in Sri Lanka, providing justice and support for those affected.