Less than 15 per cent of UN member-states have laws against marital rape. Nepal may soon join them, but a vast chasm of societal prejudices needs to be crossed first.
In most nations of the world it is not a crime for a husband to rape his wife – less than 15 per cent of UN member-countries have laws against marital rape – but Nepal is soon to join the ranks of the enlightened.
The Supreme Court of Nepal has declared that marital sex without a wife's consent should be considered rape – and punishable by law.
The landmark May decision resulted from a petition filed in July 2001 by the Forum for Women, Law and Development (FWLD), a women's rights organisation.
"This is a big victory… for women in our country who go through such trauma every day in their homes," FWLD President Sapana Pradhan-Malla declared after the court ruling.
But it may be many months before women who are raped by their husbands get protection and justice. Although the court has ordered the parliament to amend the current rape law to reflect the ruling, it has not given a deadline for the change, which must also receive royal approval.
But the king sacked the government in October. Until then, a charge of rape can only be filed against a man – but not a husband – who has had sexual intercourse with a woman under 16, with or without her consent, or who has had forced sex with a woman over the age of 16.
At present, men found guilty of rape face prison sentences of 6-10 years for rape of girls below 14 years of age, and 3-5 years for girls and women over 14 years old.
The court also directed that men who rape sex workers be given the same punishment as other rapists. Currently, men who rape sex workers -should they be brought to court -pay a paltry fine of 500 rupees ($6) or serve a year in jail.
The ruling also ends the conflict between the Muluki Ain civil code -which is based on Hindu religious principles and beliefs -and the 1990 constitution, which pledges to end all forms of gender discrimination in line with international rights conventions.
In its 15-page statement, the court made clear that religious texts do not condone men who rape their wives. Instead, it said, Hinduism stresses conjugal harmony based on mutual understanding between the husband and wife.
"Violence [against women] is accepted by society -not because our religious texts tell us to, but because society has misinterpreted what they actually say," agrees Bandana Rana of SAATHI, a non-governmental organisation working on gender issues. "Nepalese women are socially conditioned to accept and bear such violence."
A 1997 survey by SAATHI found that 95 per cent of 1,250 married women interviewed experienced some form of domestic violence, and that rape – after beatings – was the second most common form of physical violence.
While many Nepalese welcome the ruling, some are sceptical about its practicality. "I don't see the average Nepali woman going to court [in cases of marital rape]," says Viplob Pratik, a male journalist. "She will fear retaliation and social disapproval."
How disapproving society can be was reflected by the media coverage of the Supreme Court ruling.
"A husband will have to get signed approval to have sex with his wife!"; "Hindu social and religious values undermined"; "Court ruling threatens social harmony" – these were just some of the more shrill newspaper headlines.
Until comprehensive legal provisions clearly set out the kinds of evidence and circumstances needed to prove marital rape, it will be very difficult to prosecute, says attorney Basundhara Thapa. Economically dependent women, especially very young wives and women with children, may have few options -despite new laws.
Thapa offers free legal aid to women at the Kathmandu Legal Aid Consultancy Centre and its Women's Rights Helpline Project. Since the Helpline Project was established in 1999, nearly 6,000 women have sought help, many seeking separation and divorce against husbands with whom life has become a living hell.
Until parliament passes new legislation, Thapa and other legal aid workers are handicapped, having to resort to existing laws in the Civil Code (on bigamy or battering, for instance), which are ineffective in proving marital rape.
Nepali women are not alone in facing this problem. Even in the US, where all 50 states have legislated against marital rape, the crime remains hard to prove. Although data from the 1990s shows that marital rape accounted for approximately 25 per cent of all rapes committed in the US, survivors of marital rape are less likely than survivors of non-sexual violence to report their assaults to police, health workers, rape crisis counsellors or religious advisors.
Family loyalty, fear of a husband's retribution or ignorance about law are some reasons few women report marital rape, US researchers found. In 2002, many US women still believe sex within marriage is an obligation -and define forced sex by their spouse as a "wifely duty" – and that "real" rape only occurs when the attacker is a stranger.
The reality is that marital rape victims are likely to experience multiple sexual assaults, and often suffer severe long-term physical damage. Gynaecological consequences include unplanned pregnancies, miscarriages, stillbirths, infertility and the possibility of sexually transmitted diseases such as HIV infection.
Studies in the US and Britain also show that police response to marital rape is often inadequate and dismissive. A 1996 US study Wife Rape: understanding the response of survivors and service providers found that police -when they learn that the assailant is the woman's husband -may fail to respond to an emergency call, refuse the woman to file a complaint, and even refuse to accompany her to the hospital to collect medical evidence.
"Having a law is a start, but it's not enough," says Rana. "We need to create mechanisms, shelters where the women can stay while they decide what to do and when they have nowhere else to go."
FWLD's Pradhan-Malla remains hopeful. "The judgement has addressed the root cause [of marital rape] -that patriarchal values derive their authority from controlling [women's] sexuality," she says.
"Recognising rape within marriage as a crime is the first step. The second step is to amend the law and to get it passed in parliament. Third, enforcement and awareness measures have to be put in place to create an environment for victims to come forward."