Library Progress International Print version ISSN 0970 1052

Vol.44 No.3, Jul-Dec 2024: P. 23510-23523 Online version ISSN 2320 317X

Original Article Available online at www.bpasjournals.com

Rape Within Marriage - A Comparative Analysis Towards Indian Law

Reform

Jawa Ratna and Arvind P. Bhanu


Research Scholar, Amity University, Noida

Professor of Law and Addl. Director, Amity Law School, Amity University, Noida.

How to cite this article: Jawa Ratna, Arvind P. Bhanu (2024). Rape Within Marriage - A Comparative Analysis
Towards Indian Law Reform. Library Progress International, 44(3), 23510-23523

Abstract
The issue of rape charges presents significant challenges for victims, perpetrators, and the various authorities
tasked with investigating, prosecuting, and adjudicating these cases. These complexities are exacerbated when the
assailant is someone familiar and trusted by the victim, such as a friend, relative, or spouse. In cases of spousal
rape, establishing a lack of consent is particularly difficult, leading many victims to refrain from reporting the
crime. The phenomenon of underreporting, coupled with entrenched societal stereotypes about women, has
rendered marital rape one of the most misinterpreted offenses in contemporary society. Despite substantial reforms
in criminal law, marital rape continues to be perceived largely as a subset of domestic violence. A comparative
analysis can provide valuable insights into the investigation and study of marital rape, highlighting alternative
approaches to addressing this issue. This paper explores several aspects that are often neglected in comparative
research on criminal procedures, including the influence of judges, the importance of narrative in adversarial trials,
evidentiary rules, the roles and nature of advocacy, the position of victims, and the inherently adversarial character
of trial processes as compared to inquisitorial systems.

INTRODUCTION
Marital rape has gained scholarly attention only in recent years, primarily due to historical norms that rendered
spousal rape unpunishable. It wasn't until the latter half of the 20th century that societal and legal perspectives on
this issue began to evolve.1 The prevalence of sexual and domestic violence in marriages and family structures,
particularly violence against women, has gained significant international focus since the latter part of the 20th
century. However, in numerous countries, marital rape is either not addressed by criminal law or is technically
illegal yet frequently overlooked. The enforcement of laws regarding this issue is inconsistent, influenced by
various factors such as the reluctance of authorities to prosecute, as well as a general lack of awareness among
the public regarding the illegality of non-consensual sexual relations within marriage.
This “reluctance to categorize non-consensual sex among spouses as a criminal act stems from entrenched
traditional views about marriage, interpretations of religious texts, societal perceptions of male and female
sexuality, and cultural norms that often place women in subordinate roles to their husbands. Such attitudes are
still prevalent in many regions worldwide. However, these traditional notions began to be challenged in much of
the Western world during the 1960s and 1970s, largely driven by the second-wave feminist movement, which
emphasized a woman’s right to autonomy over her body and advocated for the abolishment of any legal


Research Scholar, Amity University, Noida

Professor of Law and Addl. Director, Amity Law School, Amity University, Noida.
1
“Aneta Michalska-Warias, “Marital Rape in Poland from the Legal and Criminological Perspectives”
https://iws.gov.pl/wp-content/uploads/2018/09/Aneta-Michalska-Warias-Marital-Rape-in-Poland-from-the-
Legal-and-Criminological-Perspectives-62.pdf.”

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Jawa Ratna, Arvind P. Bhanu

protections that allowed marital rape.”

From the late 20th century onwards, many nations began criminalizing marital rape, a legal shift that was rare
prior to the 1970s. This criminalization took various forms, including the elimination of statutory exemptions
related to rape, judicial rulings, explicit legislative changes to prevent the defense of marriage in such cases, and
the establishment of marital rape as a distinct offense. In many jurisdictions, the applicability of standard rape
laws to marital rape remains ambiguous, although in certain areas, non-consensual sexual acts involving coercion
can be prosecuted under general laws addressing violence, such as assault and battery.
In common-law countries like England and the United States, “the dismantling of the marital rape exemption,
originally articulated by Sir Mathew Hale in the 18th century, was a complex process requiring reinterpretation
of legal statutes and, in some instances, changes to existing laws. In England, the legal acknowledgment of a
husband’s potential culpability for raping his wife was firmly established in 1992 following the landmark House
of Lords case, R. v R. In the U.S., the movement to eliminate the marital rape exemption began in the 1970s,
culminating in North Carolina being the last state to do so in 1993.”
Until recently, there was limited discourse on women's experiences regarding rape and violence in marriages.
However, over the past two decades, there has been a marked increase in scholarly research addressing marital
violence, significantly enhancing our understanding of the vulnerability of women, both wives and cohabiting
partners, to severe and recurrent forms of physical and sexual abuse. This surge in literature coincides with
heightened public and political awareness surrounding the pervasive nature of violence within marriages and the
deficiencies in legal and social responses available to victims.2

METHODOLOGY AND HYPOTHESIS

This article operates on the premise that it is feasible to integrate distinctive elements from a different system
while preserving the fundamental characteristics of the original criminal justice framework. Furthermore, it posits
that the resulting hybrid systems, formed through such adaptations, could potentially surpass the effectiveness of
either of the original systems.

UNDERSTANDING MARITAL RAPE

To grasp the concept of marital rape, one must explore the fundamental nature and societal role of marriage. This
institution, defined through anthropological, cultural, and legal lenses, creates a framework of rights and
responsibilities that are recognized socially among individuals. In various cultures, marriage serves as a
foundational element for legitimizing sexual relationships. However, the issues of sexual violence and physical
abuse within marriages have historically occupied a complex and ambiguous legal territory.
In Hindu culture, the term 'Vivah,' which translates to marriage in Sanskrit, means "to carry away." This
interpretation varies among scholars. One perspective suggests that marriage creates bonds not only between two
individuals but also between their families, ultimately linking the broader society. A primary aim of marriage is
to establish a family structure that legitimizes sexual relations. It is also a connection between kin groups, with
marriage considered a sacred rite among Hindus.
Regardless of the religious context, marriage is often viewed as conferring the right to engage in sexual relations.
The prevailing philosophy surrounding conjugal rights primarily emphasizes procreation and the continuation of
human life. References to marriage, family, and sexuality can be found within the Vedas and Upanishads, though
interpretations reveal divergent views on women's status. Some scholars argue that these traditional values have
historically led to women's subjugation, while others contend that women enjoyed high status in ancient Indian
society. For instance, the Viṣṇu Purāṇa advises that a husband should never force himself on an unwilling wife,
contrasting with the Bṛihadāraṇyaka Upaniṣad, which suggests that a husband should pursue his reproductive
obligations regardless of the wife’s consent.3
Marital rape can be defined as “the act of one spouse using force or violence to engage in sexual activity with the
other.”4 “The term refers to engaging in sexual intercourse with a spouse without their consent. Traditionally,

2
S Francisco & K Painter, (1991). Wife rape in the United Kingdom.
3
“Divya Vedic Shakti, available at: http://www.divyavedicshakti.com (last visited on March 8, 2024).”
4
“Elaine K. Martin, Casey T. Taft, and Patricia A. Resick. "A review of marital rape." Aggression and Violent
Behavior 12.3 (2007): 329-347.”

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Jawa Ratna, Arvind P. Bhanu

many cultures viewed sexual relations within marriage as an entitlement; however, the significance of consent is
equally vital in these relationships as it is among those who are unmarried. Since the twentieth century, there has
been an increasing number of international conventions and advocacy aimed at combating sexual and intimate
partner violence within marriages, particularly focusing on sexual violence against women. 5 Despite the widely
recognized and severe repercussions of any type of coerced sexual act, marital rape continues to exist in a legal
gray area in numerous countries, often overlooked by criminal law and frequently accepted within society. 6”
Marital rape predominantly affects women, though it is not limited to them alone.7 The dynamics of abusive
relationships often create a self-perpetuating cycle of violence between partners, influenced by various
sociocultural and political beliefs. Different interpretations of marriage, traditional views on male and female
sexuality, and societal expectations surrounding the husband-wife relationship contribute to a troubling hesitance
to recognize nonconsensual sex within marriage as a criminal offense. However, these entrenched beliefs began
to face scrutiny in the West during the 1960s and 1970s, a period marked by the rise of second-wave feminism.
This movement emphasized the importance of gender equality, individual autonomy, and the right of women to
control their own bodies and identities.8 Marital rape has historically been neglected in both literature and policy,
with "marriage" often cited as a common justification or defense in cases of sexual assault. This oversight has
resulted in the marginalization of the experiences of survivors, decreased willingness to seek assistance, and
ongoing trauma.

MARITAL RAPE AND THE ADVERSARIAL CRIMINAL JUSTICE SYSTEM OF INDIA

Marriage in India is regarded as a sacred institution, yet it raises significant concerns regarding rights and consent.
“The legal framework defining rape hinges on the notion of consent, which presents difficulties when addressing
issues within the context of marriage. Notably, the legal status of marital rape remains ambiguous in India, placing
the country among just thirty-six nations that have yet to criminalize this act. The understanding of marital rape
in India diverges from international norms, shaped by factors such as educational disparities, poverty, diverse
social customs and beliefs, and the societal perception of marriage as a sacred bond. Despite notable advancements
in various fields, marital rape is not recognized as a crime in India. Even with numerous legal reforms, committee
recommendations, and the introduction of new statutes, this deeply distressing and reprehensible act remains
unpunished. Marital rape is often viewed as the most prevalent and abhorrent expression of cruelty, concealed
behind the facade of marriage in our society.9 Section 375 of IPC, which defines the crime of rape, reflects
antiquated views, particularly highlighted in Rule 2 of its Exemption. This rule stipulates that sexual intercourse
between a husband and wife is not classified as rape if the wife is over the age of fifteen, signaling a problematic
stance on consent within marriage.10”
India has made significant progress in numerous sectors; however, sexual violence occurring within the confines
of marriage remains largely perceived as a private issue, often escaping the attention of public institutions such as
the judiciary. Currently, marital rape is not recognized as a criminal offense in India, leaving the justice system
inadequate in addressing the grievances of married women who endure sexual violence. This form of abuse is
prevalent yet frequently under-reported. While the actual extent of marital rape in India, and indeed worldwide,
remains unclear, various studies suggest it is widespread, despite many officials' reluctance to acknowledge its
existence.11

5
“Jean Pictet, ed. The Geneva Conventions of 12 August 1949: Geneva Convention relative to the protection of
civilian persons in time of war. Vol. 4. International Committee of the Red Cross, 1952.”
6
“Debanjan Banerjee, T.S.Sathyanarayana Rao,The Dark Shadow of Marital Rape: Need to Change the
Narrative. Journal of Psychosexual Health. 2022;4(1):11-13. doi:10.1177/26318318221083709.”
7
Ibid.
8
Supra note 3.
9
“A. Mishra. (2018, April 13). Law On Marital Rape – A Much Needed Reform In Our Legal System - Criminal
Law - India. Www.Mondaq.Com. https://www.mondaq.com/india/crime/691482/law-on-marital-rape-a-
muchneeded-reform-in-our-legal-system.”
10
Ibid.
11
“Shikha. Chhibbar, Sexual Violence in Private Space: Marital Rape in India. Vol. 52. Torkel Opsahl Academic
EPublisher, 2016.”

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Jawa Ratna, Arvind P. Bhanu

In 2011, “a survey in India revealed that one in five men have forced their wives to have sex. 12 Over two-thirds
of married women in India aged 15 to 49 reported experiencing physical violence or being coerced into sexual
activities by their husbands.13 In another study,14 Research indicates that approximately one in seven married
women in India has experienced rape by their husbands at least once. Unfortunately, these women often remain
silent, as the legal framework does not recognize marital rape as a criminal offense. Marital rape serves as a
deliberate means of intimidation, reinforcing the dominance of men over women.15”
Marital rape must be recognized as a grave offense, comparable to murder, culpable homicide, or traditional rape.
It strips women of their dignity, effectively treating them as property meant for a man's satisfaction. This violation
diminishes a person to a state of living fear, akin to a corpse. Medical studies indicate that the effects of marital
rape can be both severe and enduring for women. Lawmakers need to acknowledge that upholding the sanctity of
the Constitution necessitates the protection of married women's dignity.16
The persistent issue of sexual violence against women in India is deeply rooted in entrenched patriarchal norms
and gender discrimination. For married women, the grim reality is that they can be subjected to marital rape within
the confines of their own homes. The legal exemption for marital rape is historically grounded in these patriarchal
standards and established gender hierarchies. In Indian society, which is fundamentally patriarchal, men have
historically been prioritized over women, relegating women to subordinate roles. They have traditionally been
excluded from decision-making processes, regardless of the implications for their lives. Instead, women have
often been relegated to domestic roles, primarily responsible for household tasks. Men, as the primary earners,
have thus enjoyed a higher status and greater respect in society, reinforcing the perception of male superiority
over women.

SUBSTANTIVE LAW ON MARITAL RAPE IN INDIA

The Indian Penal Code
The IPC, hitherto, was the official criminal code of India17, and its purpose is to define crimes and propose
punishments for nearly all punishable criminal offenses. The origins of the Indian Penal Code (IPC) trace back to
1834, when Lord Thomas Babington Macaulay drafted it based on the codification of English law, following
recommendations from India's first Law Commission. The IPC took effect in 1862, establishing a uniform
criminal law throughout British India, although it excluded the princely states. Since India's independence, the
IPC has seen numerous amendments, currently encompassing 23 chapters and 511 sections (Byjus n.d.).
Nonetheless, it remains a contentious relic of colonialism, with many of its provisions still intact.
Under the historical Section 375 of the IPC, which is now Section 63 of the Bharatiya Nyaya Sanhita, 2023, the
rape of an unmarried woman is defined as a crime. However, this section contains an exception that exempts
marital rape from criminalization, unless the wife is below the age of 18. This legal framework grants husbands
immunity under Indian law when they perpetrate rape against their wives. Section 376 of the IPC, now Section
64 of the Bharatiya Nyaya Sanhita, 2023, outlines the penalties for those found guilty of rape, detailing the length
of imprisonment based on the severity of the offense. The exemption for marital rape is rooted in a 1736 assertion
by British jurist Lord Matthew Hale, who claimed that a husband could not be guilty of raping his lawful wife due
to their mutual consent within marriage (Taub 2022, n.p.). This notion, known as Hale’s principle, was the
foundation for England's marital rape exception, which was also imposed in its colonies. In the UK, the legal
immunity for marital rape was abolished and criminalized in 1991 (Siegel 1995). However, despite significant
revisions to Indian criminal laws in 2023, the antiquated marital rape exemption persists in the Bharatiya Nyaya
Sanhita, 2023, under Exception 2 of Section 63.

12
“The International Men and Gender Equality Survey, 2011.”
13
“The United Nations Population Fund Survey, 2000.”
14
“Conducted by the Joint Women’s Programme, an NGO, New Delhi.”
15
“Sana Shakil, “Treat marital sexual abuse as rape”, Times of India, 5 March 2014.”
16
“Supra Note 3 at page 2.”
17
“Towards a comprehensive amendment of criminal laws of India,three new bills, namely, Bharatiya Nyaya
Sanhita,2023, Bharatiya Nagarik Suraksha Sanhita,2023 and Bharatiya Sakshya Adhiniyam,2023 were passed by
the Lok Sabha on 20.12.2023 replacing the earlier Acts.viz. Indian Penal Code,1860, Code of Criminal
Procedure,1973 and Indian Evidence Act, 1872 respectively.”

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Furthermore, sexual relations between a man and his wife who lives separately, whether due to a legal separation
or otherwise, without her consent is punishable by imprisonment for a minimum of two years, potentially
extending to seven years, along with a possible fine (Section 67 of Bharatiya Nyaya Sanhita, 2023; previously
Section 376B of IPC). Consequently, the current substantive criminal legislation in India, namely the Bharatiya
Nyaya Sanhita, 2023 (formerly the IPC of 1860), only provides legal protection to two categories of married
women: those under 18 years and those who are separated from their husbands. In all other scenarios, a woman
lacks legal safeguards against rape by her spouse under the main criminal code.
The Indian Criminal Code also offers some protection to married women against cruelty from their husbands and
in-laws through Section 85 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 498-A IPC, 1860). This
section was introduced in 1983 as part of Chapter XX A of the IPC to prevent mistreatment of wives by their
husbands or relatives. To establish a case under this provision, four criteria must be met: the woman must be
married, she must have experienced cruelty, and the cruelty must have been perpetrated by her husband or his
relatives.
If “the aforementioned conditions are met, the husband or his relatives may face imprisonment for up to three
years and may also be subject to a monetary fine. The definition of “cruelty” for the purposes of Section 85 of the
BNS, 2023 is outlined in a distinct provision, specifically Section 86, in contrast to the previous IPC, where it was
included in Section 498-A. However, whether a married woman can invoke Section 85 of the BNS regarding rape
committed by her husband hinges on whether the act of forced sexual intercourse or sexual conduct aligns with
the definition of cruelty as described in Section 86 of the BNS, 2023. Gujarat High Court in the case of Nimeshbhai
Bharatbhai Desai v. State of Gujarat18 has held that ‘perverted sexual practices with wife without her consent
would certainly lead to psychological and bodily cruelty.’” This judgment however gives a very meagre protection
to women. It covers only ‘perverted sexual activities’ but remains silent on the question forceful regular sexual
intercourse.
The provisions in question are remnants of British colonial legislation that mirror the English legal standards of
that era. Although the marital rape exemption was abolished in England in 1991 through a court ruling and
subsequent legislative changes, India continues to face the consequences of this exemption, clinging to outdated
colonial laws. The recent enactment of the Bharatiya Nyaya Sanhita, 2023, has merely reinforced these archaic
and conservative laws within a new framework. While India does not have specific laws criminalizing the rape of
a wife by her husband, it does offer some protections for women against various forms of domestic abuse through
specialized legislation, such as the Domestic Violence Act, 2005.

MARITAL RAPE AND SPECIAL LEGISLATIONS IN INDIA

The Domestic Violence Act represents a significant civil legislation designed to support victims, particularly
women. This law encompasses various reliefs, such as protection orders, compensatory orders, child custody
arrangements, residence orders, and financial assistance. These provisions aim to aid women in their recovery and
safeguard their matrimonial and human rights after experiencing violence. “The definition of domestic violence
within the framework of the Protection of Women from Domestic Violence Act, 2005 is broad and thorough. It
encompasses not only physical abuse but also emotional, mental, sexual, and economic forms of violence. The
act offers various remedies to survivors, ensuring their rights to their marital homes and compensation for the
violence endured, along with additional support for their rehabilitation. Importantly, the Domestic Violence Act
extends its protection to women in live-in relationships, granting them the ability to seek legal recourse, which is
a significant advancement for those in such partnerships.”
Under India's primary criminal law, “the Bharatiya Nyaya Sanhita, 2023 (formerly known as the IPC, 1860), only
two categories of married women are recognized under rape legislation: those under 18 years of age and those
who are separated from their husbands. There is no specific law that criminalizes marital rape, which means that
a married woman not fitting these two categories who wishes to charge her husband with rape must resort to
Section 498-A of the Indian Penal Code (now Sections 85 of the Bharatiya Nyaya Sanhita, 2023). According to
Indian criminal law, sexual intercourse by a husband with a wife under 18 or who is living separately, whether by
a decree of separation or not, is classified as “rape” (Sections 375 and 376B IPC, which are now addressed in
Section 67 of the Bharatiya Nyaya Sanhita, 2023). Section 67 of the Bharatiya Nyaya Sanhita, 2023 explicitly

18
(2017) R/CR.MA 26957.

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defines "sexual intercourse" in reference to the acts listed in Clauses (a) to (d) of Section 63. This indicates that
any charge of rape involving a woman under 18 or separated from her husband will be prosecuted under the
definitions established in Section 63 of the Bharatiya Nyaya Sanhita, 2023.”

PROCEDURAL LAW ON MARITAL RAPE TRIAL

A significant advancement stemming from the recent changes in criminal law regarding marital rape is the
classification of sexual intercourse by a husband with his wife during separation as cognizable under the new
Bharatiya Nagarik Suraksha Sanhita, 2023. This designation, however, only applies when the victim lodges a
complaint. Despite this progress, the offense remains bailable and is subject to trial in the Court of Session.
Furthermore, the law fails to adequately address cases of non-consensual sexual acts committed by husbands,
thereby compromising women's dignity and autonomy.

BURDEN OF PROOF IN RAPE

Under the Indian Evidence Act, 187219 “the burden of proof is explained. According to Section 101 of the Act,
the burden of proof lies on the person making any claim or asserting any fact.After the case of Tukaram v. the
State of Maharashtra20, popularly known as the Mathura Rape case, the Indian Evidence Act was amended
and Section 114-A was inserted via the Criminal Law Amendment Act, 1983. The burden of proof has been
shifted from the prosecution to the accused in cases of rape. According to Section 114-A of the Indian Evidence
Act, there is a presumption against consent in specific rape scenarios. This section stipulates that if a rape occurs
as defined in any of the clauses of subsection (2) of Section 376 of the Indian Penal Code, and the woman testifies
that she did not consent, the court is required to assume that she did not give her consent.”

CONSENT
In instances of sexual violence, the victim's lack of consent to sexual intercourse is a crucial element. Consent
does not always need to be explicitly communicated; it can be inferred from various circumstances and the nature
of the relationship between the individuals involved. However, the mere absence of objection cannot be interpreted
as consent. A victim may be unable to provide consent due to coercion from the perpetrator or because they are
incapacitated, such as being asleep, under the influence of alcohol, or otherwise mentally or physically unable to
agree. Furthermore, the law recognizes that individuals below the legal age of consent cannot validly consent to
sexual relations with older individuals; such acts are classified as statutory rape or "unlawful sexual intercourse."
Importantly, consent can be retracted at any point, and any sexual activity following a withdrawal of consent is
considered rape.
According to Indian Criminal Law, if the victim claims that consent was not given during the sexual encounter,
the responsibility shifts to the accused to demonstrate that consent was indeed provided.

JUDICIAL INTERPRETATION AND APPROACH TO ‘CONSENT’ IN RAPE CASES

Conventional definitions of rape primarily involve non-consensual sexual intercourse with a woman who is not
married to the perpetrator. In the context of Indian criminal law, the absence of consent is the most crucial element
in establishing the offense of rape. In the case of Bodhisattwa v. Shubhra,21 The Supreme Court has noted that
little progress has been made in improving rape conviction rates, which continue to lag behind those for other
serious crimes. Many women remain reluctant to report incidents of rape due to fear, shame, and the negative
treatment they often receive from medical professionals and law enforcement. To draw a clear conclusion
regarding free and voluntary consent, additional factors must be considered. If the presumption of "innocent until
proven guilty" is abolished, the legal framework would need to actively seek verifiable evidence of lack of
consent.
A pertinent example is “The Public Prosecutor v. Yejjala, where the defendant was acquitted despite compelling

19
Now replaced by the Bharatiya Sakshya Adhiniyam, 2023.
1.1. 20 1979 AIR 185, 1979 SCR (1) 810.

1.1. 21 1996 SCC (1) 490; AIR 1996 SUPREME COURT 922

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evidence. The medico-legal report indicated that the accused had raped a pregnant midwife at her residence, and
the examination confirmed the presence of spermatozoa, noting that the victim was five months pregnant at the
time of the incident. Although the report indicated a history of sexual activity, the court emphasized that medical
evidence showed no significant injuries to the victim's genital area or other major bodily harm, suggesting that
she had not resisted during the alleged assault. The court's rulings in Tukaram v. State of Maharashtra and Pratap
Mishra v. State of Orissa reinforced the notion that evidence of physical injury should accompany any claims of
non-consensual intercourse.”
In Tulsidas Khanolkar v. State of Goa, Justice Arijit Pasayat remarked that while a rapist damages the spirit of a
vulnerable girl, a murderer destroys the physical body of the victim. This distinction highlights the profound
impact of sexual violence on the psychological well-being of survivors, which often remains overlooked in legal
considerations.

MARITAL RAPE LAWS IN ENGLAND

The earliest documented reference to marital rape in the UK can be traced back to Sir Matthew Hale's 1736 work,
“History of the Pleas of the Crown. Hale, who served as Chief Justice of the Court of King’s Bench, asserted that
a husband could not be prosecuted for raping his wife because marriage was viewed as granting ongoing consent.
This perspective persisted until 1992, when forced sexual relations within marriage were finally deemed illegal.
Hale contended that a wife’s consent was irrevocably granted through marriage, implying that she could not
withdraw it.”

HISTORICAL BACKGROUND OF MARITAL RAPE EXEMPTION IN ENGLAND

An extrajudicial statement by British jurist Sir Matthew Hale, lacking any legal foundation, initiated the common
law exemption for marital rape. He asserted that a husband cannot be prosecuted for raping his lawful wife,
claiming that through their marriage contract, the wife has irrevocably consented to sexual relations with her
husband.22 In 1888, English Justice Field was among the first to challenge Hale's assertion regarding the marital
exemption. He remarked, “While the authority of Hale C.J. on this issue is certainly regarded as significant, he
fails to reference any other sources to support his claim, making me reluctant to accept it without further
justification.”23 Hale's diminished credibility has prompted significant criticism from various courts, which have
determined that the marital exemption is not inherently recognized in common law. Nevertheless, Hale's assertion
has historically been regarded as the cornerstone of spousal immunity. Furthermore, a number of other
justifications for the marital rape exemption have emerged from this unfounded claim.24

A “prevalent justification for the exemption of marital rape stems from Hale's belief that marriage functions as a
contractual agreement. According to this perspective, a wife is seen as having given her permanent consent to
engage in sexual relations with her husband at any time he desires. 25 This has given rise to the belief that husbands
possess a "marital right" to engage in sexual relations. The concept of implied consent suggests that within the
bounds of marriage, any sexual interaction is presumed to be consensual, thus negating the possibility of marital
rape.26 The concept of a husband's presumed contractual right to sexual relations has faced criticism for various
reasons. Primarily, the idea of implied consent within rape legislation contradicts the understanding of consent as

22
“Sir Matrhew Hale, The History Of The Pleas Of The Crown 629 (Emlin ed. 1736).”
23
“Regina v. Clarence, 22 Q.B.D. 23,57 (Cr. Cas. Res. 1888) (Field, J., dissenting).”
24
“Lalenya Weintraub Siegel , Note, The Marital Rape Exemption: Evolution to Extinction, 43 Clev. St. L. Rev.
351 (1995).”
25
“SUSAN BROWNMILLER, AGAINST OUR WILL 380 (1975). The exemption of husbands from rape
prosecutions can be traced to our biblical forefathers interpretation of the definition of rape. Any carnal knowledge
outside the marriage contract was deemed unlawful, while any carnal knowledge within the marriage contract was
considered lawful.”
26
“Anne L. Buckborough, Note, Family Law: Recent Developments in the Law of Marital Rape, 1989 ANN.
SURV. AM. L. 343, 345.”

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it is defined in other branches of criminal law.27 The law prohibits individuals from consenting to significant
bodily harm or injury caused by others. In fact, the state has a strong obligation to safeguard its citizens against
serious physical harm. One of the primary criticisms of the implied consent theory is that it seems to apply
exclusively within the context of rape law.28 Domestic relations law indicates that there are various situations in
which a woman has the right to refuse consent to sexual intercourse with her husband. This suggests that if a
woman can deny her husband’s requests for sex at certain times during their marriage, the principle of implied
consent undermines the fundamental justification for maintaining spousal immunity.29”
A significant principle from common law that contributed to the establishment of the marital rape exemption was
the notion of a husband having ownership over his wife, likened to property. The rationale was that a husband
could not assault someone he already possessed; therefore, the act of raping one’s wife was viewed similarly to
an owner stealing from their own belongings. This perspective framed rape not as an offense against the woman
herself, but rather as an infringement on a man’s proprietary rights.30
Another “prevalent rationale in common law for the exemption of marital rape was the notion that, upon marriage,
a wife's identity effectively merged with that of her husband. In 1765, Blackstone articulated this idea by stating
that “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the
woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband;
under whose wing, protection and cover, she performs everything.” This concept, known as the marital unities’
doctrine, asserted that women lacked the legal capacity to own property, enter contracts, or engage in litigation.
Consequently, this doctrine rendered it legally impossible for a husband to rape his wife, as it was argued that a
man could not assault himself.31”

JUDICIAL DEVELOPMENTS IN RELATION TO MARITAL RAPE IN U.K

Although the first reported prosecution of a husband for raping his wife took place in 1949,32 “the concept of
immunity was first addressed in 1888 in the case of R v. Clarence. In this ruling, the judges reached a unanimous
decision, asserting that rape could not be established because the woman had consented to engage in sexual
relations with her husband. As the sexual intercourse was consensual, the conduct was not deemed an ‘assault’
under s 47 of the Act. In R V Clarke (1949)33, In a landmark case, the first recorded prosecution of a husband
for the rape of his wife involved allegations of both rape and assault. At the time of the incident, the couple was
separated due to a court order recently obtained by the wife. The husband’s defense argued that the crime did not
exist in legal terms due to the marriage bond. However, the court determined that the separation order represented
a revocation of the wife's implied consent inherent in the marriage, thereby establishing that the husband could be
found guilty of the charges of rape.”
The majority of rulings focused on instances of marital rape occurring when the wife was living apart from her
husband due to a judicial separation or mutual agreement. In these circumstances, the courts determined that if
the husband engaged in sexual relations with his wife, “he could be prosecuted for rape. Hale's interpretation of
marital obligations persisted as the legal standard until a significant court ruling in 1991. The case of R vs. R
(1991)34 which was heard in the House of Lords in 1991 changed the law to the extent that it determined that
under UK law it was possible for a man to rape his wife. Owen J. determined that a mutual agreement between
the parties is adequate to revoke immunity, emphasizing that such an agreement does not have to be documented
in writing. Additionally, he noted that even without a formal agreement, if either party withdraws from
cohabitation and clearly indicates that consent for sexual intercourse has ended, this action constitutes a revocation

27
“Maria Pracher, Note, The Marital Rape Exemption: A Violation of a Woman's Right of Privacy, 11 GOLDEN
GATE U. L. REV. 717, 730 (1981).”
28
Id.
29
Glasgow, Supra note 12 at 568
30
Note, To Haveand to Hold: The Marita lRape Exemptionand the FourteenthA mendment,99 HARV. L. REV.
1255, 1256 (1986).
31
Anne L. Buckborough, Note, Family Law: Recent Developments in the Law of MaritalRape, 1989 ANN.
SURV. AM. L. 343, 345.
32
R V Clarke 33 Cr App R 216
33
33 Cr App R 216
1.2 34 [1991] 4 All ER 481

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of consent that effectively negates the immunity.35 The ruling was contested based on the marital rape exemption
established by Hale and Archbold. After several appeals, the case ascended to the House of Lords, where a five-
member bench confirmed the Court of Appeal (Criminal Division) decision. This judgment, articulated by Lord
Lane CJ, asserted that "the husband’s immunity no longer exists. We believe it is time for the law to affirm that a
rapist is still considered a rapist under criminal law, regardless of his relationship with the victim.”36

LEGISLATIONS IN RELATION TO MARITAL RAPE IN UNITED KINGDOM

In October 1990, “the Law Commission of the United Kingdom published a working paper examining the
common law principle that, barring specific exceptional cases, a husband cannot be prosecuted for raping his wife.
The Commission provisionally concluded that this rule should be completely abolished. In its report, the Law
Commission indicated that the ruling from the House of Lords in R v. R should be codified into statute. The early
21st century marked a significant revision of the sexual offenses’ legislation in England and Wales. Before these
reforms, the legal framework governing sexual offenses was based on laws enacted in 1956, with some provisions
dating back to the 19th century. This framework was significantly outdated and ill-suited to contemporary societal
needs. While several important amendments had been introduced since 1956, such as recognizing marital rape
and male rape in the Criminal Justice and Public Order Act 1994, these incremental changes led to a convoluted
legal landscape. This complexity necessitated consulting multiple Acts to fully understand the legal standing on
various issues. In 1999, a comprehensive review process known as the Sexual Offences Review was launched,
which ultimately led to the introduction of the Sexual Offences Bill. This culminated in the enactment of the
Sexual Offences Act 2003, which took effect in May 2004.37”

INVESTIGATION AND TRIAL OF MARITAL RAPE IN ENGLAND

“The English legal system, often regarded as the paradigm of the adversarial tradition, is not a perfect example by
any means; on close examination it is found even in criminal courts to allow deviations from the proper adversarial
structure, more significantly in recent times.”38 However, “the key characteristics which remain are sufficient to
make the Anglo-American criminal trial the most adversarial of criminal proceedings.”39 The pre-trial disclosure
regulations represent a notable shift from traditional adversarial practices. In England, marital rape is classified
as rape under Section 1 of the Sexual Offences Act 2003, leading to an investigative and judicial approach akin
to that for other forms of rape. When authorities receive reports of rape or sexual assault, their initial focus is on
the victim's condition and welfare, ensuring they receive emergency medical care. Subsequently, efforts are made
to identify and apprehend the suspect. However, the decision to arrest is contingent on various factors, including
the specifics of the case and the victim's needs, as well as broader public safety considerations. Each case is
handled by a specially trained officer who is responsible for offering ongoing support and assistance to the victim
throughout the investigation and any ensuing legal proceedings.

THE CROWN PROSECUTION SERVICE (CPS)

Upon the arrest of a suspect, they undergo an interview while evidence is gathered. The Officer in Charge (OIC)
submits all collected evidence to CPS along with a comprehensive account of the incident. A specialized lawyer
within the CPS examines the evidence in detail, collaborating with another lawyer designated as the 'reviewing
lawyer' to determine if there is sufficient evidence to proceed to trial. Subsequently, the CPS informs the OIC of
their decision. Cases involving rape and other serious sexual offenses are evaluated by specialists trained to
address the complexities associated with such crimes. In deciding whether to charge a suspect, the prosecutor is
required to implement a two-step evaluation process.

35
Id at p.770D
36
Ibid
37
Nicole Westmarland, School for Policy Studies Working Paper Series – Number 7 www.bristol.ac.uk/sps Rape
Law Reform in England and Wales
38
McEwan,J., Evidence and the Adversarial Process, (1992, Oxford:Blackwell), at 5
39
Id at 4 .

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1. Evidential Stage: At this phase, the prosecutor evaluates the available evidence to determine whether it
sufficiently supports a realistic chance of securing a conviction. Essentially, after examining the
evidence, the question is whether it is more probable than not that a court would declare the suspect
guilty.

2. Public Interest Test: If the evidential criteria are satisfied, the prosecutor from the CPS then assesses
whether pursuing a prosecution serves the public interest. This evaluation involves several
considerations, including:

o The severity of the offense

o The extent of harm inflicted upon the victim

o The suspect's age and level of maturity at the time the offense was committed

In instances of rape or severe sexual assault, the gravity of the crime typically ensures that, when sufficient
evidence exists, a prosecution will proceed. It is uncommon for cases to be dropped on public interest grounds,
and when this occurs, the prosecutor must articulate compelling reasons for their decision.

If a case fails to meet the evidential threshold, the Crown Prosecution Service (CPS) cannot advance to the next
phase, regardless of the case's severity or sensitivity. Should the prosecutor determine that the two-stage test has
been satisfied, they will inform the police of the appropriate charges to file against the suspect, who will then be
referred to as the defendant.

Each case is unique, and the duration required to reach a decision can vary significantly, potentially spanning
several weeks. While some cases may be straightforward, others may require extensive evidence analysis by the
CPS.

TRIAL OF RAPE CASES

If the CPS recommends proceeding to trial, cases involving rape or sexual assault undergo preliminary hearings
before reaching the trial stage. Victims are not required to attend these initial hearings, which begin in the
magistrates' court. For serious offenses such as rape and aggravated sexual assault, the cases are subsequently
transferred to the Crown Court. At the Crown Court's first hearing, the defendant will be asked to enter a plea, a
process known as arraignment. If the plea is "not guilty," a trial date will be scheduled for a jury to determine the
defendant's guilt. Conversely, if the defendant pleads "guilty," sentencing may occur either at that hearing or at a
later date.
Should the defendant plead "not guilty," the victim must appear in the Crown Court as a witness, officially
recognized as a "witness for the prosecution." Prior to testifying, the victim has the opportunity to review their
written or video statement given to the police. The police and CPS may request "special measures" from the court
to facilitate the victim's testimony. These measures might involve providing evidence from behind a screen or
through a video link from a separate location.
Once a defendant is found guilty or admits to the crime, they become the offender. The judge will then impose a
sentence during a sentencing hearing, which may occur immediately or at a later date. If the jury cannot reach a
consensus on the defendant's guilt, the CPS will consider whether to initiate a retrial, taking the victim's
perspective into account. A new trial would commence with all evidence being presented again and a different
jury. If the CPS opts not to pursue a retrial, the defendant will be acquitted.
According to the Victims’ Code, victims are entitled to submit a Victim Personal Statement during the sentencing
hearing, outlining the crime's impact on their lives. Judges typically factor in this statement when determining the
offender's punishment. Possible sentences include a custodial sentence (imprisonment), a suspended sentence
(where imprisonment is deferred pending compliance with court conditions), a community order (such as
mandated community service or a curfew), a fine, or a discharge.

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CONSENT
In the United Kingdom, both the Heliborn Committee (1976) and the Rape and Criminal Law Revision Committee
(1984) adopted a restrictive stance regarding the definition of consent. They suggested that new legislation should
be enacted to exclude threats that do not involve immediate physical force from being considered in the context
of rape. The Sexual Offences Act of 2003 introduced significant reforms to the definitions of rape and assault by
penetration. However, the complexities surrounding consent remain largely influenced by the precedent set in the
case of D.P.P. v. Morgan.

CRIMINAL JUSTICE SYSTEM IN NETHERLANDS

The Dutch criminal justice system has undergone significant evolution over the years, yet it continues to be rooted
in the inquisitorial tradition. While there are notable differences in the inquisitorial processes among France,
Germany, and the Netherlands, contrasts also exist between the criminal procedures of England and Wales and
those of the United States, each aligned with the adversarial and inquisitorial traditions, respectively. Nevertheless,
fundamental distinctions persist between the criminal proceedings of adversarial and inquisitorial systems.

SUBSTANTIVE LAWS ON MARITAL RAPE IN NETHERLANDS

Section 242 provides as follows:
“Any person who by an act of violence or any other act or by threat of violence or threat of any other
act compels a person to submit to acts comprising or including sexual penetration of the body shall be
guilty of rape and shall be liable to a term of imprisonment not exceeding twelve years or a fine of the
fifth category.”
The Netherlands' rape legislation is designed to be gender-neutral, allowing for the possibility of women facing
charges for rape as well. This law is based on a coercion model that safeguards sexual integrity, specifically when
an individual's freedom to maintain that integrity is compromised. It criminalizes instances of forced sexual
penetration, which may occur through violence, threats of violence, or other coercive acts. According to this legal
framework, coercion is deemed to be present when it is exceedingly difficult for the victim to avoid or resist the
act, thereby demonstrating that the defendant exercised coercive control. Additionally, it applies in situations
where the victim cannot be expected to reasonably evade or resist the coercion.40 The application of coercion in
legal contexts results in varied practical outcomes. Generally, this standard posits that coercion entails four key
elements: (1) the act must oppose the victim’s will; (2) the victim must find the act inescapable; and (3) the
defendant must intend to disregard the victim's non-consent while also acknowledging (4) the unavoidable nature
of the act for the victim. Additionally, the phrase "another act or threat thereof" encompasses various behaviors,
prominently including psychological coercion.
In Article 242 of the Dutch Penal Code (DCP), the definition of rape hinges on the use of threats, violence, or
other coercive acts to compel an individual. This provision does not delineate specific forms of sexual penetration,
thereby encompassing a wide array of sexual acts.
Starting in the 1970s, feminist movements in the Netherlands began to recast sexual violence as a political issue
rather than merely a personal one. This shift culminated in 1991 with a broader legal definition of rape, which
criminalized marital rape and expanded the understanding of coercion. However, Dutch feminist legal scholars
argue that the current judicial interpretation of coercion in rape cases remains overly restrictive.
On March 24, 2024, the Senate of the Netherlands enacted a consent-based definition of rape as part of the
country’s Sexual Offences Act. This legislative change represents a significant update to outdated Dutch laws,
acknowledging that any sexual act without consent constitutes rape. The Senate's decision eliminated the previous
stipulation that rape must involve physical force, threats, or coercion. This amendment took effect on July 1, 2024.
The provision also includes marital rape, although this specific form is not explicitly referenced in the article’s
language. According to Article 161 of the Dutch Code of Penal Procedure (DCPP), individuals can lodge
complaints with law enforcement regardless of their age or when the alleged incident occurred. Furthermore, there

40
HR 12 december 2006, ECLI:NL:HR:2006:AY7767; Lindenberg &Van Dijk 2016; ter Haar, Kesteloo &
Korthals 2019; Schreurs et al. 2019.

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is no statute of limitations for prosecuting rape cases, meaning such crimes are not subject to time constraints for
legal action.

PUNISHMENT
The Criminal Code contains several provisions, particularly sections 242 and 243, that address and punish various
forms of rape, including that which occurs within marriage, as well as domestic violence. Offenders can face
imprisonment for up to 12 years, fines up to €78,000 (approximately $93,600), or both penalties. When the crime
involves violence against a spouse, penalties for different types of abuse may be elevated by one-third.
Additionally, sections 244 and 245 specifically address statutory rape. Section 244 stipulates that if the victim is
under the age of 12, the maximum prison sentence is 12 years. For victims aged 12 to 16, section 245 allows for
a maximum sentence of eight years.

PRE TRIAL
REPORTING OF MARITAL RAPE
In the Netherlands, the police are tasked with handling reports of rape. Typically, larger cities or districts have
specialized sexual assault units within their police stations. However, since policies and practices are set at the
regional level, the presence of these specialized units can vary among police departments. Although the
availability of services is limited, women generally have the option to request a female officer to take their report.

INVESTIGATION OF MARITAL RAPE

After a police report is filed, the responsibility of investigating the crime falls to both law enforcement and the
public prosecutor. They must gather evidence and construct a case for court proceedings. The decision to proceed
with a trial ultimately rests with the public prosecutor, while the court may determine whether additional
investigations are required.

TRIAL OF MARITAL RAPE CASES

In the Netherlands, the framework for criminal proceedings differs significantly from an adversarial system,
functioning instead as an official investigation. Evidence is compiled in written statements found within the case
file, rather than being conveyed through narratives crafted by lawyers in a courtroom setting. Advocates in the
Netherlands are not responsible for narrating the evidence; instead, the case file itself serves as the narrative. The
defense attorney does not need to present a conflicting interpretation of events, nor are they required to provide a
negative or biased representation of the complainant. Consequently, the defense lawyer is not obligated to delve
into the complainant's character or scrutinize her personal life for information that could potentially paint her in a
negative light. While defense attorneys may choose to inquire about a complainant's personal life to challenge her
credibility, they are not mandated to do so.
In addition, prosecutors in the Netherlands possess considerable discretion, allowing them to halt investigations
even if the victim desires them to continue. They can also opt to lower the charges from rape to a less severe
offense.

THE PRE-TRIAL HEARING

In cases of marital rape, the seriousness of the crime often requires the complainant to participate in a pre-trial
hearing. During this session, both the examining magistrate and the defense attorney question the complainant,
and a detailed transcript of the proceedings is maintained as part of the case file. The main role of the examining
magistrate is to gather supplementary information rather than evaluate the reliability of the evidence. The
experiences of victims testifying in pre-trial hearings in the Netherlands are markedly different from those of
complainants in England and Wales, where the judicial process tends to be more confrontational. Importantly,
victims in the Netherlands have the option to withdraw their complaint at any stage of the legal proceedings.
Furthermore, if a victim testifies at the pre-trial stage, they typically are not required to repeat their testimony
during the trial. In contrast to the legal framework in England, Dutch law does not permit victims to initiate private
criminal prosecutions for rape against their assailants.

PRE-TRIAL PROTECTION FOR THE VICTIM

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Bail conditions can be established to safeguard victims against potential threats or intimidation from the defendant.
In addition, the Netherlands offers safe houses to ensure the protection of victims.
In the Netherlands, rape complainants are seldom required to confront their alleged attackers directly. The decision
on whether a defendant should attend the witness examination is left to the discretion of the examining magistrate,
who may choose to exclude the defendant to alleviate the complainant's emotional distress. Unfortunately, there
is no available data on how often such confrontations occur in rape cases.
Pre-trial hearings occur behind closed doors, allowing complainants to avoid the trauma of testifying in a public
forum. They only need to disclose sensitive and potentially humiliating information in front of the examining
magistrate, the defense attorney, and a court clerk who documents the proceedings verbatim.
Various agencies are responsible for keeping victims informed throughout the pre-trial phase, with the police and
prosecutors in the Netherlands specifically tasked with this duty. Victims also have the option to meet with the
prosecutor before the trial begins, ensuring they remain engaged in the process.
Witness examinations at pre-trial hearings differ significantly from traditional cross-examinations, as few
regulations govern questioning. The examining magistrate controls the proceedings and determines the questions
posed to the complainant. Furthermore, the prosecutor is required to offer the victim the chance to meet with them,
but the victim can also initiate this request by contacting the prosecutor directly or asking their lawyer to do so.

THE JURY
In inquisitorial legal systems, the role of jury trials differs significantly from their importance in adversarial
systems. Consequently, certain jurisdictions do not employ lay jurors in rape cases; instead, some may utilize lay
magistrates who serve for a predetermined term rather than for specific trials. For example, in the Netherlands,
cases of marital rape are adjudicated by a panel of three professional judges without the involvement of jurors.

ROLE OF EXAMINING MAGISTRATE IN PRE TRIAL

The functions of the Dutch examining magistrate differ significantly from those of the English trial judge. Unlike
the English judge, who primarily acts as an arbiter, the examining magistrate takes on the role of an active
investigator. Their responsibility is to carry out a comprehensive and unbiased investigation, ensuring that the
case file is a legally valid foundation for trial judgments. In contrast to the English trial judge, who primarily
evaluates the evidence provided by the parties, the examining magistrate is obligated to seek out relevant evidence
and take a leading role in the judicial process. For instance, the examining magistrate serves as the main
interrogator of witnesses. Although impartiality is expected of the examining magistrate, they are not meant to be
passive. The Dutch system places considerable trust in the impartiality of examining magistrates, even given their
proactive investigative responsibilities. Consequently, interventions by an examining magistrate to assist a
vulnerable complainant are generally not viewed as undermining impartiality in the Netherlands. Furthermore,
the role of the defense attorney in the Netherlands differs from that in other jurisdictions; they do not simply
recount a narrative. Rather, they do not present evidence in the same manner, and if an examining magistrate
restricts the defense's questioning, it is not perceived as interfering with the attorney's ability to advocate for their
client.

EVIDENCE
Proof of Lack of Consent
Until recently, the legal definition of rape in the Netherlands, as outlined in Article 242 of the Dutch Criminal
Code, centered primarily on the use of threats, violence, or other coercive actions to compel a person. This
approach emphasized the perpetrator's use of force or intimidation rather than the absence of the victim's consent.
However, on March 24, 2024, the Senate of the Netherlands enacted a significant change by introducing a consent-
based definition of rape into the Sexual Offences Act. This revision acknowledges that any sexual activity
conducted without consent constitutes rape, shifting the focus to the victim's lack of consent. Consequently, it
becomes the prosecutor's responsibility to establish that the victim did not agree to engage in sexual intercourse.
Additionally, the Netherlands employs an objective standard for determining mens rea, meaning that the defendant
must demonstrate a reasonable belief that the victim had consented in order to mount a valid defense.

CONCLUSION

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The emphasis on direct oral testimony is a hallmark of the adversarial legal system, which holds that such evidence
is more compelling than written documentation. This belief stems from the idea that a witness’s demeanor can
reveal insights into their credibility. In adversarial trials, the performance of all parties, complainants, defendants,
witnesses, judges, and lawyers, takes center stage, with the jury observing these interactions. Defense attorneys
often employ various strategies during cross-examinations to destabilize witnesses, understanding that a confused
or flustered complainant may be perceived as less credible.
In contrast, the Dutch legal system favors written evidence over live testimony, downplaying the importance of
assessing witness demeanor. In this inquisitorial framework, witnesses are generally interrogated before trial in a
less public setting, and judges are expected to carefully analyze the evidence presented, often reaching verdicts
without having seen the complainant.
The disparity in cross-examination practices further distinguishes adversarial and inquisitorial systems. In India,
defense lawyers are required to cross-examine victims in every contested case, and multiple cross-examinations
may occur with multiple defendants. Unrepresented defendants can also question victims, although recent
proposals aim to impose restrictions on this practice. However, in inquisitorial systems, while defense lawyers
can question prosecution witnesses, the tone is not as confrontational as in adversarial settings.
Particularly in cases of marital rape, inquisitorial systems like the Netherlands place less emphasis on the sexual
history of victims compared to adversarial systems. This difference may be linked to the absence of juries in
inquisitorial trials, as jurors might be more swayed by such evidence than trained judges.
The Dutch inquisitorial system is noted for its supportive mechanisms for victims of rape and sexual assault,
largely due to the proactive role of the examining magistrate. This magistrate's duty is to conduct thorough,
impartial investigations and ensure the evidence is adequate for judicial consideration, contrasting with the more
passive role of judges in adversarial systems who are limited to the evidence presented by the parties.
In India, the adversarial criminal justice system currently grants husbands immunity from prosecution for raping
their wives. Only two categories of women, those living apart from their husbands and married women under 18,
are afforded some protection. Although legislation like the Domestic Violence Act, 2005, provides civil remedies,
criminal prosecution options remain limited. Even with recent reforms, Indian law has retained the immunity for
husbands outlined in Exception 2 of Section 375 of IPC, despite similar reforms having been implemented in
England.
Recently, in RIT Foundation v. Union of India, court delivered a split verdict on the constitutionality of the marital
rape exception, with one judge supporting the provision and the other deeming it unconstitutional. An appeal has
been filed with the Supreme Court.
Should the legal immunity for husbands in cases of non-consensual sexual intercourse be removed, either through
judicial or legislative means, this study examines whether the existing Indian adversarial system would effectively
handle marital rape cases. Observations from the English criminal justice system indicate that the adversarial
nature can create challenges for victims, exposing them to harsh cross-examination and public trials. The
impartiality of judges and juries often leads to misinterpretation of evidence due to the separation of the judge
from the investigative process. However, the English system does incorporate some inquisitorial features, such as
pre-trial hearings, which are absent in India's adversarial framework.
Inquisitorial systems allow for more intervention by examining magistrates, who can actively manage the
questioning process to protect the complainant, a luxury not available in adversarial systems. This intervention
does not compromise the defense's right to challenge the complainant's integrity, as there is a high level of trust
in the impartiality of examining magistrates.
Despite acknowledging the benefits of the inquisitorial approach, the researcher does not advocate for a complete
overhaul of India's adversarial system. Rather, given the complex nature of marital dynamics and the evidentiary
challenges inherent in rape cases, particularly those involving a spouse, the adversarial system may hinder victim
interests. Therefore, integrating inquisitorial elements, such as the role of examining magistrates and pre-trial
hearings, into the adversarial framework could enhance its effectiveness without entirely dismantling i

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