Divorcing the Marital Rape Exemption from Marriage

- Manas Agrawal

Introductory Remarks

“Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house.”

Marital rape exemption advances the idea of the woman being a legal slave. This is because the immunity of the husband from marital rape proves that the Indian Penal Code (‘IPC’) prioritizes the institution of marriage over the decisional autonomy of the women. This is the backdrop against which this paper is set. The central argument of the paper is that the branch of law and economics proves that the decriminalization of marital rape is inefficient. Here, I am not focusing on one particular interpretation of inefficiency. Instead, I have analysed inefficiency from the viewpoint of different scholars.

Structurally, the paper is divided into five parts. The first part establishes the contemporary relevance of the paper and sets the tone for the rest of the paper. The second part applies Becker’s and Posner’s expositions to prove that the profits from criminalizing marital rape outweigh the loss from decriminalization. The third part applies Coase Theorem to argue for the criminalization of marital rape. The fourth part applies Dan Cohen's model of selective transmission on the defence of marital rape to further substantiate the argument. The fifth part concludes the paper by briefly introducing the factors that should be kept in mind at the stage of punishment.

Establishing the contemporary relevance of the marital rape exemption and setting the tone for the rest of the paper

The issue of marital rape has attained topicality after the Delhi HC pronounced a split verdict on the constitutionality of the marital rape exemption. Justice Shakder held the exemption to be unconstitutional while Justice Hari Shankar upheld its constitutionality. The dichotomy present in the split verdict was that of recognizing the right to decisional autonomy of the wife (Shakder J.) versus preserving the institution of marriage (Shankar J.)

For simplicity, let us imagine that a round table conference is convened to analyze the optimality of the verdict. The conference comprises luminaries such as Gary Becker, Richard Posner, Ronald Coase, Meir Dan-Cohen, and Richard Thaler. Using this social construct of a conference, I will prove that marital rape exemption is inefficient.

The interrelation of Posner’s inefficient market transaction and Becker’s cost-benefit calculus

Let’s start with Becker. According to Becker, an activity should be outlawed if the net damage (D) caused by the activity is positive. In other words, if D = H – G > 0 – (i), (where H is the harms caused and G is the profits gained) the activity warrants being declared unlawful. To this, Bentham would respond that this cost-benefit calculus can also be understood through the utilitarian principle. If the disutility imposed on the victim and the society (pain)exceeds the utility earned by the offender (pleasure), then there is net unhappiness. This cost-benefit matrix has two facets, first is the vantage point from which the harm should be assessed and the second is the nature of the harm that is relevant.

The factor of vantage point can be appreciated through two conflicting conceptualizations about the role of criminal law. The first is the Kantian view of just deserts according to which the harm caused by the offender should be exclusively assessed from the perspective of the victim. Furthermore, according to just deserts, the rationale behind criminal law is retribution. It means that because the victim has suffered harm, the punishment should be proportional to that harm. This line of reasoning is derived from the proportionality principle based on the theory of retribution. The second is Posner’s view of market transactions. He advocates that in a crime, the transaction is not only between the victim and the criminal. This is because criminal law is not merely a private arrangement. Instead, the transaction between the criminal and the victim has adverse spillover effects on third parties.

I argue that the latter view is justified because the sole function of criminal law is not only retribution but also to address the negative externality created by the crime. Here, by negative externality, I mean the external costs borne by the society due to marital rape. Under the standard assumptions of utility maximization, the potential offender does not factor in external costs borne by society. In other words, the potential offender will commit a crime even when the costs to others outweigh the benefits to the offender. Hence, there will be a deadweight loss. To address this, Becker proposes that criminal sanction should be considered Pigouvian taxation. For instance, pollution imposes external costs on society (such as health hazards) that are not borne by the polluter. Hence, a tax is imposed (post facto) on the polluter to ensure that while deciding how much to pollute, (ex-ante) the polluter internalizes the external costs (examples are carbon tax and plastic tax). Similarly, imposition of criminal liability post facto compels the wrongdoer to internalize the external costs imposed on others at the time of engaging in the crime (ex-ante). Hence, the costs borne by society are relevant to the cost-benefit matrix.

The second factor is the nature of harm incurred by the other members of society vis-à-vis the gain accrued to the offender. There are two types of harm, tangible and intangible. This is where Posner comes in again. According to Posner, the primary function of criminal law is to prevent an inefficient bypassing of the market. The assumption that Posner makes is that if transaction costs are negligible then the allocation of goods and resources is efficient. Hence, forced exchanges will disturb the equilibrium by creating disutility and thereby leading to inefficient bypassing of the market. Furthermore, coercive acts lead to an investment in resources by the potential victims and/or the State, which can be termed as social waste. Firstly, Posner takes an example of murder. He says that the whole idea of murder is to inflict disutility in the form of pain on the victim. Furthermore, due to the disutility caused to the victim and the consequent spillover effects on the third parties, there is a net decrease in the wealth of the society. Secondly, the investments of resources are not merely monetary. For instance, not leaving the house at night to mitigate the chances of theft is a non-monetary measure. Therefore, disutility in the form of pain, spillover effects, the net decrease in the wealth of the society, and opportunity costs of being inside the house are all examples of intangible costs. Hence, non-monetary and intangible costs should be given due weightage, especially in crimes of passion (rape).

Now, let us apply Becker’s and Posner’s ideas to marital rape through a cost-benefit calculus.First, I will focus on the gains arising from the marital rape exemption. For the offender, the primary gain is the pleasure derived from sex. Furthermore, according to Groth, there are diverse motivations behind rape.The two relevant here are anger and power. Since, if the husband does not care for the consent of his wife; this means that he is treating her like chattel. Hence, the wife is merely a means for the husband to vent out his anger, which might be caused by stress or some other reason. Consequently, this venting out of anger will increase happiness for the husband. Moreover, marital rape is a means to assert masculinity. The husband derives satisfaction from the subjugation of the wife and establishes his sexual prowess. Additionally, a proponent of Doctrine of Coverture dictates that the wife has given irrevocable consent to the husband at the time of marriage. This doctrine based on Victorian morality states that the identity of the woman merges with the identity of the man after the marriage. Consequently, there is a legitimate expectation of sex, which gets breached if the husband is restricted from having sex.

Second, let us focus on the harms. Firstly, though the paper is based on the law and economics perspective, the constitutional arguments pegged on dignity and privacy are relevant for the ascertainment of harm. As opposed to the husband's right to conjugal sex, the right to privacy and the right to dignity has been bestowed constitutional recognition. Furthermore, bodily autonomy and decisional autonomy have been explicitly recognized as central tenets of privacy. Moreover, decisional autonomy within marriage and sexual autonomy fall within the right to life. As inalienability rules encompasses a situation in which the law forbids the sale altogether, constitutional values will fall under inalienability rules. Hence, marital rape harms the inalienable entitlements of the wife. Secondly, Posner mentions that crimes of passion bypass implicit markets. The explicit markets are conceptualized in terms of goods and services, whereas the implicit markets are conceptualized in terms of intangible values such as fear, love, etc. In marital rape, there is no coercive transfer of wealth; however, there is a coercive transfer of happiness and well-being. Now, in the case of theft, the value of the property is a function of the willingness to pay for that property, and therefore the property is more valuable in the hands of the rightful owner. Similarly, in marital rape, the value of the sexual activity should be a function of consent. Since, the wife and not the husband values consent, the decision to engage in the sexual activity should lie with the wife. In simple words, the husband does not value the rape more than the wife disvalues it. Thirdly, in the status quo situation, there is an added cost to the victim of marital rape when compared to the victim of non-marital rape. This is because of the intangible costs of the sense of betrayal and humiliation experienced by the wife when her husband, as opposed to a stranger harms her.

Apart from these private harms, there are social harms as well. The latter are tightly connected to and flow from the former in the present case Firstly, the marital rape exemption can lead to great mental agony for the wife. This might lead to total animosity in the marriage, which will be a huge cost to the welfare of the children. Here, the private harm is the mental agony caused to the victim. Furthermore, the private harm of mental agony leads to the larger social harm of decreasing the welfare of the children. Secondly, resistance to rape by the wife can lead to cruelty towards her, and this can also lead to suicide. Here, both cruelty and the subsequent suicide are private harms. However, since these are undesirable consequences, the state will have to invest resources in curbing actions (in this case, marital rape) that leads to these consequences. This cost will fall within the bracket of social harm. Hence, social costs are imposed on the state to invest resources in preventing cruelty and suicide.

Now, the last step is to solve the abovementioned equation (i). Since, the harm caused is unconstitutional, bypasses market transactions, and is like inalienable entitlements, it outweighs any gain based on Doctrine of Coverture

Hence, (Private Harms + Social Harms) > (Gains to the Husband) and consequently D >0 in equation (i) and consequently marital rape should be criminalized.

The Coase theorem and its focus on the entitlement of rights based on economic efficiency

Coase is a staunch critic of the Pigouvian tradition. He says that “It is strange that a doctrine as faulty as that developed by Pigou should have been so influential...” Hence, he does not consider the role of criminal law as that of addressing negative externalities. However, I will show that Coase will reach the same conclusion as Becker and Posner.

According to Coase, the initial allocation of property rights has no bearing on the final result because both parties will negotiate and come to the most efficient result. Let us apply this to the current scenario of the marital rape exemption. Assume that there are two conflicting rights, the conjugal right to sexual intercourse vested with the husband, and the right to bodily and decisional autonomy vested with women. In marital rape, the initial allocation of the right lies with the husband. This is because the law entitles the husband to satisfy his lust with or without the consent of his wife. Now, firstly if the consent of the woman is not taken before sex, then there will be huge private and social costs (Case 1). Secondly, if the wife does not consent, then the husband will not be able to satisfy his sexual desires (Case 2). As (Harm in Case 1) > (Harm in Case 2)—(ii), the efficient solution is bargaining between the husband and wife in which the husband can satisfy his sexual desires only if the wife consents.

This is an ideal yet impractical observation because the core assumption of Coase is that there is zero transaction cost and that both parties have equal bargaining power. In marital rape, the transaction costs are not negligible and the patriarchal substratum of the society places creates inequality of bargaining power between the husband and the wife. However, Coase recognizes that the assumption of zero transaction costs is unrealistic. Thus, he states that the aim of the legal system is to establish a pattern of rights in accordance with economic efficiency. Thus, a legal intervention based on economic efficiency is required in cases of marital rape. As equation (ii) proves that the lesser harm is in Case 2, Coase would also conclude that marital rape warrants criminalization.

The marital rape exemption violates Cohen’s concept of exceptions

Let us take a closer look at the text of the provision. “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” Furthermore, the chapeau of the provision mentions “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse...” Hence, the chapeau read with Exception 2 proves that sexual intercourse is the sine non qua for rape. Therefore, the source for the marital rape exemption is the phrase hereinafter excepted. Now, I will apply Dan-Cohen’s model to the exception.

Dan-Cohen characterizes statutory provisions as either conduct rules or decision rules. He states, “Imagine a universe consisting of two groups of people - the general public and officials. The general public engages in various kinds of conduct, while officials make decisions concerning members of the general public. Imagine further that each of the two groups occupies a different, acoustically sealed chamber. This condition, he calls “acoustic separation” (emphasis supplied).

The crux of Dan-Cohen’s exposition is that the law should be conceived as a set of normative messages which are meant to be heard by either the general public or the decision maker. Furthermore, in an acoustically sealed chamber, the normative message can only be heard by the person to whom the message was directed. The purpose of acoustic separation is to ensure that decision rules do not affect the conduct and vice-versa. However, he later acknowledges that in the real world, decision rules do affect conduct due to behavioural side effects. Hence, he proposes the solution of selective transmission, which is a situation of partial acoustic separation. He says that since society is differentiated into the public and the official sphere ipso facto there is a situation of partial acoustic separation. This is because certain normative messages of law are more likely to be registered with one of the groups.

One such type of message is the defence of necessity and duress. If the actor had absolute knowledge about the manner and circumstances in which the court will decide duress or necessity, then he would intentionally shape his conduct following the knowledge he has. Hence, some sort of vagueness is required so that the public cannot intentionally evade liability. Thus, Dan-Cohen concludes that duress and necessity should be framed like decision rules.

This holds equally true for the marital rape exemption. Prima facie, it seems that marital rape exemption is both conduct and a decision rule. Hence, the decision rule of acquitting the husband will have the behavioural side effect of the husband not asking for consent. Furthermore, the conduct rule of marital rape exemption will have the decisional side effect of acquitting the husband. Hence, the purpose of distinguishing conduct and decision collapses. Furthermore, since there is blanket immunity from marital rape and no vagueness is present, the husband will intentionally continue to disregard the aspect of the consent. Thus, the solution is to scrap the exemption and assess the conduct of rape based on consent. The IPC defines consent as “an unequivocal voluntary agreement when the woman by words... communicates her willingness to participate in the specific sexual act.” The usage of the word unequivocal shows that consent is a phase-sortal concept, which is either present or absent. Furthermore, the presence of unequivocal shows that the subjective intent of the man is irrelevant. Hence, the consent has to be determined from the vantage point of the victim. Therefore, consent is more likely to be like decision rules. In this situation, since the discretion lies with the decision-maker, the accused will have less scope to intentionally shape his conduct and evade liability.

Concluding with some recommendations on the punishment of marital rape

Punishment of marital rape should have two important aspects, deterrence for the husband and sustainability for the wife.

The first aspect can be understood through Becker’s deterrence model. The mathematical depiction of the model is O = O (p, f, u) – (iii), which means the commitment of an offence is a function of the probability of conviction (p), the punishment (f), and other influences such as education, etc (u). In marital rape, the probability of conviction is less than that in rapes committed by strangers. Hence, to remedy the situation there are two proposals. First, the state should invest in resources, for example, technological resources, to increase the probability of conviction. However, this would increase the social cost of the offence. Here, the natures of social costs are conceptualized in monetary terms. This is because the state would have to implement measures which ensure that evidence can be gathered for the acts occurring in the private realm. Hence, the second measure is to increase the punishment for marital rape based on the multiplier principle. The multiplier principle would say that if p is 20% (1 in 5), then the actual punishment should be set at 5 times the total harm caused by the offence.

I admit that both of these measures have limitations[[1]]; however, my goal is not to cull out a perfect remedy, but merely to introduce the factors based on which optimal deterrence can be imposed.

The second aspect is that of sustainability. This can be understood in two ways. First, in many cases, the husband is the sole earner of the family. Hence, a non-monetary sanction is not sufficient for the livelihood of the wife, and this disincentivizes the wife to report the crime. Second, behavioural economists claim that “bounded willpower suggests that they will often behave in ways at odds with conventional economic analysis, due to problems of self-control.” In the present context, bounded willpower means that the husband will focus on the immediate benefits of satisfying his lust and will heavily discount the costs of imprisonment that are spread over some time.

Hence, compensation to the victim should be made mandatory and the quantum of the compensation should have a direct correlation to the harm caused to the victim. An upfront compensation will also mitigate the problem of bounded willpower.

Lastly, I have not ventured into the other aspects of punishment such as marginal deterrence [[2]] or perfect compensation. This is because, without an empirical analysis, a comprehensive calculation of punishment will be a Nirvana fallacy Nirvana fallacy means the practice of comparing actual things with hypothetically idealized solutions. Hence, any model of compensation will be compared with an imagined idea of perfect compensation. Furthermore, I intentionally followed the methodology of using a round table conference. This is because it allowed me to apply the epistemology of law and economics to the marital rape exemption as opposed to merely focusing on the thoughts of one scholar. Furthermore, through shifting lenses of different luminaries I submit that ‘All Roads lead to Rome’, the roads here being different arguments of different scholars and Rome being the criminalization of marital rape.

[1] One limitation is highlighted in Preeti Pratishurti Dash, ‘Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi’ (2020) 4(2) Indian Law Review 244, 248; She states that sometimes the judges consider the punishment unduly harsh and acquit the accused; Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press 2012).

[2] Stigler, ‘The Optimum Enforcement of Laws’ (1970) 78 Journal of Political Economy 526; Marginal deterrence means that the punishment should have a nexus with the crime. Only in this situation, the criminal will be incentivized to commit a less serious crime than a more serious one. For instance, if the offender is given the death penalty for both marital rape and murder, then there is no disincentive to murder, ceteris paribus.