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Rape, Incest and Other Contradictions


The recent Delhi rape incident has elevated national attention about nonconsensual sex and violence.  There is no doubt that most reasonable people disapprove sexual violence against women. Yet, the picture about what constitutes rape is not clear in India. The subject is further complicated without any legal guidance on incest.

For the starter, let me briefly describe the laws in India. Marriage for girls is permitted after 18 (except Muslim girls who may marry at 15) and 21 for boys.  But many underage marriages take place, and the government does not intervene. Sex with a “minor wife” below the age of 15 is punishable. But no one bothers if a man marries a girl below 15 as long as the couple does not disclose that they had sex with each other.

There is no law in India concerning incest, often described as having sex between a parent and a child, or between siblings. If one is to believe ancient Indian writings, incest was not very uncommon. Today in India, sex with a close relative girl above the age of 15 does not get any legal attention as long as there is no complaint. Sex is considered consensual when there is no complaint. No wonder hundreds of thousands of young girls face sexual abuse at home every day in India, and nothing happens to their male predators.

Many children in our school, Shanti Bhavan, face incidents of sexual abuse when they are home on vacation. Incidents of molestations have occurred from the very young age of five or even less. These abuses are committed by stepfathers, uncles, cousins, and young men whom the parents approve of for marriage for their daughters when they are ready. If the opportunity arises, these incidents lead to sexual intercourse with or without the explicit consent of parents.

Marriages to uncles and cousins are a common practice in many societies, especially when the girl’s parents are unable to pay dowry. Even marriages between brothers and sisters occur in some instances, especially when they are half-brothers and half-sisters, i.e., of the same mother but of different fathers or vice-versa.  There is no law in India that prohibits sexual relationships between close family members within marriage or outside of it as long as it is not with one below the age of 15 and is consensual. Some people argue that sexual relationship between any “adults” is fine as long as it is consensual.

Official complaints are rarely made when incest or sexual relationships occur between close family members.  If the girl refuses consent, she faces punishment and even violence until she gives in. Members of the family rarely complain to outsiders about each other.

When there is no law on incest and child marriage is not prohibited as long as no one complains, sex between innocent girls and adults will continue unabated. Can you call these incidents rape?

In matters like these, laws must be abundantly clear and consistent. The consequence of their violations must be certain and swift. A just and humane nation cannot practice hypocrisy of indifference.

Comments

Anonymous said…
I believe that people forced into marriage is a violation of human rights, however, imposing prison sentences on people involved in consensual sex should violation of human rights as well.

There is a highly-publicized case in Spain of a brother-sister couple happily involved in a spousal relationship for over thirty years. They had two healthy children together as well. In Spain sex between two people over the age of consent is not unlawful.
Anonymous said…
Anything consensual between two people over a certain age should not be criminally punished.
In your opinion, does that include mother-son (as described in some ancient Indian writings) and father-daughter? Does a young daughter know enough NOT to give consent to an imposing father?
Anonymous said…
As long as there is no fraud involved, and no one is being coherence, no criminal penalty should apply in a government that separates religion and state. It's similar to punishing homosexual acts between consenting adults.
Anonymous said…
Sorry... I meant "no one is being coerced"
Does a minor recognize coercion by her father, especially when he has a strong personality and control over her? Is the term incest inappropriate, and sex between those who do not complain just fine?
Anonymous said…
In many jurisdictions globally, it is a violation of several laws when sex involving persons under consensual age are involved such as statutory rape etc. What goes on in private between consenting adults shouldn't be the government's business; it should be a civil matter.

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