Name of the Student: Apoorva Kudari

Registration Number: 21DBALB005

Programme: B.A., L.L.B (hons)

Semester: III Sem

Course Name: Law and Economics

Course Code: 5BAL322

Course Component: Research Paper

Date of Submission: 09/11/2022

Submitted to: Prof. Aardhra Vasudevan

 ECONOMIC ANALYSIS ON MARITAL RAPE AND ITS PUNISHMENT

ABSTRACT
The concept of marital rape has been largely neglected by Indian law, which has placed a strong
focus on rape, sexual assault, and sexual abuse. India's government believes that the institution of
marriage would be severely damaged by the widespread practice of marital rape in the
country regardless of whether or not it is actually prevalent in the country. An approach that takes
into account how much money and resources are wasted and how sanctions can lessen that waste
should be employed. The idea of "perfect compensation" has already been discussed. Abuse of
women is right up there with rape as the most heinous crime against a woman. Other crimes do
not have transaction, social, or psychological costs. A rape victim must deal with both the physical
and psychological consequences of their encounter. Section 375 defines rape and Section 376
punishes rape, respectively. Life in prison is the maximum sentence that can be given. Criminals
can't get away with their crimes if their predicted penalty isn't greater than their gain. Therefore, the
punishment should be more severe than the gain received by the criminal. Other than that, they're
quite hefty penalties. The criminal should receive more compensation than he or she earned. In
order to document the greater health-care costs associated with strengthening post-rape
treatment an economic study is needed. Society suffers when a crime is committed as treatment
costs are required for those injured and the families of the victims lose the income the victim would
have earned had he not been killed. When it comes to the economy all crimes have an impact.

KEYWORDS: Marital Rape, Economic Analysis, Punishments, Abuse, Economy

RESEARCH QUESTIONS
1) How can marital rape be analyzed economically?
2) What are the punishments for marital rape?

RESEARCH OBJECTIVE
1. To study economic analysis of marital rape
2. To understand how punishments and economics go hand in hand
3. To focus the essential punishments available for marital rape
RESEARCH METHODOLOGY
In this research I have inclined towards the Doctrinal method whereby my paper will be
substantiated with articles and previous findings of various scholars for a better outcome.

HYPOTHESIS
A remedy for marital rape consisting of both imprisonment of the offender and financial
compensation for his wife seems reasonable.

INTRODUCTION
When it comes to the situations in India the concept of marital rape has always been in the
spotlight. India's laws have focused heavily on rape, sexual assault, and sexual abuse but have
largely ignored the concept of marital rape. The act of starting sexual intercourse with one's spouse
without the other spouse's consent is sometimes referred to as marital rape. Marital rape has been
criminalized in many forward-thinking countries, and it now has the same legal penalties and
statutory status as rape against anybody else. Marital rape is not just the most pressing issue in the
realm of women's rights right now but it also breaches a number of fundamental prohibitions.1
In the mid-twentieth century the concept of marital rape gained international attention and
momentum. International organisations began to work on the concept of marital rape in order to
bring light to the dark hidden violence against married women. Although international laws have
declared marital rape null and unlawful certain countries continue to practice it as an integral
element of the institution of marriage.2 Economics is the study of the problem of choice in
situations when resources are limited and society's goal is to maximise benefit welfare. Because
an economic analysis is utilized to identify the most effective punishment there is an increasing
trend of economic analysis of law and legal problems. A crime is not just a wrong done to the
victim but it also has financial consequences. When a crime is committed society loses some
resources if physical hurt is caused treatment costs are incurred and when man is slain his family
loses his earnings. 3As a result, all crimes have an impact on society's economics at some point.

1
Legal Service India, Mohomadmohsin, https://www.legalserviceindia.com/legal/article-5469-marital-rape-
situational-analysis.html
2
Coote, Robert r & Thomas Ulen, Law and Economics, Addison-Wesley Longman, Inc, 1999
3
Medem, Steven G. & Richard O.Zerbe, Jr, The Coase Theorem, encyclo.findlaw.com/0730book.pdf
Why an Economic Analysis?
Why do we need to do an economic analysis of any law is an issue that arises? A law is one of the
strictest social sciences, with everything written in black and white. Some of the pillars in the
subject of economic analysis of law and legal problems include economists such as Posner, Robert
Cooter, Thomas Ulen, Steven Shavell, G.S. Becker, and others. The economic approach to
criminal law is founded on the idea that examining and establishing laws and institutions is
beneficial to economic efficiency. There is no way to make a change that benefits someone without
injuring someone else, according to economic efficiency. A change is efficient if those who benefit
from it compensate those who lose, resulting in no one being worse off as a result of it. This is
known as the "Pareto Efficiency." A change is efficient under this less restricted definition if
an individual may theoretically compensate others who lose while being better off, but there is no
condition put on the beneficiary to actually hand over compensation. In two ways, understanding
efficiency is critical to the economic analysis of criminal law:
➢ To evaluate the efficiency of current institutions.
➢ Propose more efficient institutional arrangements on the normative side. 4

PUNISHMENT AND ECONOMICS

The aim of criminal law theory is to resolve two fundamental questions:
1) What kind of offences should be punished?
2) To what extent is this true?
Acts that meet the essentials of "crime," i.e., actus reus + mens rea, should be punished. Any
conduct accompanied by a bad intention and a motive that causes harm to an individual or society
as a whole is a crime that should be punished. Formulating a measure of the societal loss caused
by transgressions and identifying resource expenditures and punishments that minimize loss
should be the method.5 The concept of "perfect compensation" has already been considered.
There is now "perfect disgorgement," which is a sum of money that makes the injurer indifferent
between an injury with disgorgement and an injury with no disgorgement. The main philosophy
of punishment is reasonableness, which states that the penalty should be proportional to the harm

4
Nuno Garoupa, An Economic Analysis of Criminal Law,
www.estig.ipbeja.pt/~ac_direito/Garoupa_criminalaw01.pdf
5
NBER, Essays in the Economics of Crime and Punishment, Gary S. Becker and William M. Landes, eds
http://www.nber.org/books/beck74-1, 1974
or injury committed. The actual penalty should be more than the number of "perfect
disgorgement."

AN ECONOMIC ANALYSIS OF RAPE

Brutal crime against women goes right up there with rape as the most terrible. Transaction cost,
social cost, and psychological cost are not included in any other crime. Those who have been
raped face not only the physical but also the psychological effects of their ordeal. Rape victims are
increasingly receiving financial recompense. A Bangladeshi woman was raped by a group of
railway workers. The claim against the Railway Administration in Chairman and Railway Board
under Art 226 were successful. Let's say that the coercive nature of the rape appeals to the rapist.
This means that rape is not a pure forcible transfer and should not be penalized criminally because
there is no market equivalent.
a) The protection of marriage markets and women's property rights in their bodies necessitates
preventing rape. However, the argument is a weak one.
b) Allowing the practise of rape would result in significant costs for circumventing these
safeguards.
As a result, the money spent would be primarily counterproductive and socially wasteful. The fact
that the rapist is unable to locate an acceptable substitute does not suggest that he values the rape
more than the victim disvalues it, according to the definition of value used by economists.6
Furthermore, an important part of economic research is attempting to design an efficient law
structure under which rational people can operate.
Is there a better way to describe efficient results? In criminal law an efficient outcome would
indicate that both parties are induced to act in a manner that minimizes the society costs. The legal
system should be such that women feel so safe that they don't have to spend extra money on things
like private cabs while travelling, such as in the case of rape. They should be able to travel at a
lower cost and in a more efficient manner. First and foremost, the legislation should be so strong
that rapists are afraid to rape. Prostitution might also be legalized as a far-reaching shift in the legal
system7. To make this reasoning work, it is assumed that all crimes have an alternative such as

6
Donohue III, John J & Ian Ayres, Book Review: Posner‘s Symphony No.3 : Thinking About The Unthinkable,
www.jstor.org/stable/1228766
7
AIR 2000 SC 988: ,2000 2 SCC 465
shoplifting that is less expensive than the crime. This means that legalizing prostitution may be the
best way to combat the rape epidemic. The issue of marital rape and poor people who can't even
make ends meet to expect that they'll pay prostitutes is too much to ask for. Consequences of this
policy include the abuse of prostitutes who always have the right to refuse any requests made of
them. Violent punishment is needed to keep criminals from committing rape and encourage them
to act in a way that produces effective results.

What is the reason for rape?

This question can be answered in a variety of ways. We'll look into it from an economic
standpoint. A person would not commit a crime if the benefit or value of the crime outweighed
the cost which he pays in punishment. To rape is unrestricted in India because of the country's
anarchy. However due to a startlingly low rate of conviction in rape cases the value of the pleasure
obtained from rape is significantly more than whatever costs the rapist may face. Consequently,
the only way to reduce rapes is to implement a penalty that is effective.8

PUNISHMENT FOR MARITAL RAPE

Protection of Women from Domestic Violence Act of 2005 Section 3 (d) (iii), defines sexual
abuse as: sexual assault includes any act of a sexual nature that abuses humiliates or degrades the
woman. In India, marital rape receives insignificant acknowledgment under this definition. Even
though it's a civil law, the Protecting Women from Domestic Violence Act of 2005 doesn't have
the same force as a criminal law.9
• Criminal Intent - Intent to kill is referred to as 'mens rea' in the law. Forced sexual
interactions without the wife's consent and the use of physical strength are obvious red flags
in a case of marital rape. Having a guilty conscience is a requirement for an act to be classified
as a criminal wrong, and this shows that the offender has one.10
• Public Harm - Damages are not limited to the victim alone in criminal law as they are in
tort, contract, or property law Wives who have been subjected to sexual assault are subjected
to a wide range of physical and psychological trauma which has a negative impact on society.

8
Friedman, David.D, Law‘s Order- What Economics Has To With Law and Why it Matters, Princeton University
Press, Princeton & Oxford 2000
9
The Protection of Women from Domestic Violence Act, 3(d)(iii) (2005)
10
LII, https://www.law.cornell.edu/wex/intent, updated on June 2020
 As a result the immense harm done only serves to bolster the case for criminalizing marital
rape.11
• Standard of proof - The prosecution must also meet a high standard of proof in criminal
cases, which is an important feature of criminal law. In common law countries, such as India
the prosecution must prove the case beyond a reasonable doubt in order to be convicted. This
has to do with the numerous factual issues that come up while attempting to establish a case
of marital rape.12 However the difficulty of proving a horrible crime like marital rape should
not be an excuse in and of itself.
• Punishments - Compensation in civil law differs from criminal law punishment.
Compensation under civil law aims to put the aggrieved party back in his or her original
position by charging the wrongdoer. Cost internalisation is made easier as a result. Because
this isn't achievable for criminal offences the goal of criminal punishment is to worsen the
situation of the person who caused the harm rather than helping the victim. Criminal law also
seeks to deter repeat criminals by harsh punishment.
When an offence has elements of both civil and criminal wrongs, it seems to reason that a solution
that includes both financial compensation and prison time would be most effective. The following
are the reasons why this is the case:
• For punishment under criminal law - Deterrence is one of the primary purposes of the
criminal justice system. There is a societal stigma associated to the perpetrator if he or she is
convicted. As a result, the prison sentence is also a good way to punish the perpetrator's mental
commitment.
• For punishment under civil law - Paying her exactly what she deserves helps her recover
from her injuries. The wife's trust and faith in her husband are shaken when physical force is
used to compel sexual intercourse. The wife's rehabilitation and return to her old work are two
additional benefits of compensation. Additionally, compensation aids in the wife's
internalization of the expenditures she bears. A remedy for marital rape consisting of both
incarceration of the offender and financial recompense for his wife seems reasonable.13

11
NCBI, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1112897/
12
ICLR,https://www.iclr.co.uk/knowledge/glossary/standard-and-burden-of-
proof/#:~:text=The%20standard%20of%20proof%20is,prove%20its%20case%20to%20succeed.&text=In%20crimi
nal%20cases%2C%20the%20burden,defendant%20%E2%80%9Cbeyond%20reasonable%20doubt%E2%80%9D
13
Medem, Steven G. & Richard O.Zerbe, Jr, The Coase Theorem, encyclo.findlaw.com/0730book.pdf
A remedy for marital rape consisting of both imprisonment of the offender and financial
compensation for his wife seems reasonable.

Here are a few examples of how this might be explained:

In the same way that the fundamental principle of economics holds that "every man is rational," a
criminal or rapist in a marriage is rational. If the responses to these questions are favorable rational
criminals will go on to commit further acts of violence. As long as one is not bound by guilt or an
internalised sense of right and wrong one can be said to be rational and amoral in this sense. Crimes
and punishments can be rated according to severity.
✓ The horizontal X-axis represents the seriousness of the offence while the vertical Y-axis
represents the seriousness of the punishment.
✓ The more serious the offence the harsher the punishment. There is no punishment or
prosecution for the crime of marital rape because the only relief the woman can receive is
money this encourages the husband to commit rape again.
✓ The curved line represents the real punishment and depicts the harshness of the
punishment as a function of the crime's seriousness.
✓ The punishment curve slopes upwards, indicating that the severity of the punishment
increases as the severity of the crime increases. Punishment causes complete disgorgement
when the harshness of the punishment is commensurate to the seriousness of the offence.14

14
Robert cooter & Thomas ullen, Law & Economics, 2007
Now we'll look at a case of marital rape. In this scenario, the existing regulations provide for
monetary compensation as a remedy for every act of marital rape. And, because every case under
the Domestic Violence Act of 2005 is exempt from divorce or separation, the money donated by
the accused to the victim completes a circle and returns to the accused. As a result, the remedy is
only equivalent to, if not less than, perfect disgorgement, and so cannot prevent the husband from
repeating the offence.
When considering whether or not to commit a crime, the likelihood of being detected is also quite
crucial. Every criminal estimate the expected value of the crime, which is the profit minus the
punishment multiplied by the chance of being caught. Because acquiring evidence for an incident
of marital rape is exceptionally difficult, the predicted punishment curve is frequently lower than
the actual punishment. The offender will be stopped from committing any act as long as the
predicted punishment curve is greater but once it falls below, the offender will continue to commit
the offence. When the predicted punishment falls short of perfect disgorgement, the offender is
enticed to continue committing the crime. When the range goes below, the offender wins more
than he expects to lose therefore crime pays, and an amoral person would commit the questionable
conduct in these conditions.15

15 Richard A Posner, Economics Analysis Of Law, 2014

TOWARS AN EFFICIENT PUNISHMENT
LAWS IN INDIA:
Rape is punishable in India under Section 375 of the Indian Penal Code. Rape is defined in Section
375 and rape is punished in Section 376. The maximum penalty that can be imposed is life in jail.
The minimum sentence is set at seven years however it can be reduced at the Court's discretion.
As a result the punishment's overall outcome is ineffective. Punishment has a negligible
deterrence impact. There should be no exceptions to the bare minimum. The crime of rape
requires a higher stigma to be attached to it, not to the victim, but to the perpetrator. In India, it is
the other way around. Rape suspects should not be accepted back into society. He should also face
financial consequences. Following his acquittal, his sources of income should dwindle. All of this
unfortunately occurs with the victim in India. Economist John Lott conducted two empirical
investigations, one on white collar criminals and the other on firms accused of defrauding their
clients. He came to the conclusion that stigma is a serious penalty. The rapist's loss should be
greater than the maximum fine that might be imposed if the charges are proven to be accurate.

OPTIMAL PUNISHMENT
The expected punishment must be at least equal to the criminal's gain. As a result, the punishment
should be greater than the benefit to the guilty. So how do we apply this idea to incidents of rape?
The concept of compensation enters the picture at this point. In terms of the other penalties they
are pretty severe. Compensation should be greater than the criminal's gain. It must be both
exemplary and obligatory. A conviction should result in a sentence as well as restitution. The
concept of compensation should encompass both aspects: compensation for the sufferer as well as
compensation for the state. It raises the expense of punishment. The difference between the cost
of the penalty imposed on the offender and the value it delivers to others is known as the
punishment cost. The cost of punishment should be zero. In rape situations, however,
compensation can never fully compensate the victim. However, if the State is compensated as well
the State will most likely be able to work more efficiently. It's not that the government doesn't
want to prevent rapes it just isn't willing to pay the price. If the victim is additionally rewarded,
the state will endeavour to avoid the rape, such as by illuminating dark streets sending extra police
on dark routes and so on. The purpose of the economic analysis is to document the higher health-
care expenses associated with enhancing post-rape care. The transaction costs of rape are low
because the government appears to be unconcerned about maintaining and defending citizens'
rights. Furthermore, compensation alone will not be enough to make up for the harm done to the
victim, thus it should be given in combination with the penalty meted out to the criminal. In the
instance of rape, there is no such thing as perfect restitution. Furthermore, the State does not appear
to be following the Case theorem because no economically efficient pattern of rights appears to be
evolving in the case of rape. Because a rapist cannot reverse the harm done to the victim the Pareto
Optimal rule does not appear to apply.

Why marital rape is not criminalized in India?

To understand why marital rape has not been criminalised in India, we must look at for and against
arguments.
• Criminalizing marital rape would be an attack on the holy sacrament of marriage.
• Every argument a woman has with her husband can be used as an excuse to utilise the
marital rape as a defence.
• Making rape in marriage a crime for women is sexist.
• As long as it's between a husband and wife, rape in the bedroom is acceptable.
• There is no place for the courts in a private matter.
In India, a woman can be protected from marital rape under multiple articles of the Indian Penal
Code. An IPC violation occurs if an idea like Marital Rape isn't taken seriously in marriage. A
woman's confidence and faith in her husband's ability to protect her are destroyed when he compels
her into a sexual contact with another man, a man she knows and trusts. According to what one
can observe the country of England has made great strides in dealing with the issue of sexual
assault in the context of marriage. Several states in the United States have officially outlawed the
practise of raping a married woman.16

16
Legal Service India, Mohomadmohsin, https://www.legalserviceindia.com/legal/article-5469-marital-rape-
situational-analysis.html
CONCLUSION
Though it may sound like a good idea, the economic study of law has thus far had little practical
use. It's best for determining the penalty. Because of the tremendous costs associated with rape, it
is impossible for victims to be compensated or to be reimbursed by the state. However, since the
punishment was free, some form of reparation is warranted. Economic theory of criminal law is
unquestionably a significant body of work that has shaped our understanding of crime and law. As
a result, the state has been given the responsibility of ensuring that women are protected. Rape is
a violation of this right, and thus a criminal offence.