16 Rape Law I

Radhika Gupta

epgp books

 

Introduction:

This chapter will explore the concept and practice of rape as a criminal act of sexual violence against women. Rape is an act where one person uses physical force or compels the other to submit to sexual acts without the latter’s free consent. Rape is internationally recognized as a crime against the basic fundamental human rights of equality, personal liberty, dignity, privacy and bodily sovereignty of a person. This module will give an overview of anti-rape laws in India up to and including the criminal law amendments in 1983. In accordance with Indian laws, this module understands the offence of rape as one where the survivor is female, and the perpetrator is male.

The chapter will first introduce the concept of rape as a human rights violation. It will then examine some theories that attempt to explain the wide occurrence of rape before tracing the evolution of rape laws in India until 1983. The following module will examine how the law has changed post 2012 and will briefly introduce some contentious issues that plague legislative, executive, and judicial decisions regarding rape, such as non-recognition of marital rape, the two-finger test controversy, and arguments on mandating the death penalty for rape.

Learning Outcomes:

At the end of the module, students should be able to:

  • Locate rape as an act of sexual violence against women within the broader context of human rights violations.
  • Acquire an understanding of various theories of rape and be able to critically analyze their validity.
  • Acquire knowledge of existing criminal law provisions governing rape in India up to and including the Criminal Law (Amendment) Act, 1983

PART I: Rape as a Human Rights Violation

Human rights are rights inherent to all individuals by virtue of being human. They command a status of inalienability, indivisibility, interdependence and non-discrimination. The Universal Declaration of Human Rights states that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Rape as a criminal offence challenges the notion of liberty of all individuals and the right to life with dignity. It challenges the idea of gender equality as the crime is overwhelmingly perpetrated by men against women. Rape not only hurts women through physical assault but also has larger social ramifications in the form of objectification of women and the establishment and perpetuation of male power and domination within society.

International human rights law has recognized the gravity of rape as an act of sexual violence and imposed several obligations upon states to curb and prevent the occurrence of rape within their territorial boundaries. The Convention on the Elimination of Violence Against Women (CEDAW) which establishes legal obligations upon all states party defines discrimination against women as the “distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality between men and women, of human rights or fundamental freedoms in the political, economic, social, cultural, civil or any other field.” The very act of raping a woman impairs her enjoyment of personal liberties and fundamental freedoms, infringes upon her bodily integrity and hinders her from enjoying and controlling her sexual autonomy.

The Declaration on the Elimination of Violence Against Women (DEVAW), which aims to recognise and reinforce the pre-existing legal obligations of individual states in eliminating violence of women defines violence against women as an “act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” It further asserts that states have an obligation to “exercise due diligence to prevent, investigate, and, in accordance with national legislation, punish acts of violence against women, whether… perpetrated by the State or by private persons.” Here, violence against women encompasses all acts that perpetrate physical or verbal abuse, including rape as an act of sexual violence that results in sexual, physical and psychological trauma to women. As DEVAW is a declaration, it does not create a legal obligation for states. It does, however, offer an authoritative interpretation of both what violence against women should be understood to encompass and how to encompass pre-existing legal obligations, such as the obligation to eliminate discrimination against and inequality between men and women as found in CEDAW.

PART II: Theories of Rape

While societal views on rape are not homogenous in nature, certain voices in society have attempted to theorize the commission of the offence and explain the wide prevalence of this crime in today’s world. This section introduces some of these theories.

Male Dominance Theory

Male dominance theory traces the historical trajectory of viewing women as men’s property, whereby committing rape was not a crime against a woman’s bodily integrity but an act against a man’s own property. Such a historical and cultural framework is used to construct men as those entitled to exclsuive sexual access to their property. Sexual assault, when viewed from this perspective, is not only reflective of societal attitudes towards male dominance but also further entrenches notions of female subjugation to ensure conformity to conventional gender roles.

‘Woman at Fault’ Theory

The ‘Woman at Fault’ theory follows the path of victim blaming, either in the form of women verbally provoking men to commit rape or physically enticing men through clothes or conduct. Recent statements by well-known politicians reflect the implicit adoption of this fault theory by according contributory fault status to women wearing short skirts or going outside at night. The ex-Chief Minister of Delhi, Sheila Dikshit said in 2008 that “One should not be adventurous being a woman.” In 2014 an elected member of the legislative assembly in Rajasthan wrote a letter to a bureaucrat in the state government that girls should be banned from wearing skirts to school to keep them safe. This theory has received widespread criticism for transferring the blame from the male perpetrator man to the female survivor.

Power/Dominance Theory

Power/dominance theory views rape as only one symptom of the larger problem of male dominance in society. Some feminist theorists view rape as driven by motivations of violence rather than the assertion of male sexuality, and purport that rape is inspired by political motivations to dominate and degrade. Such theorists also deny that rape has an individualistic nature, but claim that it is “nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.”

Some feminist scholars also view pornography, involving the objectification of women and male dominance in the sexual relationship, as one of the causes for rape. Not only does over sexualizing women degrade their human dignity and dehumanize them to the extent that reaffirms the treatment of women as mere objects, but also the physical assaults represented in some pornographic films indicates that violence, in terms of coercion and brutal rape, is justified for men’s sexual pleasure. Implicit propagators of the power/dominance theory consistently view the woman raped as ‘victims’ and not ‘survivors’ because of the societal stigma attached to the dominating act of rape.

‘No Self Control’ Theory

The ‘No Self Control’ theory views rape as a sexual act, instead of viewing it as an act involving power and/or dominance. One strand of this theory premises rape on the uncontrollable nature of the male sexual drive. Men with this belief argue that they cannot be held responsible for their uncontrollable sexual urges. Proponents of this theory propose “both that men’s sexual energy is difficult to control and that women have a key role in its loss of control,” since women deny sex to men who have to relieve their sexual drive. Maya John, for example, explains rapes in India as an “outcome of people’s sexual frustration that preys on women and children in vulnerable conditions.” Thus, in this theory, one of the causes of rape is a lack of access to more accessible, and consensual sexual activity.

‘Cultural Spill-over’ Theory

The cultural spill-over theory suggests that support for rape may not be restricted to principles and mind-sets that directly disregard sexual violence. There may be other aspects of culture, that implicitly purport to legitimize rape. This could transpire if patterns of force or violence in one field of life, for example, corporal punishment in schools, mass media violence and governmental use of violence, are generalized to the point of normalisation within society and thus within relationships. Violence in such non-sexual contexts is then associated with behaviour such as rape.

‘Class-Patriarchal’ Theory

Kavitha Krishnan promotes the ‘class-patriarchal theory’ and establishes a relationship between sexual violence and the organization of production and social relationships in society. According to her the growth of capitalism in India is consistently associated with the mounting liability on women to reproduce labour through procreation and undertaking unpaid household chores and child-nurturing. Simultaneously, the advent of capitalism has increased access and exposure of women to professional opportunities previously reserved for and confined to men. The dichotomous effect of capitalism on women’s rights is coupled with the increasing role of patriarchal principles to deny women access to equal rights and opportunities. With the rise in social activism demanding equality and resisting conventional notions of patriarchy and submission, sexual violence and rape then operate as tools to generate fear and keep women confined to the roles of reproduction and maintenance of the household.

Masculinities Theory

The masculinities theory examines how the gender system influences the behaviour of men as they struggle to reach “aspirational hegemonic masculinity” an archetype that encompasses sustaining control over women. Men tend to generally encourage and directly engage in violent and aggressive behaviour to conform to the constant need to prove their manhood. Recent trends towards independent women asserting their rights and undertaking professional jobs, education and roles outside the household tend to cause a “sense of displacement” in men who previously enjoyed sole representation within these positions. Reports have stated that as women are now “entering male bastions of power [this] has challenged the sense of superiority and entitlement of the traditional Indian male.” This sense of insecurity and perceived infringements upon their superiority then compels men to lash out and channel their frustration in the form of sexual violence and rape.

PART III: Evolution of Rape Laws in India

This section looks at how legal provisions on rape in the Indian Penal Code, 1860, Indian Evidence Act, 1872; and Code of Criminal Procedure, 1973, have undergone transformation through various amendments over time. The Mathura rape case and the public outrage that followed led to the Criminal Law (Amendment) Act, 1983.

Sections 375 and 376, Indian Penal Code (as enacted):

Section 375 of the Indian Penal Code (IPC) defines rape. The original section included within the ambit of its definition of rape: forceful sexual intercourse with a woman in the absence of her consent; absence of her free consent due to fear of death or hurt; lack of knowledge that the sexual intercourse she was consenting to was not with her husband; and sexual intercourse with a girl below the age of sixteen irrespective of consent. Section 376 provides the punishment for rape.

There have been two critical amendments to sections 375 and 376 first with the Criminal Law (Amendment) Act, 1983 following the Mathura judgment, and then in 2013 which was promoted by the Delhi gang rape in 2012 and the subsequent Verma Committee recommendations. The latter is discussed in the following module.

The Mathura Rape Case

 

The judgment in Tuka Ram & Anr. v. State of Maharashtra marked a landmark moment in the interpretation of rape and involved discussions around the meaning of consent and the relevance of the sexual history of the survivor. Mathura, a fourteen to the sixteen-year-old tribal girl was allegedly raped by two policemen within a police compound. The Sessions Court acquitted the policemen on the ground that as Mathura was ‘a shocking liar’, had eloped with her boyfriend, and was ‘habituated to sexual intercourse’, she could not be raped. The Sessions Judge feared that Mathura had cried ‘rape’ in order to prove herself ‘virtuous’ before the crowd, which included her lover. The High Court reversed the verdict and convicted the policemen by holding that mere passive submission or helpless surrender induced by threats or fear cannot be equated with desire or will constitute consent. The Supreme Court finally set aside the High Court judgment, acquitted the defendants and held that since Mathura had not raised an alarm she had wilfully engaged in sexual intercourse with the policemen. They ruled that her consent was not consent, which could be brushed aside as ‘passive submission’. Moreover, since there were no injuries visible upon physical examination and no conclusive evidence concerning the fear of death or hurt was established by the prosecution to vitiate consent and fall within the ambit of the definition provided for in s.375, the Court concluded that the accused police constables must be acquitted.

Women march in New Delhi in 1980 to demand that the Indian Supreme Court reconsider the case of Mathura, who accused two policemen of raping her when she was a teenager. The high court overturned the convictions of the two constables.

This decision was widely criticized. Redefining consent in a rape trial was one of the major thrusts of the campaign against this decision. The Mathura judgment had highlighted the fact that it is extremely difficult for a woman to prove that she did not consent to rape beyond a reasonable doubt as was the general standard of proof required for prosecution under criminal law. In the aftermath of this case, two major demands for legal change from women’s rights activists were: (1) Where sexual intercourse is proved, and the woman alleges that she did not consent, the onus of proving the presence of consent should shift to the accused. (2) A woman’s past sexual history should not be used as evidence influencing the judgment and vitiating the occurrence of a crime in a rape trial. These recommendations were also made by the 84th Report of the Law Commission of India on Rape and Allied Offences in 1980.

Open Letter to the Chief Justice of India

Vexed by the issue of regression in women’s rights and empowerment following the Supreme Court verdict in the Mathura case, a few academicians (namely, Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar) wrote an Open Letter to the then Chief Justice of India requesting a re-examination of the facts and circumstances of the case. Several issues regarding the misuse of executive and administrative power, the sacrifice of human rights of women under the law and Constitution, the difference between consent and submission, the re-enforcement of pre-marital sex taboos, and the possible licensing of rape through such a regressive judgment, among others, were highlighted. Moreover, “the socio-economic status, the lack of knowledge of legal rights, the age of the victim, lack of access to legal services, and the fear complex which haunts the poor and the exploited in Indian police stations” were displayed as significant factors that should have been taken into account, especially in our “search for liberation from the colonial and male-dominated notions of what may constitute the element of consent.”

Sakhare stands with Mathura, left, at an anti-rape rally after the Indian Supreme Court ruling. This photo appeared in a booklet about Sakhare’s career as a women’s activist.

The Open Letter also criticized the income bias carried forth by the executive and judicial branches of the government, wherein affluent women have been able to seek justice, while millions of Mathuras in the countryside have failed to attain solace on account of first information reports not being filed, medical investigations not being made in time, lack of access to legal services at any level and absence of the privilege of a vocal community to support their plight.

Criminal Law (Amendment) Act, 1983

The Criminal Law (Amendment) Act, 1983 was enacted following the Mathura Rape case, the Open Letter to the Chief Justice of India and the Law Commission’s recommendations. The Amendment made some significant changes to the existing law on rape. Some of the significant features of the Amendment Act are as follows:

Changes in the Indian Penal Code:

  • A new clause was inserted in Section 375 that negates the consent of a woman by reason of intoxication and unsoundness of mind.
  • The Act amended Section 376 and provided for a minimum mandatory punishment of seven years for the offence of rape, except for rape in certain circumstances.
  • The new sub-section (2) was inserted in Section 376(2) that punished police officers, public servants, management or staff of a jail or hospital who committed rape on a pregnant woman, or a woman below the age of twelve or engaged in gang-rape, with imprisonment ranging from ten years to life accompanied with fine.
  • The following new sections were inserted in the IPC:
    • Section 376A punished a man having sexual intercourse with his wife without her consent during separation with imprisonment up to two years and a fine.
    • Section 376B provides for a maximum five-year imprisonment to public servants misusing their position to have sexual intercourse not amounting to rape with any woman in custody.
    • Section 376C entails a punishment of up to five years and a fine for the superintendent or manager of a jail, remand home or place of custody, who induces any female inmate to have sexual intercourse not amounting to rape.
    • Section 376D punishes the management or staff of a jail or hospital with imprisonment extending to five years accompanied with a fine for sexual intercourse with any woman not amounting to the criminal offence of rape.

Changes in the Indian Evidence Act:

  • The Criminal Law (Amendment) Act, 1983 also affected the Evidence Act with the insertion of section 114A that requires the court to presume the absence of consent where sexual intercourse by the accused is proved, and the woman alleges that she did not consent to such sexual intercourse. The burden then shifts onto the accused to prove the existence of consent.

Changes in the Code of Criminal Procedure (Cr.P.C.):

  • Criminal Law (Amendment) Act, 1983 also amended Section 327 of the Cr.P.C. to mandate the inquiry into, and trial of rape or any offence under sections 376, 376A, 376B, 376C or 376D in camera.

Conclusion:

The 1983 Criminal Law Amendments were all intended to afford greater judicial protection to a rape survivor and to remove some of the obstacles women experience in trying to access justice. New criteria for statutory rape were recognised, in camera proceedings were introduced, and inequalities within the system such as the prosecution having to prove consent was not given, instead of the accused having to prove consent was given were redressed. The following module will examine the Criminal Law Amendments from 2013 as well as contentious issues that remain within the spheres of rape law and evidence such as the lack of recognition of marital rape as a crime and the two finger test used in collecting ‘evidence’.

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Reference

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