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[Video] Mathura: The rape that changed India

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Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

Written by myLaw

The marital exception to rape: How to make a crime disappear

SayakDasguptaSir Matthew Hale, one of England’s greatest jurists, was a simple, humble, and fastidiously honest man. In fact, so unimpeachable was his character that, despite being a royalist who defended the opponents of the Commonwealth of England during the English Civil War, he was still appointed a justice of the common pleas by Oliver Cromwell when the Commonwealth came to power. When the Restoration happened, the King appointed him Chief Baron of the Exchequer, even though he had held office in the government of his mortal enemies. Hale, it is said, had no desire to receive the knighthood, so he literally had to be tricked into it (Lord Clarendon invited Hale to his house where the King was waiting to knight him on the spot).

For all his virtues, though, Hale was as much of a fusty old antiquarian when it came to women, as you would expect from a privileged, white, devoutly Puritan Englishman from the 1600s. In a letter to his granddaughters, he wrote longingly of a time when “the education and employment of young gentlewomen was religious, sober, and serious, their carriage modest and creditable was their habit and dress” and “when they came to be disposed of in marriage, they were themselves a portion whether they had little or much, and could provide for and govern a family with prudence and discretion, and were great helps to their husbands, and knew how to build up a family, and accordingly were instruments in it”. He bemoaned how times had changed and “young gentlewomen learn to be bold, talk loud and more than comes to their share, think it disparagement for them to know what belongs to good housewifery, or to practise it, make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest of fashions.” He wrote that he would never allow his granddaughters to be like this, that he would train them to be “good wives and better portions to your husbands than the money you bring, if it were double to what I intend you, for you will be builders up of a house and family, not destroyers of it”. Above all, he wanted them to be “good examples to others, and be thereby a means to take off the reproach that justly enough lies upon the generality of English gentlewomen, that they are the ruin of families”.

Like most men of the time, Hale saw women as some sort of loveable hybrid between a trainable pet and an obedient servant, who should be strictly controlled lest they go out of hand. It is perhaps somewhat revealing that after his wife died, Hale married his housekeeper, Anne Bishop, whom he described in his will as “most dutiful, faithful and loving”, words that can also be used to describe an adoring butler or a loyal dog.

No longer enough to create further exceptions”

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King's Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi's image is from the Press Information Bureau.

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King’s Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi’s image is from the Press Information Bureau.

Perhaps Hale’s most famous work as a legal scholar is the Historia Placitorum Coronæ or The History of the Pleas of the Crown, which was published in 1736 (60 years after his death, despite an instruction in his will clearly stating that none of his manuscripts were to be published posthumously) and is considered a seminal work in the development and evolution of common law. It was in this book that he wrote the now (in)famous line that had been used until relatively recently in most common law countries to defend marital rape:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

The husband, then, by virtue of marriage, gained complete right over his wife’s body. Wedding vows were meant to be a form of permanent consent for sex. It would not be a stretch to say that for most women at the time, the bond of marriage was akin to bonded servitude mixed with sexual slavery.

This would be the norm in England for the next two centuries, but changes in social attitudes towards marriage began to make the marital exemption to rape seem increasingly more ridiculous with every passing year. In 1990, the Law Commission in England released the Working Paper No. 116 on Rape within Marriage in which it recommended unequivocally that the exemption should be abolished. But the final death knell for the spousal exemption came in 1991 with the House of Lords’ landmark decision in R. v R, in which the court held that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The judges observed that “courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes,” but then added the powerful line: “There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.”

On the question of whether the court should step aside to leave the matter to the Parliamentary process, the House of Lords stated: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

RvR_HouseofLords_ChiefJusticeLordLane

With these words, England removed the marital exception to the crime of rape. In the United States, states had begun to remove this exception since the 1970s, and by 1993, all 50 states had done so. By the dawn of the 21st century, marital rape was a crime in most European nations. Our neighbour Bhutan had declared it a crime as far back as 1996, and Nepal followed suit 10 years later. Today, marital rape is a crime in the majority of the countries in the world. India, however, chooses to remain on the list of countries where it isn’t; a list that includes Afghanistan, China, Eritrea, Iran, Iraq, Libya, Pakistan and Saudi Arabia.

In the wake of the horrific events of December 16, 2012, the Justice J.S. Verma Committee reflected long and hard on how our criminal law system deals with various kinds of sexual violence perpetrated on women and children. Nearly six pages of its Report concentrated on the problem of marital rape. It recommended that the exception for marital rape be removed (Exception 2 to Section 375 of the Indian Penal Code, 1860 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”), and that the law ought to specify that a marital relationship between the perpetrator and the victim cannot be used as a defence against rape and that it should not even be regarded as a mitigating factor justifying lower sentencing for rape.

MaritalExceptionToRapeIPC

The ordinance that was drafted on the basis of the Report included many of its recommendations but left out some of the most important ones, perhaps chief among them the recommendation on marital rape. Defending the ordinance, Union Finance Minister P. Chidambaram said that issues like marital rape were difficult and that the government needed more consultations. This was, to put it mildly, perplexing. In modern times, the criminalisation of marital rape seems to be a very simple, logical, rational conclusion. In fact, one needs to perform several extraordinary feats of mental gymnastics to justify and legitimise the opposite. How is it that those who maintain that rape should attract the harshest punishment for the perpetrator suddenly find the act acceptable when a husband does it to a wife, as if a wedding is a Harry Potter-esque invisibility cloak that makes the crime disappear?

As a response to the government’s hedging on the issue, we posted the following comic on Facebook on February 9, 2013:

WSDP - Marital Rape

Now, I confess there are problems with this comic – it’s a little simplistic, and also Einstein might not have been the best choice to deliver this lesson as he was hardly the greatest husband in the world – but, the point was that it does not, or should not, take a genius to understand why the marital exception to rape should be removed.

A family that disrespects individual autonomy together…

And now, it seems the marital exception is one of those things the UPA and NDA governments agree upon. Well actually, while the former claimed that they were at least considering it, the latter seem to have ended the conversation altogether. Maneka Gandhi, the Minister for Women and Child Development has said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.” This is a stunning departure from her position on the marital exception to rape just last year and the most puzzling argument I have ever heard about a legal issue. What does illiteracy or poverty have to do with amending a law that demonstrably causes physical and mental trauma to individuals? Did social customs and religious beliefs of some people stop the legislature from making laws against sati, child marriage, dowry and caste-based discrimination?

MaritalRape_CriminalLawAmenedment2012

The “mindset of the society to treat the marriage as a sacrament” point is an old one. The claim is that marriage is a sacred bond between a man and a woman (only between a man and a woman), and that the state has no business interfering in the domestic affairs of a married couple. This argument is woefully flimsy. Laws on domestic violence and divorce would not exist if the state did not think legal intervention was necessary even in a marriage.

A similar argument was used in a report on the recommendations of the Justice Verma Committee prepared by the Department-Related Parliamentary Standing Committee on Home Affairs and presented in both houses in March, 2013. It stated that while some members had suggested that Section 375 of the Indian Penal Code should allow “some room for wife [sic] to take up the issue of marital rape”, that “no woman takes marriage so simple [sic] that she will just go and complain blindly” and that “consent in marriage cannot be consent forever”, several members “felt that the marital rape [sic] has the potential of destroying the institution of marriage.” The report went on to say that “In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.”

What this suggests is mind-bogglingly terrifying. It seems to assert that the foundation of an Indian family is not based on trust, love, equality, understanding, cooperation, mutual respect and interdependence. It is based on a skewed power structure where one partner gets to inflict violence on the body and mind of the other, where the success of the relationship depends on how much the partner with less power can endure. Imagine being punched in the stomach by your brother and then being told that you should just suck it up because the law says when your sibling hits you, it’s not assault. Now imagine that he beats you up whenever he pleases and you are told that this is not a crime being committed repeatedly on your body because surely, as a family, you can work things out. If you report him to the police, the family system in India will crumble. Surely, the preservation of the “Indian family” is more important than the physical and mental trauma being caused to you.

The Standing Committee consisted of 29 members at the time, none of whom had any specific experience or expertise in women’s issues. Only 3 of the members were women. One of them was Dr. Kakoli Ghosh Dastidar, a Trinamool leader who in December, 2012 had said that the gang rape of Suzette Jordan in Park Street, Kolkata “was not at all a rape case. It was a misunderstanding between the two parties involved between a lady and her client,” thus insinuating that Jordan was a sex worker. When the report was published, a dissenting note was appended to it, and among other things, it condemned the Standing Committee’s position on marital rape as unconstitutional and contrary to the Justice Verma Committee’s recommendations. The note was given by only two members of the Standing Committee: D. Raja and Prasanta Chatterjee, of the Communist Party of India and Communist Party of India (Marxist), respectively. No other member recorded dissent.

India’s relationship with its colonial era laws is simultaneously confounding and tragicomic. On the one hand we puff up our chests with pride when we think of our freedom struggle and victory over our colonial oppressors, and on the other hand we cling stubbornly and blindly to their archaic laws, which have no place in modern times – laws that even they have done away with. But what is truly depressing is that we undervalue women so much that we would rather grasp at half-baked fictions and outdated notions of family than address the real harm being done to real individuals in real time. We are only too happy to declare that our society is too primitive to accept modern ideas and then sacrifice the safety of women on the altar of our own apathy. Yes, laws are often only amended after there has been a change in social attitude towards the issue in question, but in India, we have also had a long history of enacting laws as instruments to bring about such social change. We can either embrace that history and move with the times or throw in our lot with a man who died four centuries ago and a belief that should have died with him.

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

Written by myLaw

How England, Scotland, Australia, and the United States removed the marital exception to rape

PraptiPatelOn April 29,the Union Minister of State for Home Affairs announced in response to a question in Parliament that the government had no plans to criminalise marital rape. Illiteracy, poverty, societal customs, religious beliefs, and the general mindset of the society which treats marriage as a sacrament were put forward as reasons to not bring in any such amendment.

England and Scotland

MatthewHale

Matthew Hale (1609-1676)

The common law on the matter of the rape of a wife by her husband followed the rule that a wife became her husband’s physical and sexual property as part of the marriage contract. A man was therefore exempt from prosecution for the rape of a woman to whom he is married to. The infamous statement of the seventeenth century judge Matthew Hale, that “A husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract” has been followed in common law jurisdictions across the world.

The protection from prosecution given to spousal rape was also recognised in Scottish criminal law. The Scottish High Court of Justiciary however, modified this view in the 1989 case of S. v. H.M. Advocate and removed the marital immunity from rape. The same view was taken in England by Appellate Committee of the House of Lords in R. v. R in 1991.

Australia

In 1976, with the Criminal Law Consolidation Act Amendment Act 1976, South Australia became the first jurisdiction in the common law world to abolish the presumption that a wife gave the kind of consent highlighted by Matthew Hale and enabled the conviction of men for the rape of their wives. The prosecution however, had to be backed by evidence of threats or violence. Even this requirement was done away with in 1992.

USA

Historically, marital rape was statutorily excluded from prosecution in the United States because rape was defined as the forced sexual intercourse by a male with a female who was ‘not his wife’. Nebraska became the first state to abolish the exemption from prosecution in the mid-1970s and by 1993, marital rape was a crime in all 50 states.

There were however, vast differences in how each state has viewed and prosecuted the crime. While 17 states treated marital rape and other forms of rape the same, the others had different rules such as shorter penalties or exclusions because of lack of evidence of violence. As of 2005 however, South Carolina remains the only US state where proof of excessive force or violence of a “high and aggravated nature” is required to establish an offence of marital rape.

Written by myLaw

Rape shield: Prohibit use of victim’s sexual history in rape trials

SuhasaniRao_RainmakerfacultyUnderstanding the need for greater awareness to deal with sexual offences has come into focus over the last two years. The law in this regard is changing. However, there still remain some gaping holes in a framework that should be comprehensive. This article explores some of the issues that remain unaddressed by the current laws in force, in India, concerning sexual offences.

Rape Shield Laws

In India, victims of sexual offences are guaranteed anonymity. Under Section 228A of the Indian Penal Code, 1860, disclosing the identity of a victim of certain sexual offences is a crime. Till as late as 2003, it was lawful to bring up the previous sexual history of a victim of rape in order to establish consent. In 2003, a provision of the Indian Evidence Act, 1882 (“Evidence Act”) was deleted in a move towards providing protection to the victims of rape. Further, Section 146 of the Evidence Act now prohibits the questioning of a victim of rape along the lines of her previous sexual history in order to prove consent, in a rape trial. These provisions together, provide a limited rape shield in the Indian legal framework.

Rape shield laws limit the ability of defendants to cross-examine complainants in rape trials about their past sexual history. They also prohibit the disclosure of the identity of alleged rape victims.

SexualHarassmentAtTheWorkplaceMOOC2The philosophy behind these laws, firstly, is that the prior sexual history of a complainant is irrelevant to the question of whether an offence of rape can be established. The facts of the particular instance should be the only evidence that determines guilt. They provide an extra layer of protection to “victim blaming”, the phenomenon of holding the victims of crimes partially or even completely responsible for the rape. The violation of their anonymity and the disclosure of the identity of a rape victim often lead to more violation through increased scrutiny and the stigma attached to the offence of rape. Moreover, given that sexual offences violate the most fundamental right of a human being to exist in peace with full bodily integrity, rape victims often feel a deep sense of fear and trauma when identifying their attackers. Maintaining the anonymity of rape victims is therefore also aimed at providing victims with a sense of security when noting their testimony.

Rape shield laws around the world

These laws trace their origins to the 1970s and 1980s in the United States of America when most of the states provided different levels of protection for rape victims such as mandatory anonymity and restrictions on the admissibility of the previous sexual history of victims as evidence in rape trials. Since then, rape shield laws have been formulated in many jurisdictions. In the United Kingdom, the Youth and Criminal Justice Act of 1999 prohibited the use of a victim’s sexual history as evidence in a trial. In New Zealand, a rape victim’s sexual history has to be vital to the context of the trial for it to be permitted in evidence. Otherwise, the law prohibits the use of such evidence. Similarly, in Australia, rape shield protection is applicable in all territories. Even Ireland, a fairly conservative jurisdiction, has rape shield protection for victims of sexual offences with very limited exceptions to the prohibition of admissibility of the victim’s sexual history as evidence.

Conflict with fair trial rights

Often however, rape shield laws present a conflict with the defendant’s rights to a fair trial, including the defendant’s right to confront the complainant and challenge the veracity of the allegation. The rape shield law in the United Kingdom for example, was read down by the House of Lords, holding that a law that bans juries in rape trials from hearing evidence that an accused had a previous sexual relationship with the accuser breached his right to a fair trial.

Thus, most rape shield laws are couched in negative terms, completely excluding the rape victim’s sexual history from being introduced as evidence. Thereafter, exceptional cases are listed where such evidence may be introduced, notable among them being situations where the defendant’s constitutional right to a fair trial may be violated.

The argument for some measure of anonymity of the defendant in trails of sexual offences is finding some ground in current debate as well. It is opined that it is necessary to keep the identity of the defendant under wraps, at least until the judgment in the case is declared. This is because the stigma attached to sexual offences can deeply affect and destroy the lives of not just the direct victims of the offences, but also the relatives and family members of the defendants.

Absence of a rape shield law in India

Indian laws provide limited protection to victims of sexual offences by prohibiting the disclosure of their identity. The need for a rape shield law in India needs to be seen alongside efforts to combat other types of secondary victimisation of rape victims. Rape victims in India would often be subject to insensitive examination and humiliation by public authorities such as medical examiners and law enforcement professionals in charge of investigating the offence, including the “two-finger test”, (“TFT”) involving a physical examination by a medical practitioner of the rape victim’s genitalia. (In India, a man cannot be a victim of rape). The medical practitioner would insert two fingers into the rape victim in order to establish the “laxity” of her muscles and determine whether the victim was “habituated to sex”. A finding that the complainant was habituated to sex would assist the defence. In fact, in such cases, the defendant would claim that any sexual intercourse between the victim and himself was consensual since the victim was “used to sexual intercourse”.  The pervasiveness of the two-finger test meant that successful prosecutions for rape were limited to instances where the victim was a virgin or at least perceived to be so, at the time of the occurrence of the crime.

The Supreme Court of India has repeatedly grappled with the TFT and has had many a scathing opinions on its applicability. A decisive change of the law occurred last year in Lillu v. State of Haryana in 2013. The Court outlawed the TFT in the following words: “…., the two finger test and its interpretation violates the right of rape survivors to privacy,  physical and mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, be given rise to presumption of consent.”

In light of this judgment, on December 16, 2013, the Department of Health Research under the Indian Council of Medical Research issued guidelines to prohibit the use of the TFT in forensic medical examinations of victims of rape. This prohibition is now part of the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) brought out by the Government of India.

It is now a medically accepted fact that the loss of virginity can occur without intercourse. Given this scientific evidence, it becomes necessary to re-evaluate the way the law perceives and protects victims of sexual offences. Discarding the use of the TFT was a small step.

There is an immediate need for clear legislative directives throughout the judicial hierarchy, the media and members of the law enforcement agencies to approach the crime of rape with greater sensitivity. It is the need of the hour to implement a humane and a sensitive understanding of the offence of rape so that a rape victim’s trauma is not prolonged through brutal investigation and trial procedures.

(Suhasini Rao is part of the faculty on myLaw.net.)

(This article was corrected on May 1, 2014 to remove an error of law. The prior version did not take into account the 2003 amendment to the Evidence Act. We are grateful to our readers for bringing this to our attention. – Editor)

Written by myLaw

What is wrong with Indian rape law?

Provisions in Indian law covering the offence of rape have come under scrutiny since the brutal rape in New Delhi last month. Mrinal Satish, an Associate Professor at the National Law University, Delhi, spoke with us and recorded his views on the deficiencies in the law relating to rape. Mr. Satish, who is also a doctoral candidate at Yale Law School, focused on problems with sentencing in rape trials.

Mrinal Satish

Mrinal Satish

Edited extracts from the transcript of the talk.

Sections 375 and 376 of the Indian Penal Code, 1860 (“IPC”) deal with the offence of rape. Most cases under this fall under Section 375 “secondly”, where the prosecution has to prove that the man had sexual intercourse with the woman without her consent. Under Indian law, unlike the law of several other countries, there is no question of having to show that the accused knew or intended to cause the act of rape. The burden on the prosecution is therefore lower in India.

Reporting the crime

Once the offence is committed, a First Information Report (“FIR”) can be filed in the nearest police station. The Supreme Court has held in various cases that a delay in filing the FIR should not be considered detrimental to the case or become the basis for disbelieving the prosecution. On the facts and circumstances of each case, the court can assess whether the delay can be condoned. In most cases, the delay is condoned because people might not want to report the offence of rape immediately.

The police do not have any guidelines on the manner in which rape cases need to be recorded. Guidelines that women police officers should be in police stations and that the crime should recorded by them are not concrete ones.

Medical examination

Once the FIR is recorded, the processes that follow are those of recording the statement of the survivor and the medical examination. Section 164A of the Code of Criminal Procedure, 1973 (“CrPC”) deals with the manner in which medical examination has to be conducted. As far as possible, only a female medical officer in a government hospital should examine a woman. On the issue of what evidence should be collected, some states have protocols and proformas. Most other states do it through practice and some issues have come up in this context regarding the nature of evidence recorded during a medical examination.

The doctor has to look for the presence of forensic evidence. Even though the Section does not require ejaculation, the presence of semen strengthens the case against the accused. Similarly, while the absence of injuries is not a factor that is detrimental to the case, the presence of injuries on the body of the victim strengthens the case. Doctors, however, do make a note of the fact that there are no injuries and no semen along with value judgments about why they think that has happened. They are not required to do this. There are cases where doctors testify and record in a medical examination that there had been no injuries and from that, implying that there had been consent. This is a problematic aspect of the entire medical examination process.

The other egregious forms of medical examination is the “two-finger test” where the doctor inserts one or two or more fingers into the hymenal orifice of the victim to figure out whether previous penetration had taken place. This understanding of medical jurisprudence comes from authors in the late nineteenth and the early twentieth centuries. They wrote that the rupture of the hymen is an essential ingredient to determine whether sexual intercourse had taken place. Medical science has subsequently shown that this is not essential. Medical jurists of that time also said that they had seen cases where the hymen had not been ruptured even in women who had reported past sexual encounters. The reasoning was that if the hymen was not ruptured and if the doctor was able to insert two fingers, then it showed that a body of the size of an erect penis could have previously penetrated the vaginal orifice of the woman.

The test however, was used to show ‘habituation to sexual intercourse’. Until Section 155(4) of the Indian Evidence Act, 1872 remained in the statute books (it was repealed in 2003); the past sexual history of the woman could be raised in cross-examination to impeach her credit-worthiness. The defence would use this fact of “habituation” to say that the woman was of “bad character” and hence her testimony should not be given enough weight.

The Supreme Court has held that the sole testimony of the woman was sufficient to convict if the court found such testimony reliable. Mr. Satish said that the two-finger test was relevant now because in determining whether to rely on the testimony of the woman, the defence would attack the credit-worthiness of the victim and argue that conviction should not be based solely on the testimony of the woman.

In most rape cases, there are no witnesses. The only evidence is the testimony of the woman and any forensic evidence that is available. If forensic evidence is not available, the defence can secure an acquittal if the creditworthiness of the victim is attacked. “With the repeal of Section 155(4), the entire issue of habituation to sexual intercourse should have gone out of the window. Unfortunately what happened subsequently was that since medical jurisprudence texts said that the “two-finger test” could also be used to show penetration, it remained in use in medical protocols. Consequently, it continued to be recorded by doctors in the medical examination and it comes into the evidence in the rape trial before courts.” Indirectly therefore, the prosecution, the defence, and the court gets to know of the sexual history of the woman and that, Mr. Satish said, is making a difference in the adjudication of rape cases.

Law reform has to say that ‘past sexual history’ is absolutely not relevant to any part of the criminal proceeding. The Criminal Law (Amendment) Bill, 2012, which is before the Lok Sabha, has said that past sexual history would not be relevant in the issue of consent. Mr. Satish said that this had to be extended to other parts of the rape trial and to other limbs of Sections 375 and 376. Law reform would also have to say that the ‘two-finger test’ is useless and that the invasive procedure should not be conducted on survivors of rape. It would also have to indicate what the doctor has to look for in a medical examination — forensic evidence if available and recent evidence of penetration. All the tests that look to determine penetration before the time period in question are useless. Law reform should be targeted towards that. More than law reform, medical protocols should also be reformed, which involves the reform of medical textbooks and syllabi.

Guilt determination

One of the important things that courts do in determining the reliability of the victim is to look at her demeanour. Under the CrPC, the judge should record the demeanour of every witness and that is considered an important part of the trial process. “If you look at appellate court judgments, they normally say that the trial court has had the advantage of looking at the witnesses.” It is felt that by looking at their demeanour, courts are able to determine how much weight should be given to the testimonies of the witnesses.

Another issue that has arisen frequently is how the victim should behave while testifying. There have been studies conducted in the United States and other Western countries about the “CSI effect” and perceptions about how a victim has to behave. Juries are known to have relied on their past experiences in dealing with trauma to see how they expect witnesses to react in a similar situation. “In the Indian context, in rape cases, you see courts being very sympathetic to victims who are emotional on the stand, who cry, shiver, faint, or have to be given water. Courts even say that these actions obviously show that the victim was traumatised and consequently her testimony should be completely believed.” Indian courts have therefore contributed to the stereotype of what a rape victim looks like and how they behave.

SupremeCourtofIndia_rapeallegations_Westernwoman_Indianwoman

In the 1983 Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, the question before the Court was whether the sole testimony of the woman should be considered. In ruling on this issue, the Court sought to make a differentiation between what they called a “Western woman” and an “Indian woman”. They gave eight reasons why a “Western woman” would falsely allege rape and twelve reasons why an Indian woman would not do so. These twelve reasons include the fact that an Indian woman is from a non-permissive society and so would not be keen to report any incident likely to affect her chastity; that if she is unmarried, it would be difficult for her to secure a suitable match from a respectable family; that she would fear being taunted by others; that if she was married, her husband and his family would want to avoid the stigma that comes with rape and would not want to give too much publicity to it; and that the victim would fear being considered promiscuous. The Supreme Court had thus given importance to the notions of honour, shame, and chastity. In Rafiq v. State of Uttar Pradesh, the Supreme Court said that a woman feels a deep sense of “deathless shame” when she is raped.

All these cases constructed a stereotypical rape victim who really treasures her chastity and her virginity, and therefore, would be traumatised and would react in a particular way. “If you look at the way the courts adjudicate this issue, these stereotypes are still prevalent. That, in my opinion, is at the core of the problem that lies with rape adjudication in India currently.”

The past sexual history was relevant here as well because if a woman had sex outside of marriage, it is felt that she had nothing to lose. Rape is not considered a crime against bodily autonomy and dignity, but more a crime against chastity. “In my assessment, this is an important factor that comes into rape trials and affects the manner in which courts determine whether the defendant is actually guilty of the crime. Therefore, the clichéd expression that it is a trial of the victim and not a trial of the accused in rape cases.”

Sentencing

In his study of disparities in sentencing in rape trials in India, Mr. Satish found that the site of stereotyping had shifted from the guilt adjudication stage to the sentencing phase of the trial.

“In cases where courts actually find the accused guilty of the crime, then some of the stereotypes spill over to the sentencing phase of the trial.” The reason is various Supreme Court judgments that suggest that the sole testimony of the woman should be a sufficient basis for conviction. In 2008, the Supreme Court also ruled that the absence of medical evidence was not reason enough to acquit the accused if the testimony of the woman is available. It is in this context of the massive reduction in judicial discretion in the guilt determination phase that stereotyping has spilt over to the sentencing phase. Some theorists have spoken about a ‘ballooning effect’ — if you take a balloon and press one side, the air shifts to another side. Similarly if you squeeze the discretion on one side, it shifts to the other side of the system. Rape sentencing in India is a classic example of this.

In the context of rape sentencing, medical evidence plays a very important role, something akin to a lie detector. “What I found was that where the doctor was able to insert two fingers into the hymenal orifice of the woman, relative to cases where the doctor was not able to do that, sentences given to defendants decreased.” This showed that judges were actively considering the past sexual history in their sentencing decisions.

He also found that in cases where injuries were present, sentences were higher. Even though the presence of injuries was an aggravating factor, the worrying aspect was that where injuries were not present, the sentences were much lower. The minimum sentence for Section 375, covered in Section 376(1), is seven years. “In cases where injuries were present, you could see sentences going up to ten years as well. But where injuries were not present, you could see sentences coming down to five years, three years, and the like.” It showed that courts were considering the absence of injuries to imply some sort of consent as well.

Image above is from Pixabay.

Image above is from Pixabay.

The marital status of the victim was another issue. Sentences were higher when the victim was not a virgin. Similarly, sentences given in cases of the rape of married women were lower than sentences given in cases of the rape of unmarried women. The conclusion here is that courts were considering the prospect of marriage in rape sentencing. There might be an argument that it may be justifiable in some contexts but generally, this stereotype is very disturbing. Justice Markandey Katju’s judgment in Baldev Singh v. State of Punjab got a lot of media coverage recently. In that case, the Supreme Court reduced the sentence and ordered Rs. Fifty thousand compensation on the grounds that between the incident of rape and the time the case reached the Supreme Court, the woman had married.

Rape myths, which are prejudicial stereotypes or false beliefs about rape, rape victims, and rapists, are another issue. In most cases, they end up being prescriptive and mandate how a woman should react to a situation of rape. One of these myths is about what a woman goes through when raped by a stranger in contrast to a situation where she is raped by an acquaintance. In cases where women had been raped by acquaintances, courts generally gave lower sentences. Studies have shown that the myth that being raped by strangers was not more traumatic than being raped by acquaintances, so its perpetuation in sentencing is problematic.

The other reason why there are disparities in sentencing is the meaning of “adequate and special reasons” to reduce sentences under Section 376 of the IPC. Courts have used a variety of criteria here including the young age of the accused, the fact that the accused hailed from a rural area, the fact of the illiteracy of the accused, the fact that the accused had a family to support, caste, and various other factors.

Law reform

One of the proposals for law reform that have been in the limelight since the brutal rape in Delhi is gender neutrality. Should the law recognise that a man can also be raped?

Another issue, which arises in the context of custodial rape under Section 376(2), is whether custody should be confined to premises. For instance, in the custodial rape by a policeman should we look only at the physical premises of a police station? Law reform efforts suggest that this should not be restricted to the premises and should be broadened to include situations where the victim is in a position of vulnerability and the offender is able to influence her through breach of trust and other factors.

The other issue that requires reform is rape sentencing. In the context of the December rape, there have been calls for chemical castration, the death penalty, and the like. We still do not recognise that there is a bigger problem with the manner in which sentencing occurs in rape. Various other countries have some sort of principles and guidelines that they follow in sentencing with respect to any offence. Maybe we need to look closer at laying down what factors should be considered mitigating, and what factors should not be considered at all.

Law reform also needs to start from the stage of rape reporting itself. At the moment, there are no guidelines about the manner in which the police records FIRs given by rape survivors. Other countries have an interface of working with NGOs or with people trained to be able effectively record FIRs. Some thought needs to be given to these processes.

Medical examination protocols should also be amended. There has been a lot of demand for women judges, women prosecutors, and women policemen. “In my assessment, that is not the only solution because it is a question of changing the approach that the legal system has to the offence. Just by replacing men with women, that problem will not get solved.”

 

(Aju John is part of the faculty at myLaw.net)

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Why we need to keep talking loudly about rape laws

By Abhayraj Naik

(This article was originally published in September 2006 in the ‘Editor’s Pick’ section of http://www.indlaw.com)

Neither the judiciary nor the legislature have shown any interest in amending India's grossly inadequate rape laws. Photograph on the left is by Venkit N.Y. Photograph on the right is from the website of the Parliament of India.

Neither the judiciary nor the legislature have shown any interest in amending India’s grossly inadequate rape laws.
Photograph on the left is by Venkit N.Y. Photograph on the right is from the website of the Parliament of India.

The metaphor of ‘rape’ — usually conjures up unpleasant sensations to the average imagination — an act that is primly undermined as a mere moral aberration in ‘civilised’ societies, and one that is apathetically ignored as an unfortunate but jaded reality in nations still on the path to civilisation. Ironically, the absolute ubiquity of rape reveals the magnitude and urgency of the malaise at a shockingly real level – simply put, rape happens everywhere. In villages, in posh penthouse bedrooms, in police stations, in temples and churches, in marriage, in war and peace, in all continents, in day and at night, to men and to women and to transvestites and to children and to most every brand of person — of all ages and colours and creeds. The same sordid play is re-enacted every single day somewhere — a dastardly perpetrator(s), an innocent victim(s), and a setting conducive to the enactment of a sexual onslaught. For victims, it remains a horrifying reality — an affirmation of the painful nightmarish nature of worldly existence, and the non-sanctity of the barest of human entitlements — the integrity of one’s own body. For the perpetrator — it represents an affirmation of power, a satisfaction of sexual perversion, an exercise of humiliation and violence, and a mental belief that somehow ‘authorises’ the violation of another person’s body against their conscious will and despite their opposition. Women and children have suffered as victims of rape much more than have men — this is a simple empirical reality that is undeniable if one were to take resort to statistics and the guise of numbers.

In technical terms, rape is considered an illegality across the world — the criminal law of most countries explicitly dedicates itself to the treatment of rape as an offence against society (and the victim, of course) and prescribes a punishment for the offender. The term ‘rape laws’ encompasses legal provisions of a wide nature — these include constitutional provisions of relevance to actual or potential victims of rape, penal provisions prescribing rape and attempt to rape as criminal offences, penal provisions prescribing punishment for rape and attempted rape, evidentiary rules of special relevance to rape cases, and finally, procedural provisions of special applicability to cases involving rape. The legal treatment of the phenomenon of rape assumes unique significance to women and children — since they as a collective constitute the primary object or beneficiaries of the law’s protective significance. Given these factors of empirical reality, it is something to worry about then that the Indian law relating to rape continues to be rife with instances of absolute immaturity and insensitivity. That is why we need to keep talking loudly about rape laws.

The word ‘rape’ traces its origin to the Latin term rapio, which literally translates to ‘a forcible seizure’. References to rape and its linguistic predecessors (ravishment, defilement, despoiling, and so on) are rife in mythology, in literature, in films and soaps on television, in newspapers, in moral conscience and the lack thereof, in law and society, and in worlds and lives unlawful. In 1628, Lord Edward Coke, one of the evergreen names of legal and jurisprudential annals, defined rape as “when a man hath carnal knowledge to a woman by force and against her will.” Nearly four hundred years later, Indian criminal law reflects some of the same short-sightedness: the definition of rape under Section 375 of the Indian Penal Code, 1860 (“the IPC”) takes into account only penile-vaginal penetration as sexual intercourse for purposes of constituting the offence of rape. All other physical and mental injuries resulting through sexual onslaughts against women and children are to be dealt with either under the head of ‘outraging the modesty of a woman’ (under Sections 354 and 509 of the IPC) or as constituting ‘unnatural offences’ (under Section 377 of the IPC, the same legal provision that criminalises homosexuality in India). Shockingly, the law does not even acknowledge the existence of the phenomenon of raped men, thereby leaving male rape victims with the only option of resorting to the homosexuality-proscribing Section 377 when the alleged rapist(s) is male, and with absolutely no appropriate legal option to avail of when the alleged rapist(s) is female. Similarly, Indian laws do not provide for women raped by women.

The Indian judiciary’s history of dealing with rape cases has never really inspired much confidence. Campaigners, who have been long fighting for the amendment of rape laws, will most often point out Mathura’s caseas one damning singular confirmation of the highest judiciary’s blemished record on the subject of rape. The case of Mathura is also shockingly illustrative of the Indian police and legal regime’s callous treatment of the subject of custodial rape of women. In March 1972, Mathura, a sixteen-year-old tribal girl from Chandrapur district, Maharashtra, was taken to the police station by her brother and some other relatives since they were concerned that she was attempting to elope with her lover (despite her being under age). The two policemen on duty, who had said that they wanted to record Mathura’s statement when she was alone, raped her while her relatives waited outside. The Sessions Judge who first pronounced on the case, unbelievably held that since she had earlier eloped with her boyfriend, she must have been habituated to sex, and, hence could not be raped in the eyes of the law. The High Court thankfully at least reversed the judgment and declared a finding of guilt while sentencing the policemen to a mere six years in prison. On appeal in Tukaram v. State of Maharashtra, AIR 1979 SC 185, however, the Supreme Court once again reversed the order. The prominent logic of the decision of the country’s highest appellate court was that since Mathura had not raised any alarm, and since there were no visible injury marks on her body – she must have given her consent to the sexual act in question. The sheer absurdity of the Mathura rape decision galvanised the Indian women’s movement into agitating for several broad-ranging reforms of the criminal law that dealt with rape. The reformative battle has been slow and arduous, with a few victories along the way. For example, the government passed the Criminal Law Amendment Act in 1983, which created a rebuttal presumption in cases related to custodial rape placing the onerous burden of proof on the accused. Amendments have included the stipulation that the penalty for custodial rape should not be less than seven years imprisonment; provisions for in-camera proceedings that are more sensitive to the victim’s interests; and provisions stating that the disclosure of the victim’s identity a punishable offence. There have been signs of judicial progressiveness as well — judgments have increasingly begun to reflect sensitivity towards the victim’s situation; delays in lodging First Information Reports (“FIRs”) are no longer considered seriously detrimental to the victim’s allegation; onerous burdens of proof have been increasingly lightened due to greater judicial credibility towards the victims’ testimony; sensitivities have been recognised and remedies fashioned to buttress the adequacy of procedural laws, and so on. Despite these advances, the central bulwark of Indian rape law (with antiquity hailing back to the colonial origin of the IPC) — that is, the legal requirement of penile-vaginal penetration as a sine qua non for proving the offence of rape — has stiffly withstood all attempts at amendment, change and progression. The Sakshi case represents the most recent example of this still unresolved quandary.

In 1997, Sakshi, (an organisation involved in issues concerning women and children, particularly those who had been victims of any kind of sexual violence), approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. The petitioner contended that the narrow understanding and application of rape law only to the cases of penile-vaginal penetration under Sections 375 and 376 IPC ran contrary to the existing contemporary understanding of rape as an intent to humiliate, violate, and degrade a woman or child sexually and, therefore, adversely affected the sexual integrity and autonomy of women and children, in violation of the right to life guaranteed under Article 21 of the Constitution of India. The petitioner prayed that the court issue a writ in the nature of a declaration declaring inter alia that ‘sexual intercourse’ as contained in Section 375 of the IPC should include all forms of penetration such as penile-vaginal penetration, penile-oral penetration, penile-anal penetration, finger-vaginal penetration, finger-anal penetration, and object-vaginal penetration. On receiving the petition, the Supreme Court directed the Law Commission of India to respond to the issues raised in the petition.

Following detailed consultations with Sakshi and a few other women’s organisations, the Law Commission released its 172nd Report on the Review of Rape Laws in 2000. The Law Commission recommended changing the focus from rape to ‘sexual assault’, the definition of which was to go beyond penile-vaginal penetration so as to include penetration of an orifice by any part of the body as well as by objects, taking into account cunnilingus and fellatio. Inter alia, the Commission suggested that the law relating to sexual assault be made gender-neutral, that is, to bring about a situation where men and women can be charged for the rape of men, women, or children. In light of these proposed changes, the Commission’s Report also asked for Section 377 of the IPC to be dropped, thereby effectively decriminalising consensual sodomy. Following the release of the Commission’s Report, the government has shown no sign of implementing any of these recommendations on the definition of rape. In 2004, when the Supreme Court finally pronounced its decision in Sakshi v. Union of India, (2004) 5 SCC 518 — all hopes of an expeditious solution to the thorny definitional issue were bid adieu once and for all.

Delhi gang rape protests. Photograph above is by Shilpi Boylla.

Delhi gang rape protests.
Photograph above is by Shilpi Boylla.

The Supreme Court in the Sakshi case held that it would not be in the larger interests of the State or the people to alter the definition of ‘rape’ as contained in Section 375 IPC by a process of judicial interpretation as sought by the petitioners. The court noted that the law relating to Section 375 of the IPC was well settled, and giving any wider meaning to Section 375, IPC would lead to a serious confusion in the minds of the prosecuting agency and the courts, which would unnecessarily prolong legal proceedings and would have an adverse impact upon society as a whole. Two disturbing inferences arise from the Supreme Court’s 2004 ruling. Firstly, it throws the onerous burden of progressive change relating to archaic rape laws back to the Legislature — the very same legislature that has been content to let shockingly patriarchal provisions (especially so, for example, relating to the issue of marital rape) lie undisturbed for long as the effective law on the statute books. Clearly, the highest court of the country displayed strongly patriarchal conservatism in letting skip an opportunity to bring about justice through a gender-sensitive interpretation of the law — a conservatism, in sharp contrast to the urgent activism that the same court has espoused in several other prominent areas including the environment, constitutional amendments, and so on. Second, the very reasoning of the Court has dangerous and sinister implications. The Court’s primarily rationale, in simplified terms, was – since the law under Section 375 is well established, and since the legal machinery is currently familiar with only penile-vaginal penetration as rape, therefore, a change however progressive or sorely needed, cannot be made because it is just too darned inconvenient. Such an escapist explanation defies reason — surely, the mere fact that the existing legal machinery has grown familiar with a grossly inadequate provision of rape law cannot serve as a justification against amendment of the tainted legal provision in perpetuity. For such an argument to be logically countenanced would well imply that jurisprudentially the law is to remain static, ordered, and non-responsive to the changing needs of justice when viewed through the prism of gender. In particular, it would strike a bitter blow at one of the very basic claims of feminist jurisprudence — the need for reconstructing a feminist jurisprudence or a human jurisprudence in light of the inequity of the present patriarchal history, structure, and language of the law.

Clearly, the scenario is set for a crucial test — for how long will the legislature, with or without the tacit support of the nation’s judiciary, continue to blindly uphold a grossly inadequate definition of rape as limited to mere penile-vaginal penetration? For how long will the country’s legislature be squeamish to legitimately respond to the explicit realities of the experiences of victims of sexual assault? The judiciary has abdicated on the urgency of the issue and seems content to let the Legislature take the lead. The politicians and the legislators unfortunately seem to be caught up in other ostensibly weightier matters of national importance. It is vital that this definitional (non)conundrum be convincingly and appropriately answered before we can even begin to consider ourselves as a truly civilised and mature country upholding the rule of law for all people. With this as the status quo, we simply have to keep talking loudly about rape laws in India until the Powers-That-Be react and sensibly respond.

The writer gratefully acknowledges comments and suggestions on the topic from Dr. V.S. Elizabeth, National Law School of India University, Bangalore.

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Misogynistic media

A newspaper report on the recent Gurgaon rape case concludes with the correspondent informing the readers that the victim was hired to “engage with male customers”. How is this piece of information relevant to the public at large? What does it really tell us about the crime? What it does, vaguely though, is describe the victim’s job. Is that relevant to the crime? Not really.

The reporting on the rape cases of the last few weeks has once again highlighted the Indian media’s failure to take into account some critical precautions while covering cases of sexual assault against women. Most crime reporters use the police as sources of information. The police often share a comfortable rapport with journalists who periodically seek them out for news. In private conversations, they possibly divulge more information than necessary. In an interview that I conducted last year with a few senior crime reporters, one senior law correspondent of an English daily admitted, that a good journalist always has more information than a copy needs. It is up to journalists to exercise their discretion, and leave out details that won’t necessarily benefit the story, the reporter added. Sure, the police should not be sharing intimate details of victims. Nevertheless, the media is obligated while reporting cases of sexual assault, to shield the identity of rape victims.

Section 228A of the Indian Penal Code, 1860 prohibits the disclosure, not only of the victim’s name, but also of facts that could lead to the identification of the victim, such as the place of residence, identifying or naming the victim’s family or friends, university, or work details.

The Press Council of India’s Norms of Journalistic Conduct (“the PCI norms”) warn journalists not to give excessive publicity to victims, witnesses, suspects, and accused. The paramount concern in addition to the protection of victims is that, in publishing intimate details of their lives, the media exposes them to unwarranted public scrutiny. This safeguard protects the accused as well. Much of that information fails to add any value, unless it serves a genuine overriding public interest. Such information often obliquely encourages questions about the victim’s character and panders to unhealthy public curiosity. In the T.I.S.S. rape case for instance, the media published details from the victim’s written statement to the police. That information did not serve any public interest.

So, how do the personal details of a victim’s marital status, like in the Gurgaon or Calcutta rape cases, add value to the story? How is it relevant to the crime? The Supreme Court in State of Karnataka v. Puttaraja, warned against the disclosure of the rape victim’s identity even in the printing or publication of judgments issued by the High Courts or the Supreme Court. The Court observed that, “social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated.” Further, the PCI norms prohibit the visual representation or photograph of not just the victim, but also her family or relatives to avoid identification.

Beyond the question of naming victims, the recent media rape narratives also follow a familiar trajectory. The key terms, “married woman”, “unaccompanied in a pub”, and “late at night” come together to the conclusion, “raped”. What does the media narrative of married women alone in pubs at night insinuate? It suggests that the woman was reckless or foolish to be out on her own that late. There is a chauvinist undercurrent in that detail. It invites the response – what was a married woman doing in a bar alone at night? Why was she there?

It offers little insight into the reasons for the crime. Such rape coverage in the media promotes curiosity and interest in the victim’s life. It does not add to our understanding of rape or why it takes place. Instead, it feeds the propagation of the dominant misogynist view, that women like these deserved to be raped.

 

(Sonal Makhija is part of the Research and Consulting team at Rainmaker.)

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