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.
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.
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.
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.
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.”
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.
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.
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)