Status of Indian rape laws: The harsh statistics
The persistent growth of sexual atrocities in India has led to the formulation of seemingly uncompromising rape laws. However, increasing number of rapes and decreasing conviction rates paint a contrary picture regarding the efficacy of current rape law. In 2001 16,075 rape cases were reported, which more than doubled to 32,559 in 2017, while the conviction rate of 44.3% in 1973 nearly halved to 27.2% in 2018. The pendency of nearly 133,000 rape cases in courts as of 2018 further supplements this deteriorating situation. In 2018, one woman reported rape every 15 minutes. Unfortunately these represent the tip of the iceberg in a country where a staggering 99% of sexual assault cases remain unreported. These have led India to a notorious prominence in terms of women’s safety. According to a 2018 poll of women’s rights experts by the Thomson Reuters Foundation, out of 193 United Nations member states, India was declared the most dangerous country in the world for women.
The above statistics are distinctively symptomatic of a collapsing rape law. It is also pertinent to analyze the nature of rape law reforms in India. Majority of the reforms were directly influenced by historic mass scale protests due to horrific incidents, thus laying bare the damage controlling nature of these reforms. The latest reform, Criminal Law Amendment Act, 2013 was passed in the aftermath of the appalling Delhi gang rape and murder case(2012) where a female paramedical student was brutally tortured and gang raped in the national capital, Delhi, eventually succumbing to her injuries. It was condemned by the the United Nations Entity for Gender Equality and the Empowerment of Women. Among others the 2013 amendment introduced forcible non penile-vaginal acts as rape under Section 375(d) of the Indian Penal Code(IPC).
In this piece I attempt an ontological exploration of specific judgments through the application of feminist legal theory to uncover the patriarchal roots of rape law and its subsequent failure in India.
The ill-famed judgment: A feeble ‘no’ may mean a ‘yes’?
This case serves as the flag bearer of the patriarchal notions of consent and its adverse effect on rape adjudications.
In Mahmood Farooqui vs State (Govt Of Nct Of Delhi)(2017), the accused allegedly performed forceful oral sex on an American PhD scholar, who was visiting him as part of her academic program. Subsequently, the accused was charged with rape under sec 375(d)(forcible oral sex) of the IPC. The trial court convicted him with seven years rigorous imprisonment. It was then appealed in the Delhi High Court, where he defended that the act was consensual, thus not amounting to rape. During the trial, the victim mentioned that she had unmistakably communicated her non-consent verbally as well as physically. She resisted but failed due to the perpetrator’s superior strength and therefore forcibly submitted out of fear. After hearing both sides, the court declared the prosecutrix a sterling witness, thereby confirming her version of the incident. Coupling this with the settled legal principle that the sole testimony of the prosecutrix in cases of rape is sufficient for conviction (State of Punjab vs. Gurmeet Singh(1996)), the case was headed towards conviction.
However, this was completely reversed in the next part of the judgment leading to the acquittal of the accused. Firstly, it expressed doubt over the happening of the act thereby disregarding the sterling witness’ testimony and digressing from the general legal custom of considering the impeccable evidentiary value of the testimony. Secondly, the court reversed the burden of proof and stated that not only does the victim have to clearly communicate her consent but it is also her responsibility that the accused adequately understands the same. This is not only diagonal to the interpretation of her statement but also disregards her expression of non-consent during the act. It controversially observed that: “Instances of woman behavior are not unknown that a feeble “no” may mean a “yes””. Contradictory to the statutory requirement of ‘unequivocal voluntary agreement’ under Explanation 2 of Section 375, the court interpreted it as ‘unequivocal voluntary disagreement’ without which the default position would be assumed as consensual. It concluded by noting: “when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant.”
This judgment by prioritizing ‘assumed consent’ of the accused synonymized consent with forcible submission and thus, reinforced the male privilege to assume consent based on patriarchal and male dominant perceptions of woman’s behavior. These notions were cemented when the Supreme Court dismissed an appeal by the prosecutrix and declared that the judgment was a “very well decided one”.
Peak of MacKinnon’s Dominance Theory?
Catharine A. MacKinnon, a radical feminist legal scholar, pioneered the dominance theory, a branch of feminist legal theory which believes that the legal system facilitates sex inequality by creating laws through the male perspective. In her book ‘Feminism Unmodified’, MacKinnon views law as a system of power, a system that reinforces the supremacy of men over women. In one of her article, published in Signs she further proposes that the state is male in the feminist sense and that ‘the law sees and treats women the way men see and treat women’(p.644).
These views are echoed by Indian feminist legal scholars who view similar issues within India. Ratna Kapur, a feminist legal scholar, in her seminal work ‘Erotic Justice’ portrays law as a tool for facilitating the exclusion of the ‘world’s ‘Others’(p.2) thereby privileging the male perpetrator.
Consent: The magical line between pleasure and crime
Predominantly rape is conceptualized as a violation of negative sexual autonomy which entitles the individual to exclude any and all unwanted sexual acts(Schulhofer,1998). Thus, sexual acts and rape are delineated through the application of consent theory(MacKinnon,2016,p.442). It infers the sexual act as the byproduct of consent. Law has repeatedly tried to objectify consent in order to set up a mechanical formula to decide rape cases. This includes an objective assessment of the victim’s consent. Thus, the trial to disprove non-consent as the pivotal factor in defending rape charges has led to regressive stereotypes which when infringed by the victim is inferred as consent by the court.
Lois Pineau argues that if the woman’s consent is the central issue, then logically it is her perspective that must control(pp.224-225). Yet, in the Farooqui case we evidence the law prioritizing the man’s perception of the women’s consent. Doctrinally, this means that the man’s perceptions of the woman’s desire determine whether she is deemed violated(MacKinnon,1983,p.653). In a lecture titled ‘A feminist appraisal of politics and law: Consent’ delivered by MacKinnon in 2001, she believes that current rape law has given the accused man the ‘power of reality’ i.e., his perceived reality takes precedence over the victim’s and becomes the legal reality.
The mythical ‘genuine rape victim’
In rape cases, the courts expect and in some cases demand a certain degree of behavioral conformity from the rape survivors. Such expectations are replete with male dominant perceptions of rape and have given rise to the stereotyping of the ‘genuine rape victim’(Larcombe,2002). Flavia Agnes, a feminist activist and lawyer believes that in order to signify her non-consent, the victim has to comply with these expectations of the court to fit the ‘ideal’ characterization. Such objectionable demands have generated certain criterions without which justice cannot be accessed by the victims. In a Feminist Legal Studies article, Kim Stevenson notes that: “No other crime has attracted so many myths and stereotypical images as those associated with the ‘genuine rape victim.’” Thus, Agnes’ and Stevenson’s observations highlight the patriarchal causal factor behind such propagation of myths in the justice system and the consequence of subconsciously normalizing it through consistent legitimization of its existence. The multitude of case laws whose adjudication are affected due to these myths serve as the evidence of stereotypical characterization of a rape victim rather than acknowledging the individualistic responses.
Any form of behavioral deviance to these myths result in the court counter-assuming that the victim had consented. Until a 2002 amendment, Victorian moralism driven evidence of general immoral character was a defense for rape(Section 155(4) of Indian Evidence Act). Previously the courts required that women “resist to the utmost” even to the point of death or grievous bodily injury i.e., endangering her safety beyond the implications of the sexual assault to demonstrate her non-consent. Even though India has formally abandoned a resistance standard in favor of consent through statutory prohibition(Sec.375,IPC), these stereotypes continue to inform rape adjudication. The patriarchal undercurrents are so strong that they have overtly defied rape law reforms. In Rajesh vs State of Rajasthan(2017) the court stated that: “The medical evidence did not indicate any injury on her body which suggested she was never subjected to any forcible rape”. There are multiple similarly deplorable requirements like the mode of asking for help during the act. In Pratap Misra vs The State of Orissa(1977), the court ruled that she must have consented since she had only sobbed and not screamed.
These judgments exhibit the court’s insensitivity towards the psychological effect of rape on the victims. During trials, the victim’s behavior during the act is placed under the microscope by the defense, which is fully in consonance with the fundamental principle of criminal justice i.e., right of the accused to free and fair trial. However, when the judiciary takes orthodox and patriarchal stances while interpreting the law, it fundamentally adheres to the gendered stereotypes and passively facilitates the rape myths. In this process the judiciary as seen in the above highlighted cases has clearly suppressed the psychological angle of this heinous crime and consequently, considers divergent behavior as dubious while inherently ignoring the extraordinary circumstances of the act and the post-incident mental state of the victim.
In 1974 psychiatrist Ann Wolbert Burgess and sociologist Lynda Lytle Holmstrom first developed the theory of Rape Trauma Syndrome (RTS). In RTS the victim experiences severe psychological trauma which manifests in the form of disruption of normal, physical, emotional, cognitive and interpersonal behavior. In most cases the victim’s experience “traumatic infantilism” which can be described as situations where the most common behavior of resistance is suspended in order to ensure self-preservation (Symonds,1976). However, the courts’ delegitimizing of deviant responses invalidates individual coping mechanisms. The effect of these can be can be elaborately witnessed in the book ‘Discretion, Discrimination and The Rule of Law: Reforming Rape Sentencing in India’ authored by Mrinal Satish which examines 25 years of rape jurisprudence comprising of nearly 800 cases from 1984-2009. It remarks that rape adjudication and sentencing are heavily influenced by such stereotypes despite multiple rape law reforms.
Power theory and gender justice
Singular focus on consent theory has essentially internalized patriarchal rape adjudication. Due to male perceptions of rape and consent, women’s sense of injury and her say in violations of her sexual autonomy has been systematically suppressed(MacKinnon,1983).
The proposed corrective model to this can be found in MacKinnon’s ‘Rape Redefined’ which conceptualizes power theory in rape as a notion of the prevailing power asymmetry where the accused uses forms of dominance to achieve forcible submission(pp.440-443). This considers how the ends are achieved contrary to consent theory which interprets consent as the cause of the sexual act and not the violence. Critically engaging with the circumstances under which choices are made are of paramount importance(Kelly,1987; Munro,2010). Accordingly, in ‘Towards a feminist theory of state’ MacKinnon proposes that “Lack of consent is redundant and should not be a separate element of the crime”(p.245). She conclusively notes that ‘Force is present because consent is absent’, thereby establishing the fatal shortcoming of the consent theory(p.172). Thus, Rape is redefined in gender equality terms by eliminating consent, an intrinsically unequal concept, and reconceiving force to include inequalities.
However, Mackinnon’s work regarding rape laws has also faced criticism from feminists who say that her work mainly revolves around women’s victimisation and promotes a “victim culture” (Roiphe,1993). She has also faced criticism for her allegedly essentialist or reductionist tones of her writing which attempt to explain a plethora of social inequalities with the use of a single gendered concept (Abrams,1989).
Oppressor to liberator: Towards a metamorphosis in law
The patriarchal tones of the judiciary reached its tide in the recent case of Rakesh B vs State of Karnataka (June 22nd,2020). When the rape victim was tired after the act and fell asleep, the court outrageously commented: “That is not the way our women react when ravished”. Eventually, after public outrage over these severely misogynistic comments, the court was forced to expunge them. However, the paternalistic tone of such judgements is clear evidence of the thriving stereotypes of the ‘genuine rape victim’ and the crumbling rape law reforms and ultimately, the rape law. ‘Engendering Law: Essays in Honour of Lotika Sarkar’ correctly notes that: “Despite the seemingly neutral terms in which legislative provisions are framed, a close reading reveals the deeply patriarchal nature of law that draws on gendered assumptions regarding femininity and sexuality.” (Dhanda & Parashar, 2007) Thus, it is long-overdue for India to recognize the failure of its rape law and strive towards gender justice to prevent the meteoric sexual atrocities towards women. There is a dire need for a radical shift in the Indian rape jurisprudence, since it is up to the brim with judgments which not only cement the gendered views of the judiciary but also serve as a repository of legitimized and legally accepted interpretational acrobatics which harm rape adjudications on a daily basis due to its precedential value.