The history of rape laws in most parts of the world goes back to the treatment of rape as a property crime against a woman’s father till the time she was unmarried, and against her husband after she got married.[i] Subsequently too, in seventeenth-century England, Sir Matthew Hale seems to give a ‘perfect idea of rape’ that could have been believed to have occurred. The complaint was prompt, the victim did not have a past sexual history and there were injuries on her body caused by the rape.[ii] There was nothing worse than rape, not even death, for it defiled women.[iii] Of course, we’ve come far from that, but haven’t got rid of the remnants of it in the form of victim-blaming in rape cases. It’s shameful because we’re no longer a regressive society, and we’ve discovered long back that human dignity is important; that stereotyping is bad and the victims need to be helped, not re-victimized.
We’ve traversed a long way from Tukaram[iv] to Farooqui[v], seen crucial amendments in the rape law, huge outcries over sexual offences and so much more. A common streak running through most of the judgments during this period has been the persistent gendered reflection in them. So whether it’s Bharwada[vi] in 80s where the court thought that the experience of rape is quite stigmatic for the victim or it’s Farooqui where ‘a feeble no’ by a woman was considered a ‘yes’, whether there has been a significant change at all in how the criminal justice system sees the crime of rape is uncertain. For example, one would wonder as to what is meaning of the expression “academically proficient” which is stressed quite a bit by the court in Mahmood Farooqui vs. State (the phrase has been used both for the victim and the accused). Possibly that an educated woman would not merely give a ‘feeble no’, but would ‘use her brains to resist the perpetrator at any cost’ and maybe that this becomes more necessary in cases where the woman happens to know the accused, because that puts her right into the frame of a perfect victim? But also, interestingly, the court clearly denies that the victim is not supposed to fit into any ‘archaic stereotype', but nevertheless perpetuates the myth of how when a woman says ‘no’ feebly, it might as well mean a ‘yes’. Perhaps, women, “even when not intentionally dishonest, they simply cannot be trusted to know what they want or mean what they say.”[vii]
Apparently, the law of rape protects the sexual autonomy of the women, or more so because we’re being told that it does, it is hard to believe that the old morality still dictates us in the matters of sexual offences. Just consider the concept of consent as it exists. The requirement of the consent standard is not only that the woman denies it, but also that it is duly conveyed to the man. That sounds quite fair until it only becomes a matter of whether the man thought the woman consented or not, and that somewhat guides the adjudication in rape cases where the accused is a known person. In Farooqui, the court looked into the manner in which non-consent was communicated to the accused, and believed that it was really difficult for the accused to ascertain what she wanted. An ideal situation, it seems, would have been the one where the woman slapped the accused and tried to run away, or shouted for help, or went to file an FIR straightaway. This exclusively performative consent standard totally ignores the surrounding factors when such an event occurs.[viii] So if the victim in this case remembered the Nirbhaya incident, and went along with the act in fear, it would be absurd to call it consensual. In this scenario, the present standard of consent becomes problematic, because the law will only protect you if you were put in an ‘actual’ danger, and pay utter disregard to what ‘you thought’ was non-consent; a situation which would have been considered had sexual autonomy really existed for women . But if a ‘no’ means ‘no’, or a ‘feeble no’ is yes, then a ‘yes’ might also mean a ‘no’. Whose perception of consent, then, is understood as consent? Is it what a woman thinks, or what a man believes? If the situation is indeed ideal, where the system isn’t sexist at all, what does a marital rape exemption mean? Or where girls under eighteen consent to a sexual act, it is illegal irrespective of her consent? Or even how sodomy remains criminalized in a society that recognizes autonomy of any sort? So if indeed the rape law is meant to protect a woman’s control over her sexuality, the existence of these exceptions is questionable.[ix] Consider other crimes against the body like assault, which is assault irrespective of the consent, or criminal trespass, where the victim is supposed to put a sufficient warning to show his non-consent, which remains criminal trespass thereafter.[x] But for rape, the dynamics of the concept suddenly change, signifying that from here, this becomes more of an issue about sexual bigotry than sexual autonomy. In a patriarchal set up, the idea of consent is not simple at all. And if at all our sexual autonomy remains unprotected, the discontent around Farooqui, Jindal[xi] and others is just futile.
Fitting into the ‘right’ frame?
This is best explained by Rayburn (2006)[xii] where he analogizes a rape trial with theatre where the victim and the accused play various parts at every stage of the trial. Based on the accuser’s[xiii] ‘portrayal’ of her gender role, the jury in the course of the trial decides whether she’s of promiscuous character; or an “innocent Madonna” who’s an ‘inexperienced’ and ‘pure’ woman which might lead to a successful conviction.[xiv] He discusses an instance of John F. Kennedy’s nephew being charged with rape, and the huge role that media played in portraying him as a “respectable doctor from a good family”, and the victim being a gold-digger, leading to his acquittal.[xv] It would all make sense if one understood how in Farooqui, being ‘academically proficient’ and respectable worked out for the accused. In the said case, there’s an elaborate and a not at all subtle discussion about the victim’s lifestyle and the fact that she goes to a club straight after the incident by the defense. The court however, takes a strong stance against this and categorically states that it will in no circumstance, consider these propositions to be of any evidentiary value, obviously being prohibited by law.[xvi] Prior to the amendment in 2003, the most important tool for the defense to discredit the victim’s trustworthiness was to show that she was of an immoral character. But a major portion of the defense’s arguments in most of the cases where the parties were acquaintances, places reliance on the victim’s character in general, Farooqui not being an exception.[xvii] Since the law of evidence in India does not allow such statements to be made in the court of law, or be of any consideration, so ultimately the reflection of it is shown on the sentence awarded to the accused. (One can think of the Jindal rape case in this regard!)
The situation presents a conflict of traditional ideas of female chastity and specified gender roles with the globalizing world, where a woman tries to break free from the fetters of regressive perceptions about modernity in our society. She has to as a consequence, struggle to remain safe in the world which meets her free spirit with a strong resistance. Therefore, when a judge stresses upon the sanctity of ‘chastity’, the victim needs to fit in that costume of an ideal victim, and if she does not, she’s likely to be disbelieved. The problem with the courts’ incessant use of these myths is that it takes the shape of prescriptive stereotyping, where these myths are officially stamped by an authority, and are likely to be used in future judgments by different courts across the country as well. In one of the cases[xviii], the court placed stress on the ‘marriageability’ of the victim being affected, as she was losing out on the prospects of ‘getting married in a respectable family’. This consistent perpetuation of stereotypes relating to a woman’s honor, shame associated with the crime of rape and chastity being a ‘virtue’ has heavily influenced the public perception about offences against women and the victims of such crimes. So much so, that these conventional gender roles have become the social norms affecting adjudication in rape cases. In most of the cases of rape by a known person, the court is seen making a distinct observation as to whether the victim had known the rapist prior to the incident. While this might be relevant to some extent for evidence purposes, it is mostly done to infer the possibility of the woman consenting to that act.[xix] It’s important to realise that while legal reforms keep happening, the need for attitudinal change should not be kept on the back-burner. There are no training sessions required to understand a victim of rape as a victim of a grave crime, and nothing else. The stereotypes about women in general have become so entrenched, that it is casual to blame and shame the victim, even by the ones who sit in the police stations and courts to deliver and promote justice. The judgements discussed in this piece are not sufficient to give a detailed perspective of the courts in India in this regard, but the overview itself is really appalling. The legal system, perhaps, gets desensitized seeing the recurring instances and as such, the process has somewhat become mechanical. However, the victim who approaches the system for justice, would normally except to be understood, or atleast not be shamed or blamed for her condition. There is a certain degree of empathy required from the criminal justice system to facilitate a victim of rape, or at least make it possible for her to understand and trust the system, throughout the process. As much as I would like to abstain from the rhetoric, attitudinal change is the precursor to victim justice. A system which does not recognise a victim of rape in a similar way it does to the victims of other crimes, will never sympathize with her. It’s not that there is something peculiar about rape, it is how the crime is treated differently by the system, and the victims of such crimes humiliated and disbelieved. I conclude that the situation after the Nirbhaya rape case hasn’t changed much, probably because it was never really about the law reforms only. It was and is, essentially about how we as a society (which includes the legal machinery) perceive a victim of rape. Unfortunately, law books do not teach us that. There have been quite a few suggestions on this issue which include victim-support centres, specialised training of the police, and an effective redressal mechanism wherein the victim can complain about the attitude of the personnel. But as the root cause lies in the stereotyping of women in general, and the victim of rape thereafter, these suggestions would be helpful only to an extent. Progressive laws and regressive perceptions are adversaries. They cannot, and must not, go together.
[i]Nicholas J. Little, “From No Means No to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape Law”, 58 Vand. L. Rev. 1321, 1364 (2005). Available at http://heinonline.org/HOL/Page?handle=hein.journals/vanlr58&div=36&id=&page=&collection=journals . Last visited on 22-11-17.
[ii] Elizabeth Kolsky, ‘The Body Evidencing the Crime’: Rape on Trial in Colonial India, 1860–1947 (2010). Gender & History, 22: 109–130. Available at http://onlinelibrary.wiley.com/doi/10.1111/j.1468-0424.2009.01581.x/abstract Last visited on 23-11-17
[iii]Jed Rubenfeld, “The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy”. Yale L.J. 122. 1372-1443 (2013). Available at https://www.yalelawjournal.org/article/the-riddle-of-rape-by-deception-and-the-myth-of-sexual-autonomy . Last visited on 29-11-17.
[iv] Tukaram v. State of Maharashtra, (1979) 2 SCC 143
[v] Mahmood Farooqui v. State (Govt of NCT of Delhi)
[vi] Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217
[vii] Susan Estrich, “Rape”, 95 Yale L.J. 1087, 1184 (1986). Available at http://heinonline.org/HOL/Page?handle=hein.journals/ylr95&div=57&start_page=1087&collection=journals&set_as_cursor=1&men_tab=srchresults . Last visited on 12-2-18.
[viii] Rebecca Whisnant "Feminist Perspectives on Rape", The Stanford Encyclopedia of Philosophy (Fall 2017 Edition), Edward N. Zalta (ed.). Available at https://plato.stanford.edu/archives/fall2017/entries/feminism-rape/ . Last visited on 12-2-18.
[ix] See Catherine Mackinnon, “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence”, Chicago L.J, 8, No. 4, 635-658 (summer, 1983). Available at JSTOR, www.jstor.org/stable/3173687.
[x] Ibid, pg. 649. Also, see Susan Estrich, Rape, 95 Yale L.J. 1087, 1184 (1986).
[xi] Vikas Garg vs. State of Haryana.
[xii] Yung, Corey Rayburn, To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials. Columbia Journal of Gender and Law, Vol. 15, p. 436 (2006). Available at SSRN: https://ssrn.com/abstract=889087 . Last visited on 12-2-18.
[xiii] Ibid, pg. 437. Rayburn uses the term “accuser” in lieu of ‘victim’ to indicate the role of the complainant woman as an active accuser, and not a mere spectator. At this instance, the “active rapist” becomes a passive party who is supposed to defend himself. This reversal of roles is an important indicator of how adjudication in rape cases is different from how it happens in other offences.
[xiv] Ibid, pg. 438.
[xv] Ibid, pg. 439
[xvi] Section 155(4) of the Indian Evidence Act, prior to its repeal in 2003, allowed for past sexual history of the victim to be discussed in the court to discredit her trustworthiness. After 2013 amendment, a proviso has also been added to section 146 of the said Act which now even disallows questions of any sort questions in the cross-examination which to prove that the victim is of immoral character, in sexual offences.
[xvii] See Vikas Garg vs. State of Haryana
[xviii] Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204
[xix] Tikaram vs. State of M.P (2010), legalcrystal.com/913386. Available at https://www.legalcrystal.com/case/913386/tikaram-vs-state-madhya-pradesh . Last visited on 3-12-2017
Mehak Bajpai is pursuing LL.M from National Law University Delhi. E-mail : [email protected] / [email protected]
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]