Rape Laws: Blind or Biased?

The Bandit Queen: Phoolan Devi was exposed from an early age to the lust and brutality of some men. She was married to a man her father’s age. Not only did he beat her up, he raped her repeatedly. Later she was accused of luring young upper caste boys and thrown out of the village. She suffered through countless heinous crimes committed against her by dacoits and Thakurs alike. Unable to fight back, she was arrested by the police and subjected to further humiliation. She was stripped naked and paraded in front of the entire village. Do I need to say anything more to expose the apathy of our society? It existed then and it exists now. And this is just one of the cases…it will take all my life to talk about the rest of them.

Why is it that we as a society are so insensitive to a rape victim? Why are they treated as if they are the criminals and not the victims? Why are the laws biased against them? Don’t believe me? Read on.

To quote from the Indian Penal Code:

 As per Section 375 of IPC a man is said to commit the offence of rape with a woman under the following six circumstances: 

1.       Sexual intercourse against the victims will, 

2.       Without the victims consent, 

3.       With her consent, when her consent has been obtained by putting her or any person that she may be interested in fear of death or hurt, 

4.       With her consent, when the man knows that he is not her husband, 

5.       With her consent, when at the time of giving such consent she was intoxicated, or is suffering from unsoundness of mind and does not understand the nature and consequences of that to which she gives consent, 

6.       With or without her consent when she is under sixteen years of age. 

All in all, the onus of proving the charge lies solely on the victim.

Take point 1. Technically, only penal penetration amounts to rape. What do you call it if a woman is forced to perform oral sex? Or if she is penetrated by other objects, say digits? Is that something less than rape? If not, then why is only sexual intercourse taken into account?

Point 2: How is the victim ever supposed to prove that she did not consent to it? There can be no legal papers documenting that. In cases of rape, often there are no eye witnesses to testify. It is not the movies, where the lead manages to find a video of the entire event. Rape doesn’t happen under CCTV surveillance.

A similar argument can be put forth for the rest of the arguments. How is she supposed to prove it after all? 

Point 6, however, really caught my eye.  Technically a minor girl’s consent for sex is not valid. It is thought that they cannot and do not recognize the gravity of the act. When a girl turns major at eighteen…how does her consent at sixteen come into the question? Loopholes…

A similar problem arises in cases under marital rape. Officially, a man cannot rape his wife if she is above sixteen years of age. How can you have a wife with that age in the first place? Isn’t that a crime in itself? Girls in India can marry only after they turn eighteen. Moreover, is there any sane reason behind why a man cannot rape his wife? I do not think that marrying her automatically gives him a right over her. Is she a commodity he bought in the market? I do not think the Constitution allows that.  Does getting married shifts the ownership of my own body?

Marital rapes are not the only problem. Child and Custodial rape also occur frequently. Both are equally difficult to solve. In one the victim is often too scared to come forth, in the other, she has no proof. For custodial rape I have just one question. Will a woman not ‘consent’ to sex if you beat her up and put a gun to her head? If you torture her to the extent that she cannot differentiate between dream and reality?

 It is a well-known fact that the determination of rape becomes difficult with each passing day. After the first 24 hours, it is almost impossible. For those brave enough to file a complaint within this time, a medical test is conducted. The doctor examines the victim under various heads: Condition of her clothes, external injuries, nail clippings, bruises, taking blood samples. And then they conduct the ‘Two Finger Test’ (In India). Yes, it is as horrible as it sounds. A doctor pushes in two fingers to try and determine the state of her hymen, whether it is ruptured or not. He/she also tries to determine if the ‘victim’ has had prior sexual experiences. If the vagina is found to be ‘roomy’, she is accused of having an active sex life. This report then becomes the primary source of her decline.

The lawyers shove it in the face of the judge. If the victim is not married and is classified as roomy, she is declared to be of loose character. The entire proceeding turns into an attempt of character assassination.  If she is not married and ‘tight’, definitely a crime has been committed. But how do a woman’s past sexual experiences come into play here? If she has had it once, doesn’t mean she is an open booth, to be used by anyone. She might do it with ten different men of her own free will but no man should ever have the right to make her do it by force.

Moreover, the two finger test is an altogether unnecessary and avoidable test. It proves next to nothing and adds to the trauma of the victim. Is it not like going through it all over again? If done without permission, it is in fact a form of sexual assault. Why do we follow such primitive methods when most of the developed countries have done away with it? What is more…even our government has issued notices banning this test. But it is still the primary test on which the entire investigation report is based. And all it needs to get these reports altered is a little money and muscle power.

Why does our attitude change towards a rape victim? Do we ever accuse the victim of murder of asking for it? Then why do we think that a rape victim might have done so? How is she different? Why is she made to stand in courtrooms and raped over and over again by the system? Why does she have to relive each painful moment a million times? Was once not enough for this pervert system?

It is often said that the law is blind. For rape victims, it certainly is; blind to their suffering, their pain and biased against them. Probably a better title would've been 'Rape Laws: Blind AND Biased'. Right?

We really need a faster process which ensures justice to the wronged. Along the way, we need to sensitize all those involved; the doctors, the policemen, judges, lawyers…

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

Each of the above points stands valid. I couldn’t have agreed more. It is time we changed our attitude towards rape victims. They need a shoulder to cry on, a hand to wipe their tears and a friend to support them as they wage a war against their offenders. They do not need to prove anything about their character, it is us, as a society, who needs a character certificate. Are we up for it?