Changes in Rape Law: How far will they help? – Anuradha Ghandy

There’s nothing new about women being raped. It’s been happening for years.-Defense Minister, George Fernandez, during the Gujarat debate in Parliament. (2003)

While this callous dismissal of the most heinous crime against women is outrageous, it is also representative of the general attitude towards rape of society, of the state, of the powers that be. Throughout the ages, from the era of slavery, through feudalism, capitalism, down to the present era of imperialism, there has been an unwritten support of the belief that women can and should be taken by force. From the inception of class society and patriarchy, rape has not only been a weapon to ‘show women their place, but has also been used to teach an entire community a lesson, as an instrument of political mobilization, to instigate a community into armed conflict, as repression against social movements, as an act of aggression on the enemy in war. What an irony, that while women have had little or no say in the decision making processes of change, it is they who should be at the receiving end… have their bodies brutalized, their minds shattered. Due to the pressure of the growing women’s movement, changes have been made in the rape laws, rape crisis centres set up, and there have been some attitudinal changes in the media in imperialist countries. Yet, the number of rapes taking place in those countries (more get reported) continue to be high, showing that rape is an integral part of the system of patriarchy and class exploitation.

Recently, rape laws have again come in for revision. The Law Commission has placed its recommendations, some of which have come into force. The recent case of a college student of the Maulana Azad Medical College in Delhi being raped in broad daylight in the heart of the city, sent shock waves throughout the country. Once again, the Home Minister, L.K. Advani, playing to the gallery, began clamouring for the death penalty for rapists while George Fernandes swung to the other extreme of his previous statement declaring that rapists should be shot. The women’s movement, however, has reacted sharply to this arguing that awarding the death sentence can hardly be the solution. We have seen that the higher the punishment to be awarded, the fewer the cases of conviction that take place. Where the conviction rate is so low, this will surely not help. Some are apprehensive that more women will be murdered after rape since the penalty for both may be death. Besides, the linking of the act of rape with that of murder, as the BJP is doing, further reinforces the feudal views that a woman raped is as good a dead and has nothing to live for.

Instead of the death penalty, it is procedural and attitudinal changes that are called for. Yet, it is most ironic that, in India, we had been following a rape law drafted by the British in 1860, an even after the transfer of power had not changed it, while British themselves had modernized their own rape laws. It was only after the Mathura rape case and the growth of the women’s movement in India that the rape laws were changed tor the first time in 1983. A minimum punishment of 5 years was fixed and, cases of custodial rape, the onus of proving his innocence was put on the accused. Now, the Law Commission, in 2002, has made various recommendations for changes: the sections pertaining to cross-examination have been amended so that the victim’s character is not taken into consideration and the necessity of previous character does not become a factor going against the victim.

However, to understand the laws and proposed changes it is necessary to examine the politics of rape and the manifestations of patriarchy through it. Besides, in spite ot the law and the supposed concern for women s safety by the state, the National Crime Research Bureau’s figures indicate that the incidence of rape has increased from 15,350 in 1997 to 16,496 in 2000. Yet, according to Veena Goswami, legal advisor to the Delhi Commission of Women, only 20 percent of rape cases are reported. About 30 percent of the victims get pressurized into withdrawing the complaint. Some rape cases take 10 to 15 years in court and only about 4 percent of rape victims get justice.

RAPE, THROUGH THE AGES

Let us examine how rape was used as a weapon ot subjugation in ancient Indian and medieval feudal society. The booklet published by PUCL & DR, called Rape, Society and State, breaks the myth, much propagated by today’s Hindutva forces, that women in ancient lndia enjoyed high status. The fact remains that at no stage of her life did a woman enjoy independence-man was her master and exercised his right either to make his wite cohabit with whomsoever he chose, to get a son, as the impotent Pandu did his two wives, or gamble her away as Dharamra Yudhishthir did to Draupadi or to throw her out of his kingdom as the ‘great’ lord Rama did to Sita. Even in the Rig Veda, the concept of a woman’s usefulness centres on her sexuality. After creating man, the ‘great’ Prajapati ‘lord of all creatures’, created woman:

Come, let me provide him with a firm basis! So he created woman. When he had created her he revered her trom below. Therefore one should revere woman below-He stretched out for himself the stone that projects. With that he impregnated her. (Brhadaranyak Upanishad, Brahmana IV, ii)

That rape was not merely permitted but encouraged is clear from the verse that follows. Should a woman not yield despite flattery and bribes the man is advised that: ‘he should hit her with a stick or with his hand and overcome her, saying “with power, with glory I take away your glory”.’ Thus, she becomes inglorious. No stigma was attached to the rapist. Thus, the great preceptor of the gods Brhaspati, suffered no punishment tor raping a married woman – the punishment fell on her child who was born blind.

The same importance given to honour and the defilement of a woman’s purity, as an instrument of demeaning the name of a family, is seen in European feudalism. In fact, the word ‘rape’ itself comes from the French verb ‘raper: to steal. While sexual assault is a big act of aggression on a woman’s body and mind, the word does not connote this violent attack on her rights regarding her sexuality, but, rather, gives importance to her honour being stolen from her. And, here too, it is not her honour that society early law, the punishment for rape was higher if the victim was married and less if she was single! Linking up history with the present situation in India today, one could only conclude: how well are the forces of Hindutva reviving our ‘glorious’ past! How sincerely have they emulated the gods in words and deeds in the carnage against Muslims in Gujarat! The law, even to this day, is framed in such a way that instead of the accused, it is the rape victim who has to indirectly, prove her innocence. It is the only criminal law where the crime rubs off on the victim. The victim is twice victimized.

To understand the demands for changes in the rape laws we must first understand how rape is used as an instrument ot aggression and repression. Firstly, as Engels has pointed out in Family, Private Property and the State, the oppression of women was institutionalized after the growth of private property and class society. The institution of family was one of the chief institutions to spread and maintain patriarchy. As Engels points out, in order to pass on the property of the husband to his lawful heirs, various restrictions were placed on women’s sexuality. The purdah, burqua or veil, the various social norms restricting the freedom and independence of women, are related to this. Reducing women to bondage and slavery helped appropriate their labour but also helped preserve patriarchy. Thus, in ‘genteel’ society or the landed classes, a woman was the exclusive property of her family and to be looked upon by other men was a dishonour to the family. In the days of ‘chivalry’, it was the duty of the men of the clan or community to protect the honour of their women and an affront on their women folk was a call to arms, from private duels to family feuds and wars. Honour was so important that women would commit suicide or sati to save it; fathers would kill their daughters to preserve it. Many of these feudal norms are prevalent in today’s semi-feudal semi-colonial societies and their hangover lingers on in the advanced capitalist societies.

With the advent of class society and patriarchy, the state that arose defended this inequality and exploitation. We all know how, in the days of early law formulation, the punishment for the murder of a member of the propertied class was higher than if a plebian was murdered. That is, the background of the victim of murder was taken into consideration. While, even today, the same attitude prevails in society in an unwritten manner, it is almost a written or regular aspect of the rape law- questions are asked about the background of the victim. While it should not legally or otherwise matter whether the raped woman is a prostitute or a woman of good virtue, attempts are made to malign the character of the woman to show that there was consent on her part to the sexual act. As patriarchy developed in society, various social norms were developed to condone the crimes of men against women, in fact, to transfer the blame onto the women themselves. For instance, wife beating was and is still justified in society. Any woman questioning any wrong act of her husband or his family is dealt with violence, physical or verbal. The code of Manu, in ancient India, warns the man against the seductive and immoral nature of a woman, putting the blame on her for the man’s sexual escapades, so much so that even today the wife blames the ‘mistress’ for her husband’s extra-marital affairs. In the same vein, sexual aggression on women is approached with the attitude, ‘She asked for it.’ A woman must have dressed in a particular way, chosen to travel alone, to go out to work or do something that provoked the man to rape her. It is this attitude that prevails in society that needs to be changed before we can expect any significant changes in law and justice. It is precisely this attitude that dominates the state, the judiciary, the armed forces and the police machinery and the media. In other words, changes in the law will be purely cosmetic ones unless there is a revolutionary change in society and people’s thinking, else rape wil continue to be used as a weapon of repression and subjugation.

RAPE AS SUBJUGATION

Rape is the kind of violence that has manifold effects on a victim and can damage her psyche so badly that it may lead to suicide. After suffering the physical brutality of the act, often committed in a sadistic way, the woman has to go through the emotional trauma. This trauma is magnified due to social attitudes that discourage women to speak out and fight against rape, that point fingers at her as if she is the criminal rather than a victim. Traditional culture depicts the raped woman as one doomed for life, having no other option than prostitution or suicide. In fact, the same report, referred to above, says that a survey conducted by the Indian Housewives Federation (in the 1970s) shows that 80 percent of the women entered into the institution of prostitution, at the first instance, as rape victims. An unmarried victim may never even get married. The stigma attached is so strong that not only do women hesitate to come forward and report cases a fight for justice through the courts, they themselves feel that they are defiled, spoilt, ‘fallen’. Fortunately, some of these attitudes in women are seen to be changing as more and more women are speaking out. This was observed when fact-finding teams visited

Gujarat and the innumerable rape victims from a traditional Muslim background took the courage to describe in detail the experiences and wanted to fight for justice.

Behind the innumerable cases of rape, which are considered to be instances or uncontrolled lust on the part of the rapist, lies a psyche that women are to be seen as sex objects, their reason for existence is to satisfy the sexual desires ot men and to give birth to children. Identifying women only in their sexual and reproductive roles is the kind of social conditioning both men and women grow up with. This is useful for the ruling classes, as the value of women’s contribution to the workforce through the reproductive function remains under-rated. Treating them as sex objects helps in keeping one half of the population subjugated. A large number of rapes occur within the family or extended family, by neighbours, with children, with dependent girls and widows, within insecure and exploitative work relations. They also, largely, occur due to efforts by males at asserting, establishing, and reaffirming their power in the gender struggle. Degenerate social and cultural trends, due to the prevalence of feudal culture and the growth of imperialist penetration, have been increasing sexual violence against women. Due to the commodification of women in the media, in the beauty, fashion, entertainment and tourism industries, women and girls are becoming more and more vulnerable to sexual violence.

Rape is used as an instrument of maintaining class, caste, racial and ethnic distinctions and hierarchy. While this has been going on from the time of slave society, we can see that even in the era of modern slavery in America, black women were easily raped, due to the notions of racist supremacy and also to keep the entire community in bondage. In India, in parts of Bihar and Telengana, the landlord maintained the right to be the first to sleep with the newly-wed bride of the lower castes and landless peasants. In Maharashtra and other places, the Devadasi system leads to young girls being offered to the priests of the temples as prostitutes due to blind faith and poverty. Other girls from lower castes have traditionally been singers and dancers who work as prostitutes in rural areas. Thus, the women folk of the rural poor and the Dalits are considered common property. Raping them is condoned by society and the state turns a blind eye. In areas of development projects, tribal girls are lured and raped by the non-tribal contractors who come there to work. In areas of work, poor women labourers, single women, destitute women, domestic workers, sometimes even health workers in rural areas, are raped with the knowledge that the class background of the rapist will save him from punishment, while that of the victim will deprive her from justice.

Rape is used as a method of the assertion of political power over a community, caste, or the poor in general. The police, the bureaucrats and the feudal lords in backward areas, rape womenfolk with impunity. Upper-caste elites use rape to humiliate an increasingly assertive Dalit community or to suppress the growing assertion of women. Custodial rape is widely prevalent, with the police humiliating those under arrest. ln areas of class conflict, the army, para-military and police forces routinely rape and humiliate the womenfolk of those fighting for justice. This was to be seen during the Vietnam War, in Bosnia and in Africa, among other places. In India, it is to be seen in Kashmir, the North East, and in the Telangana and Naxalite movements. Even in non-violent movements, like the one against the Narmada dam, women have been raped.

Today, with the onslaught of Hindutva forces against the minorities, hundreds of minority women have been raped and killed with the backing of the state, in Gujarat. Even before this, during communal riots, women have been raped to teach a lesson to a community, or to instigate another community to fight. Thus, nuns were raped in Jhabua, Madhya Pradesh to teach Christian missionaries a lesson; while Dalit women are raped to warn the community against asking for self-respect.

RAPE AND THE LAW

Moving on to the existing laws against rape, let us first confront the biggest irony: Who is it that fights for the rape victim against the accused? None other than the state, one of the greatest perpetrators of violence against women, whose aim is to maintain the status quo of patriarchy. Although it gives the semblance of a welfare state, one that owns the responsibility of meting out justice to the wronged woman, as such, she has no real voice in fighting out her case. The rape victim is only a mere witness in her own case. Her fate depends on the mercy of the police, who did the panchanama, the public prosecutor, a government servant, the judge, another representative ot the state, whose minds are filled with class, caste and patriarchal biases and pockets filled with unaccounted money.

We can next examine the various loopholes in the law, which account for the low conviction rate in rape cases. Firstly, what constitutes the crime of rape according to the law? According to Section 375 of the lndian Penal Code, rape is committed when a man has sexual intercourse with a woman against her will or without her consent. Given the patriarchal biases of the judiciary and other wings of the state apparatus, which invariably brands a victim as ‘loose’, ‘provocatively dressed’, etc., this clause acts as a convenient loophole to let off the culprit.

The normal punishment for rape is a minimum 7 to 10 years imprisonment and the maximum is life imprisonment and a fine. The court has the power to impose a sentence for less than the minimum. To do this, it must explain the special reasons for giving lighter punishment in its judgment. Needless to say, the courts Jump at any opportunity to do so! Either the rapist is condoned for being too old or too young, fearing that his future life may be spoilt, or because he is the sole breadwinner and his family has to be considered, and so on. The law provides tor stricter punishment, i.e. rigorous imprisonment for 10 years or life, plus a fine, under the various circumstances of custodial rape, charge of the rape of a pregnant woman, a girl under 12 and gang rape. Even in these special cases, the court has the right to award lighter punishment while giving adequate reasons. Section 354 of the IPC deals with outraging the modesty of a woman, which is a cognizable, bailable offence with punishment up to two years.

The plea of the defence is based around proving that the intercourse was not against her will. The victim’s word, that she did not give consent, is not considered valid (except in the case of custodial and child rape). While an act like rape can have no eyewitnesses, the victim has to prove that she had raised an alarm and put up a tremendous struggle. The attitude of the judges, as reflected in the judgments, are material for black humour, for, sometimes, a judge considers the lack of injuries on the body as willingness, while in another case, the detailed description of resistance written out by a victim was considered too detailed to be true.

Thus, ten years after the changes that had taken place in 1983, began another campaign for changes in the rape law. In the last five years, the numerous workshops held by women’s groups, legal aid centres and women lawyers have led to some proposals for changes. These proposals have been given to the Law Commission (LCI) who have, in turn, given their recommendations to the authorities. These recommendations were the outcome of a legal battle waged since 1994 by an NGO named Sakshi in New Delhi, in dealing with the sexual abuse of an eight-year old minor at the hands of her father, a government employee. In the course of the case, the Supreme Court urged the LCI to look into the existing rape laws and give recommendations for changes that incorporate the interests of both women and children. Along with Sakshi, the IFSHA (Interventions for Support, Healing & Awareness), the All India Democratic Women’s Association and the National Commission for Women (all organizations that seek reform within the existing power structures) were consulted and these organizations gave their suggestions.

Changes recommended by the Law Commission in the India

Penal Code, 1860, Section 375:

1. The first significant change recommended by the Law Commission is that the word rape itself be replaced by ‘sexual assault’. This has been made into one category, clubbing it with outraging modesty. Previously, vague definition and interpretation of the term had come an excuse for appealing for lighter punishment. For instance, in one case, where one Major Singh had molested a seven-month-old baby girl, each member of the panel of judges had a difterent understanding. One ‘learned’ judge asked how an infant girl could have any modesty at all that could be outraged. While to another judge, modesty lay in the eyes of the beholder and his intention in outraging it.

2. Secondly, instead of restricting rape to sexual intercourse, now, other sexual acts, including penetration of objects like sticks, etc., (often used in police torture or in communal riots), would be considered as sexual assault. This is also keeping in mind child rape where penis-vagina penetration may not have taken place. A new section on Unlawful sexual Contact is recommended for insertion (376E) while Section 377 (same sex intercourse as an unnatural offence) is recommended to be deleted. Some procedural changes have been recommended, such as, that the FIR should be recorded by a female police officer, government servant or in the presence of a female social worker, changes regarding medical examination of the victim and the manner of recording confessions and statements.

It is clear that the above changes still leave ample scope for the major loopholes – that a woman has to prove that she did not give consent and also give corroborative proof of this. The Law Commission has not accepted that ‘consent be replaced with ‘un equivocal voluntary agreement. Marital rape still is not recognised addition, a campaign has begun protesting against another drawback of the LCI recommendations -that the law is now being made gender neutral. Bearing in mind child sexual abuse, which includes the abuse of boys, the law is proposed to be gender neutral. The law proposes to club women, children and homosexuals, each of whom are oppressed in different ways, into the same category. In the name of broadening the scope of sexual abuse, this recommendation only complicates matters. This opens the scope for men to charge women with sexual assault. Indian society has such a strong patriarchal bias, and the level of politics is so degenerate, that it is not a far-fetched provision will be misused. More seriously, the point is that each of these categories has their specificities and need special provisions to deal with them. Child sexual abuse is a serious social problem in India, and there is a need for a separate law to deal with it. Homosexual assault and abuse is an issue in which recommendations have been made without consulting those concerned or discussing the problems that are being faced by them. Most important, in India, where physical and sexual assault of women is so rampant, and a major part of it socially and politically legitimized, what is the purpose of changing provisions on rape to make them gender neutral? Such an approach is divorced from the Indian social and political reality. Many women’s groups have also opposed this recommendation.

Regarding punishment for sexual assault, the LCI recommends enhancement of the minimum punishment to seven years. With regard to sexual assault by a police officer, by a public servant, i.e., custodial rape, and in the case of sexual assault of a pregnant woman, a minor or a gang sexual assault, the minimum punishment is suggested to be ten years. Section 376A recommends that if a man, who is separated from his wife, commits sexual assault on her, the minimum punishment will be two years. Sections 376B to D, pertaining to sexual assault by public servants, superintendents of jails and remand homes, hospital staff or management member with any woman in their custody/institution/hospital, recommend the minimum punishment to be not less than five years. A new section 376E is suggested to be added about unlawful sexual contact (colloquially called eve teasing or molestation) and simple imprisonment recommended as punishment.

Changes recommended in The Indian Evidence Act 1872: Section 114A:

It is recommended that if sexual assault by the accused is proved and the question of consent is being contended, then, if the victim states that she did not consent, the court shall presume that she did not consent. Sections 53 and 146, regarding the past character of the victim, have been amended.

How do the laws in India compare with the rape laws in other countries? In the Philippines, where there has been a strong women’s movement, some positive changes in the rape laws have been made. The new laws recognize that rape is not a crime against chastity but, rather, a crime against persons and is a question of human rights. It broadens the definition of rape to include sexual assault and puts this into two categories, one graver than the other. It implicitly recognizes marital rape as a crime. In America, where there had been a strong women’s liberation movement in the 1960s and 1970s, there have also been changes in rape laws. In 1984, a New York court held marital rape exemption to be unconstitutional. Several other countries, including Russia, Sweden, Denmark and Australia, allow the prosecution of husbands for raping their wives. Yet, we find that in both America and the Philippines there is a high rate of sexual violence against women, thus confirming our understanding that unless there is a revolutionary change in the class relations and the eradication of patriarchy, sexual assault against women will go on unabated. In the Indian context too, we can see the law tailing to give justice, not because of the lack of evidence, so much as lack of will. For example, 70 percent of the rapes are usually of minors, where the question of proving that the act was with consent does not arise and the accused can easily be held guilty. Yet why do these crimes go unpunished? In the Gujarat genocide, last March, a number of eyewitnesses to rapes exist- something that is usually impossible to find. But will these people be convicted?

CONCLUSION

It remains to be seen how many of these recommendations are accepted and in what manner. To hope for greater justice for women from the present government is futile. All the ruling class parties are deeply steeped in patriarchal values and their elitist class/caste basis ensures that they legitimize rape as part of the overall subjugation of society. While giving populist, rhetorical speeches, and calls for the death penalty, etc., the major parties have condoned all, and even well publicized, cases of sexual assault and rape, in places like Gujarat, Delhi (anti-Sikh pogrom), Kashmir, North-East, etc. Cosmetic changes in the law are unlikely to help the rape victim. Besides, the patriarchal biases within the judiciary, police, and other sections of the establishment will further retard the process of gaining justice.

Rather than merely depending on the legal process all democrats must mobilize the masses to take direct action against the rapists and molesters at the local level. They must be humiliated and publicly condemned and made to compensate and apologize to the victim. The victim, on the other hand, needs to be socially and sensitively assisted to get over the trauma, and her self-confidence restored. While agitating for changes in the rape laws, social actions, like ostracizing rapists, blackening their faces, the beating up of the rapist publicly, etc. could be effective, militant actions.

Yet, in the long run, there is a need to understand rape as a weapon of subjugation, and its link to patriarchy and class exploitation. The movement must, in the final analysis, mobilize women to fight for a change in the basic structure of society that will eradicate patriarchy, and with it, rape, from the roots.