The traditional view of rape regarded women as the property of men, and any act of sexual violence committed against her was considered to be the defilement of the property of another man. This is the root cause of the thousands of incidents of sexual violence that go unreported. Such a perspective to rape carries with it countless social stigmas, mainly because the worth of a woman is measured by her “sexual purity”. Feminist thought and activism over the decades have worked towards changing and widening the definition of rape in all spheres and have challenged the stereotypical conceptions of the crime that have origins in the traditional patriarchal definition of rape. It is important to identify rape as an assault on individual autonomy and pave the way for gender-neutral laws and legal procedures. We believe it is absolutely necessary for the legal system to identify and abolish the discriminatory rules and procedures in a rape trial, those which associate societal standards of character with the integrity of a witness, so that rape in this country, is only looked at as a crime and not an issue of shame.
The Nirbhaya rape case saw widespread public outrage and led to the institution of the Justice Verma Committee, the report by which brought about changes in laws relating to sexual violence in India. We seek to firstly, draw a horizontal differentiation to what the Act actually came to as compared to the Verma Committee report and the ordinance- what proposals it ignored, and implemented, and the impact of the resultant legislation. The paper will seek to identify whether the there have been any changes in the response system of the police in rape complaints and the trial proceedings in courts. The paper will primarily focus on a different perspective on rape that what is accepted in the country, and how changing the definition of rape to abolish the stigma associated with it will help in more effective action towards curbing sexual violence. The paper will also try to look at laws in other countries involving corroborative evidence in rape trials; the fallacy in the concept of admissibility of evidence regarding a victim’s sexual history and whether implementation of such methods in India will help build a better system of justice devoid of prejudice.
Sexual violence, especially against women in India is a greatly stigmatized issue and such an approach to this crime only leads to the denial, or a delay of justice. It is not looked at as just any other crime which can be looked at objectively, devoid of any societal considerations. It is more important to focus on the harm that rape does to individual victims and build a gender-neutral legal system that will address rape objectively as a crime, and not as a social stigma. Law is a double edged sword when it comes to sexual violence. It is impossible to eliminate it from society with just the help of law, but good laws will prevent the denial of justice to any victim of sexual violence.
- Anti-Rape Legislation in India
History has proven that reforms in anti-rape laws have not come through proactive measures by the Parliament; a discussion on violence against women has not occupied much weight in parliamentary discussions. There have been several committees’ recommendations like the Law Commission’s 84th Report in 1980, the 172nd Report of 2000 relating to this subject, the National Police Commission Reports apart from numerous decisions and orders by the judiciary that have been gathering the dusts due to the apathy of politicians and government officials. It was the brutal gang rape of a young woman in New Delhi in December 2012, exactly four years from now that bought forth a nationwide protest that triggered the formation of the famous Justice Verma Committee comprising of Late Chief Justice Verma, Justice Leila Seth, and senior advocate Gopal Subramaniam which ultimately led to the Criminal (Amendment) Act of 2012 that brought forth the much needed changes in ante-rape laws in India.
A similar instance occurred in the case that brought the Criminal (Amendment) Act of 1983 into force which was triggered by a nationwide protest caused due to the Supreme Court’s infamous decision in Tukaram v. State of Maharashtra[i] where it held that consent obtained under Section 375 could only be applicable in cases of fear of death or injury and that Mathura, the victim had consented to the intercourse since there was no indication for resistance. The public outcry to include custodial rape in the legislature is significant to demonstrate how public opinion and protests have been responsible for reforms in sexual offences in India. Accordingly among several amendments, sections 376 A to E were added in the Indian Penal Code that included instances of ‘aggravated rape’, Section 114A was added which put the burden of proving ‘consent’ upon the accused in cases of aggravated rape.
The Verma Committee, which was formed by the Central government to suggest amendments in criminal law to sternly deal with sexual assault cases, submitted its report within a month after considering thousands of petitions and suggestions by the general public, jurists, lawyers, NGOs and women’s groups. While a detailed elaboration and analysis of what all came to be adopted in the Ordinance and the Act itself will be discussed later, it is pertinent to first understand in detail what the committee itself said and recommended.
- Rape Defined
The Criminal Law (Amendment) Act 2013 revised the definition of rape under the Indian Penal Code. Rape is now defined as:
“Section 375: A man is said to commit “rape” if he:–– (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
Firstly.–– Against her will.
Secondly. –– Without her consent.
Thirdly. –– With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. –– With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.–– With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. –– With or without her consent, when she is under eighteen years of age.
Seventhly. –– When she is unable to communicate consent.
Explanation 1.–– For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.–– Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exceptions –– 1. A medical procedure or intervention shall not constitute rape; 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[ii]
Before the Amendment, rape defined in the Indian Penal Code involved coercive non-consensual sexual intercourse between a man and a woman. The meaning of sexual intercourse was interpreted by the courts as “mere slightest or partial penetration of the male organ within the labia majora or the vulva or pudenda is sufficient to constitute ‘sexual intercourse.”[iii] The amendment expanded the meaning of sexual intercourse to include acts other than penile-vaginal penetration. Despite these changes in law, enormous loopholes remain in rape adjudication within our legal system. Furthermore, the law does not recognize many acts which are a violation of an individual’s dignity as much as those acts which have been defined as sex crimes in law. The definition presumes the gender of both the offender and the victim, hence defining male rapes out of existence. The definition also does not identify the rape of a woman by her husband as rape, hence marital rape remains decriminalized in India.
The law operates on several presumptions when it comes to conviction in rape. Rape is tool of domination employed by the society to subjugate women and police their behaviour. Any deviance from the social and moral codes is punished with rape. Although not explicitly stated in Section 375, rape trials also presume the use of force in incidents of rape, which leads to many other kinds of rape not being recognized in law. When such loopholes are present in the legal system, we often find victims hesitating to report incidents of rape. It is true that many incidents of rape or any other form of sexual abuse go unreported because of the social stigma associated with them. Rape trials in the country are clouded in prejudices and cultural biases which also have the additional effect of making people fearful of the law. We will also look at rape as has been defined by other organisations to gain a clear idea of how it is understood around the world.
The World Health Organization’s World Report on Violence and Health defines rape, within the meaning of sexual violence, physically forced or otherwise coerced penetration – even if slight – of the vulva or anus, using a penis, other body parts or an object.[iv] The 1998 Rome Statute of the International Criminal Court has defined rape based on two key elements:[v]
“The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or the perpetrator with a sexual organ or of the anal or genital opening of the victim with any object or any other part of the body.”
“The invasion was committed by force, or by the threat of force or coercion, such as that was caused by fear of violence, duress, detention, psychological oppression, or abuse of power, against such person or another person, or by taking advantage of a coercive environment or the invasion was committed against a person incapable of giving genuine consent.”
By considering the incapability of a person to give consent, this definition moves away from the common assumption of implied consent.
United Nations, in its Handbook for Legislation on Violence against Women recognizes that sexual violence has often been addressed in the framework of morality, public decency and honour, and a crime against the family or society, rather than a violation of an individual’s bodily integrity.[vi] In the later sections, we will seek to explain how the Indian legal system works with the same framework where the harm that rape does to an individual is less focused on.
Use of Force and Lack of Consent:
The definitions of rape have evolved over time from requiring a use of force or violence, to requiring a lack of consent.[vii] They have evolved to include certain encounters not socially or legally recognized as how rape should be, for example, marital rape and date and acquaintance rape. In most legal systems, force and lack of consent make up a dual requirement to constitute the offense of rape. Even in India, authorities on medical evidence suggest tests to look for resistance on the part of the victim to appraise the claim of the rape victim. On the other hand, consent has been understood as simply the absence of refusal or resistance, in many instances.[viii] In many instances, sexual consent of a woman has been implied from the way she dresses, or her behaviour. This is particularly problematic because it discredits the woman’s integrity as an individual with the freedom to agree or disagree to an activity. As will be discussed in a later section, it does not help that rules of medical evidence in cases of rape are structured on a presumption that the allegation of rape is false.
Consent of the victim or lack thereof, is particularly difficult to establish in a rape trial. As brought forth through an amendment made by the recommendations of the 42th Law Commission, Section 114A was included in the Evidence Act whereby it is given that if sexual intercourse or an attempt for it has been proven and the prosecutrix alleges before the Court that she did not consent to it, then the Court shall presume so.[ix] Marks of struggle cannot be the only evidence of want of consent. As given in the 84th Law Commission Report, it is in the rules of The Evidence Act that proof of a fact or consequences are not limited to a species of facts. Thus, the physical resistance or struggle, though no doubt relevant to prove that consent was not given is not the only determining evidence when consent has to be proven.
Patriarchy and Rape
The traditional definitions of sex crimes perpetuate a culture of victim-blaming, because of the focus on the modesty, or chastity of a woman. The Indian Penal Code distinguishes between attempt to molest (S. 509, IPC), sexual assault (S. 354, IPC), and rape (Ss. 375, 376, IPC), the hierarchy of which distinction is based on the concept of feminine modesty.[x] The inclusion of the concept of a woman’s modesty in understanding rape and sexual assault is a manifestation of the idea that women are less than human, that they are property subject to the whim and protection of males, and that their defining factor is their “purity”, or “chastity”. Fairly enough, Justice Krishna Iyer, in the case of Rafiq v. State of U.P. described rape as “deathless shame” for a woman.[xi] This was the situation described in the judgment in 1980, and it is disheartening to see that almost four decades later, hardly anything has changed with respect to the way victims of rape are treated.
The Delhi gang rape of 2012 sparked massive outrage all across the country, and one would assume that there would be some reform on the criminal justice system when it came to dealing with cases of rape. What came out of it was a Criminal Law (Amendment) Act 2013, the provisions of which are in places hastily drafted, ambiguous, and inconsistent with some provisions of other statutes in existence. The Act changed the definition of rape in S. 375 of the Penal Code but it still does not recognize marital rape, male rape, nor does it do away with some of the discriminatory and inconclusive practices employed in rape trials as corroborative evidence against the victims’ statements.
By categorising sex crimes as disgrace of unique feminine modesty, the intervention of the law becomes an act of protection of this very feminine modesty.[xii] Such categorisation generalises incidents of rape and the victims, by assuming that the victims were passive in their actions because no woman would risk her honour and do any act which may lead to her falling from grace. It also leads to the law failing to recognise incidents of rape or sexual abuse in which the perpetrator is someone known to, or trusted by the victim. Such categorising propagates victim-blaming culture, in which the blame for the incident is shifted onto the victim, and traced to the victim’s alleged loose character.
Indian society is traditionally patriarchal, where women are reduced to the status of property subject to their relationships with the men in their lives, be it their father, brother, or husband. Take the Hindu community, for example, where women are worshipped in the form of goddesses, with utmost reverence. But in the same community, women are held to a certain rigid standard which makes them worthy of respect and protection from the society. Any deviance from that standard is not received well, and this is evident from the number of incidents of honour killings that occur in this country. Rape of a woman is viewed as a family dishonour, because traditionally, the honour of the family is placed on the character of the women of the family. Women have to remain within the protection of domestic space to avoid rape.[xiii] Rape is used to punish women for transgressing social and moral codes.[xiv] Rape brutally subordinates women to men’s will, constantly polices their behaviour, limits their freedom and fosters the patriarchal ideology that women need male protection.[xv]
Status of Women as Property
The traditional view of women as property of men has dominated the field of discourse till contemporary times. The value of a woman is measured by her sexual “purity”.[xvi] Estelle Freedman in her book Redefining Rape writes about how laws protecting women from sexual violence were often designed to preserve female chastity in the United States in the decades after the Civil War.[xvii] Rather than protecting the woman as the injured party, laws were meant to preserve a woman’s worth to her father or her future husband.[xviii]
To start at the most basic level, let us take the example of how women are expected to change their surnames to that of their husbands’ after marriage. This is clearly not a violent means of controlling women, but this tradition clearly has roots in male ownership of women.[xix] It points to one gender’s ownership and right to identity over another.[xx] All traditional institutions in India are deeply-rooted in patriarchy, and every single custom or ritual reinforces this idea that women are the property of men. Going a step further, we would like to point out the practice of married women wearing a mangalsutra or marking their foreheads with vermillion as a symbol of their married status. Do men have any such expectations they must fulfil in order to appear married? A poll taken by Women’s Health magazine in USA asked men to state whether they would change their surnames to their wives’ after marriage.[xxi] Answers were mostly along the lines of “No, my name is part of who I am.”[xxii] Given the position of Indian women, it is safe to assume that the answers will not vary greatly had this poll been taken among Indian men. This age-old tradition that is prevalent all over the world has its roots in the doctrine of coverture- the legal principle that upon marriage, a woman became her husband’s possession.[xxiii] Any woman who refuses to take her husband’s surname after marriage is interrogated with questions that range from whether she believes that the marriage will last, to accusing her of not unifying her family. This custom may not be one of the more violent forms of reinforcing the status of women as property of men, but it most certainly does undermine her right to identity and her freedom of choice.
Now that we have established how the status of a woman is perceived as in practice, we can discuss why this perception is problematic. A woman may be equal to a man according to the rights guaranteed by the Constitution, but the society does not allow her the freedom of choice. This is evident from how every time there is an incident of rape in the country that is covered by the media, there are questions being raised about what the victim was wearing, what she was doing and who she was with. Women in India are expected to conform to a strict set of norms to be worthy of respect. To back this argument, we have several examples of politicians talking about how commodities ranging from mobile phones to jeans are bad influences on Indian women.[xxiv] Sexually liberated women are scorned, and such bias is perpetuated in rape trials as well, because medical jurisprudence in India relies on practices that attach significance to a victim’s sexual history in order to prove or disprove a charge of rape. These biases perpetuate rape myths and stereotypes and completely undermine the dignity of a rape victim.[xxv] The cultural stigma that is attached to a rape victim also discourages them from reporting incidents of rape. Medical jurisprudence in India, from the time when Lord Macaulay drafted the Indian Penal Code, has set standards of proof for charges on rape on the assumption that there are false charges of rape being made.[xxvi] A much sought-after amendment that was suggested by the 84th Law Commission and was put to law only 23 years later was the omitting of sub-section (4) of Section 155 in the year 2003. This removed the past sexual relations with persons other than the accused of the victim out as the evidence admitted in court. This was an important step in de-establishing a moral ground to the rape trial and the profiling of the victim. The recommendation to add Section 53A in the Evidence Act is also reiterated by the Committee which says that in the question of consent to sexual intercourse, the character of the prosecutrix or her previous sexual experience may not serve as evidence in the court and may not affect the quality of consent.
- Rape Adjudication in India
The Justice Verma Committee has categorically said, “Failure of good governance is the obvious root cause for the current unsafe environment eroding the rule of law, and not the want of needed legislation.”[xxvii] It has been acknowledged in India, even now that with laws for women generally, what has been noticed is that even though there are legislations that have been enforced to protect women, there is a lack in appropriately enforcing such legislations. Even though a need for change in the substantive law which covers the definition of rape is felt even today, there is a much greater need for proper and efficient implementation of the laws that are already in place. This indicates the procedural aspect of the law and its everyday working. The whole process of filing a complaint, medical examination, and the trial end up becoming a major source of harassment to a victim of sexual assault. This is because of the insensitive and untrained approach of the personnel involved in the process and the delay in the mechanism of justice itself. For these factors to be improved, more than statutory laws to be amended there must be a change in the consciousness of the service providers towards the victim.
Medical Evidence in Rape
The medico- legal examination of the victim forms a huge part of this change. “Victim profiling” is a condemnable practice undertaken by the medical examiners of the victim that results in her further mental torture. The Supreme Court in the case of Pt. Parmanand Katara Vs. Union of India[xxviii] has emphasized the paramount, absolute and total obligation of doctors, whether in private or government service to extend his/her services with due expertise for protecting the life of the victim without interference from laws of procedure. Medical examiners should also conform to an assigned guideline enlisting the information required to be put in the report in all rape cases. This is important because the question of whether sexual assault occurred should not anywhere surface in the report. This is because the occurrence of rape is a legal question and not to be determined by medical diagnosis. The two finger test, which tests the laxity of vaginal muscles, is a long condoned practice must not be conducted. The “finger test” which is also done to know the status of the hymen, should not be put any emphasis to and should be examined as just another part of the sexual organ. Section 164A brought on twenty- five years after it was recommended by the 84th Law Commission Report made it unlawful to document the sexual history of the victim while giving other guidelines to be followed. As mentioned earlier there hasn’t been a lack of understanding or statutory law or guidelines regarding this issue. Even before, the standardized protocol for medical examination which adheres to international standards was given by in a decision of the Delhi High Court, Delhi Commission for Women v. Delhi Police.[xxix]
All authoritative textbooks on medical jurisprudence in India assert that a charge of rape is very easy to make and very difficult to refute.[xxx] The standard of proof required for rape is very high, and the procedures undertaken in rape trials shift the burden of proof on to the prosecutrix. Firstly, all authoritative books on medical jurisprudence are structured in a way that presumes that the victim may be making a false allegation. This assumption has been in prevalence since colonial times, when Norman Chevers first came out with a book on medical jurisprudence for India, in 1856.[xxxi] When books by Indian authors like Modi and Parikh came out, their medical jurisprudence was almost a revision of the work of Chevers and other authors from the colonial period. They reinforced the same biases in testing the veracity of rape allegations, where the state of a woman’s hymen, and her habituation to sexual intercourse were somehow relevant in determining whether she had been raped or not.
Secondly, the tests employed in these books for testing the veracity of a claim of rape neither determine consent or do they determine the occurrence of penetration. These textbooks make the state of the woman’s genitals central to the evaluation of the veracity of the claims of rape.[xxxii] These textbooks suggest the finger test to test the elasticity of the victim’s vagina. It is meant to test her habituation to sexual intercourse. It has been used on all categories of rape victims, from young, pre-pubescent girls, to married or pregnant women. The finger test has been ruled as a violation of the victim’s right to privacy and physical and mental integrity and dignity by the Supreme Court in Lillu @ Rajesh & Anr. v. State of Haryana.[xxxiii] Proving a claim of rape beyond reasonable doubt continues to be hindered by social constructs like virginity. Indeed, given the very nature of the crime, proving or disproving the charge is difficult. However, the tests employed by the legal system to determine the veracity of the claims are inconclusive, and weighed down by cultural biases.
Take, for example, the now-repealed Section 155(4) of the Indian Evidence Act, which allowed the direct questioning of a victim’s past sexual history in order to cast doubt on her claim of rape.[xxxiv] Although this section has been repealed, past sexual history continues to be introduced into evidence by other means[xxxv] in rape trials. The relevance that is attached to past sexual history in rape trials is evident in the standard of medical evidence so introduced. All tests point towards the victim’s habituation to sexual intercourse. The state of the hymen, the elasticity of the vagina, none of which have been proven to conclusively determine how habituated a person is to intercourse,[xxxvi] continues to be introduced as evidence in rape trials. It is dehumanizing, because the message that the employment of such practices send out is that a woman who is habituated to sexual intercourse is not worthy of the protection of bodily autonomy that is afforded to women who are not. It makes her less of a human being, and reinforces the same central ideas that our patriarchal society is built upon, that women are only as good as the state of their hymen.
It is an irony, that medical evidence which claims to be the most scientific method of proving or disproving any charge, is plagued by such cultural biases when it comes to charges of rape. However, courts attach utmost importance to these very textbooks on medical jurisprudence, going as far as to cite them in case laws, when it is believed that the testimony of the doctor is insufficient. This is because medical evidence is considered to be objective.[xxxvii] But in light of rape charges, it is clear that these textbooks are clouded in bias and therefore, not reliable. None of the tests that are prescribed by these books conclusively determine that penetration had occurred where there was a lack of consent. These tests are prejudiced because it does not facilitate a method by which a victim can prove beyond reasonable doubt that rape had taken place. Instead, all of the tests only purport to cast doubt on the claim of the victims, owing to the fact that they are all structured on the presumption that women frequently make false allegations of rape.
Rape adjudication is heavily influenced by the standards of medical evidence that is set by these books. They perpetuate rape myths, while describing how a woman may react to rape, but more often than not, their descriptions turn out to be rather prescriptive. They mandate how a woman should react to rape, and suggest types of medical evidence that demonstrate a woman’s reaction to rape.[xxxviii] The definition of rape in Section 375 of the Indian Penal Code does not necessitate the use of force in order to constitute a rape. But medical evidence relies on injuries sustained by the victim as a result of struggle to determine a lack of consent. This eclipses out an entire category of rapes which are perpetrated by persons known to the victim, or which occur in a way that is physically non-violent, or in any other way where the victim has no signs of struggle or resistance on her person.
The legal aspect here starts with the trial court where the recording of the evidence and the primary and cross examination happens. It is at this level of the judiciary that major changes have been sought. The Magistrate has to record the statement of the victim under Section 164, of the Code of Criminal Procedure on the day the application is moved by the Investigating Officer. As it is given in Section 327of the Cr.P.C., enacted pursuant to the 42nd Law Commission Report,[xxxix] the Presiding Judge or Magistrate may direct an in camera enquiry and trial of rape and allied offences. This is a very important provision, enacted to ensure that an environment conducive and comfortable to the victim shall be in place during the proceedings. The committee recommended that not the entire enquiry and trial, but only the examination in chief and cross examination should be conducted in camera while the remainder of the trial mist be conducted in open court for organizations, general public and the media should be able to observe the conduct of a trial. In spite of the amendment however, it is seen that the trial courts are either not conscious of the amendment or do not realize its importance for in camera proceedings have been extremely rare to be found. It was given in the case of State of Punjab v. Gurmeet Singh[xl] by the Supreme Court that, “It casts a duty on the court to conduct the trial of rape cases etc. invariably “in camera”. The courts are obliged to act in furtherance of the intention expressed by the legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327(2) and (3) Cr.P.C. and hold the trial of rape cases in camera.”[xli] Trial in camera is important because not only does it keeps the self-respect of the victim of crime in tune with the legislative intent of the Act but it also improves the quality of the evidence of the prosecutrix as she is not hesitant or nervous to recount the happenings of the offence as she would have been in an open court. This also would indirectly help in improving the acquittal rate of sexual crimes as the victims would be able to serve as better, more reliable sources of evidences. In camera trials also prohibits the proceedings to be published or printed by the media and helps in maintaining the anonymity except with permission which further curtails further embarrassment for the victim. The judgment goes on to say that, “Trial of rape cases in camera should be the rule and an open trial in such cases, an exception”.
Sensitization of Judges
Another very imperative stage in turning the environment victim friendly is the sensitization of the judges who conduct such trials. It is highly discreditable in the name of justice to know that victims have been pulverized even in in camera proceedings by a group of men in a hostile environment. This defeats the purpose of not having an open court because the objective of having an environment conducive to the conduct of a fair trail is not achieved and the victim of the sexual crime has to still suffer mentally. The Verma Committee recommended that the judges who try rape cases should be specifically chosen by the Chief Justice of the High Court with a conscientious allocation of work. The High Court has these powers conferred to it under Article 235 of the Constitution and has in effect been undertaken by the Delhi High Court in Virender v. State of NCT of Delhi[xlii] where Justice Gita Mittal gave guidelines to be implemented with regard to child sexual offences. It is sad to note that even after being given such directions from time to time, these are being ignored by the police, the prosecutor and by the magistrate alike. The only recourse for this is further guidance by the High Courts and imparting legal education to the stakeholders and service providers in this regard.
All these measures are taken so that the trial does not end up becoming another ordeal for the victim and that she should not be made to go through mental harassment due to insensitivity of the police and the courts.
Reliance on Statement of Prosecutrix
Another menacing practice followed by the trial court is their bias against the statement of the prosecutrix and hence seeking corroborative evidence to prove the crime instead on relying on her statement. The court has to implicitly rely on the evidence given by the prosecutrix in the background of the entire case and seeking her statement’s corroboration is not a compulsion when the evidence inspires confidence. In anyway, additional evidence should be sought which provides an assurance of the statement’s truthfulness and not corroboration in material particulars. It is important for the courts to not get swayed by minor or insignificant discrepancies of the prosecutrix’s statement. There should be an implicit reliance on her statement and seeking corroboration The Hon’ble Supreme Court, in State of Punjab v. Gurmeet Singh[xliii] said that, “it is the responsibility of the court to be sensitive while dealing with cases involving sexual molestations.” This judgment also put light on the harassment that a victim of sexual assault goes through during her cross examination, which is another aspect that we’d like to discuss. While it is the right of the defence to question the victim in order to bring out the facts on record and test her credibility, cross examinations often become a repeated recalling of the offence by the prosecutrix with a view to attempt to twist the interpretation of the events given by her so as to make them appear inconsistent with her allegations. It is an onus on the court to not play party to such form of repeated mental persecution of the victim and effectively control the recording of evidence in court. Her silence or a confused stray sentence should not be wrongly interpreted as “discrepancies and contradictions” in her evidence.
Representation of the Victim
The Committee also brings to notice the issue of representation of the victim. Additional representation, if sought, should be made available to the complainant/ victim. The advocate of her choice can not only assist the prosecution but also has a right of audience. This adds a further level of oversight in the trial process. It is also a duty of the State to provide the victim with a counsel, as said in the decision of the Apex Court in Delhi Domestic Working Women’s Forum v. Union of India.[xliv] Here as the court says, not only should a sound legal counsel has to be provided for the trial, but legal assistance should also be available in the police station. It is the duty of the police to inform the victim about her right to representation and a list of advocates willing to act in these cases should be kept at the police station as well.
Two circulars, as mentioned in the report, have been issued by the Commissioner of Police, Delhi where firstly[xlv] the IO is obligated to inform the complainant of the listing of the accused’s bail application so that she has the knowledge and get a chance to oppose the bail application. This serves to bring transparency in the investigation process and the police also play a positive role in the trial. The second circular[xlvi] directs the police to inform the counsel for the Delhi Commission for Women of the listing of a bail matter in a rape case so that they may oppose such a bail.
- Redefining Rape and Reforming Rape Adjudication
With the amendment to the definition of rape, the expansion in the meaning of sexual intercourse is a significant change. But anti-rape laws have a long way to go in order to deliver justice in its true sense. The first step towards that goal should be the recognition of rape as a crime against the individual itself. Liberal feminists have regarded rape as a gender neutral assault on individual autonomy, likening it to other forms of assault and focusing primarily on the harm that rape does to individual victims.[xlvii] We propose a reform of rape in law along the same lines.
Firstly, individual autonomy must be recognized in law. Rape in India is an offense only when the victim is a woman, and rape trials are conducted with cultural biases that are disadvantageous to the victims. Defining rape as an assault against the individual itself will bring into recognition incidents of male rape and also lead to fair rape trials. The law must also recognize marital rape, because assuming that the individuality of a woman ceases to exist after her marriage is a violation of her basic human rights. Her consent to marriage must not imply a lifelong consent to sexual intercourse with her husband.
Secondly, rape adjudication must focus on the harm rape does to individual victims, as opposed to the popular reaction of rape being a harm against family or society. Rape laws must be objective, and those which exist at present are plagued with social constructs of women’s chastity and family honour. The biases which prevail in rape trials lead to several incidents of rape going unreported. Rape in law must be regarded separately from the social stigma that is associated with it. Rape trials must be indifferent to cultural biases and shun practices which tend to focus on character assassination of the victim to discredit their claim. Rape laws are shrouded in social constructs which are not which are not scientifically relevant, and the procedures that are conducted in these trials only add to the trauma of the rape victim.
Laws relating to rape and other forms of sexual violence are in dire need of reform, but given the way Indian society is structured, it will be a long time before anti-rape laws administer justice in its true sense to every individual.
There were significant changes made to the statutory law post the Verma Committee report, first through an ordinance, and then ratified by the parliament as the Criminal Law (Amendment) Bill of 2013. This new Act expressly recognized certain acts as new offences like acid attack, sexual harassment, voyeurism, stalking which have been incorporated into the Indian Penal Code. In terms of punishment for rape, the term has been increased to imprisonment for seven years up to life and in aggravated situations; punishment will be rigorous imprisonment for a term not less than ten years which may extend to life. Additionally, a new section was added 376A wherein it is stated that if the accused, “inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state”, shall be punished with rigorous imprisonment which may not be less than twenty years and may extend to life imprisonment, or with death. Thus, the new Act provides for death penalty in cases where the victim suffers death or a permanent vegetative state due to the assault. There were many things that the Bill did not incorporate, like changing the term rape to sexual assault. While still the law can get more progressive, the changes that need to be sought are not in the statutory law but in their implementation.
What should bother the nation is not that the cases of rapes are increasing year after year but rather that the acquittal rate in rape cases is a 24.21% as compared to other crimes, like murder. According to the National Crime Records Bureau, 98% of the recorded rape cases are cases where the person is known to the victim.
Changes done in procedural laws and their due implementation help in making sure that the guilty is punished. Throughout history, legal definitions of rape have evolved to serve justice in a greater sense, but India has a long way to go. There must be steady reform in rape law in India, instead of the government responding only when the media kicks up frenzy over particular rape incidents, through ordinances and hastily drafted bills. Rape trials must separate the crime from the social stigma that is associated with it, and shun all biases which lead to a prejudiced treatment of the victim by the law. In this way, the trauma experienced by the victims while going through the rigorous procedures in litigation may be reduced, and there will be lesser and lesser incidents of rape which go unreported.
All these changes should be brought about in the hope of achieving a society where victims of rape receive humane treatment, and gender violence is brought down by an effective and fair legal system.
[i]Tukaram v. State of Maharashtra, (1979) 2 SCC 143.
[ii] S. 375, Indian Penal Code, 1860.
[iii] Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204.
[iv] World Health Organization, World Report on Violence and Health, Sexual Violence, Chapter 6, p. 149, available at https://www.who.int/violence_injury_prevention/violence/global_campaign/en/chap6.pdf, last seen on 19/12/2016.
[v] Center on Law and Globalization, The Statute of the International Criminal Court Protects against Sexual Crimes, available at https://clg.portalxm.com/library/keytext.cfm?keytext_id=204, last seen on 21/12/2016.
[vi] United Nations, Handbook for Legislation on Violence against Women, p. 26, available at https://www.un.org/womenwatch/daw/vaw/handbook/Handbook%20for%20legislation%20on%20violence%20against%20women.pdf, last seen on 19/12/2016.
[viii] R. Whisnant, Feminist Perspectives on Rape, The Stanford Encyclopedia of Philosophy, (Fall 2013 Edition), available on https://plato.stanford.edu/archives/fall2013/entries/feminism-rape/, last accessed on 17/12/2016.
[ix] Section 114A, Indian Evidence Act, 1872.
[x] K. Mahadevan, The ‘Virtuous Woman’: Law, Language and Activism, Economic and Political Weekly, Vol. 43, No. 17, p. 45 (26 April- 2 May 2008) available at https://www.epw.in/journal/2008/17/review-womens-studies-review-issues-specials/virtuous-woman-law-language-and, last seen on 15/12/2016.
[xi] Rafiq v. State of Uttar Pradesh, 1981 SCR (1) 402.
[xii] Supra note 10.
[xiii] Ibid. at p. 46.
[xiv]Supra note 4.
[xv] J.K. Das, Reflections on Human Rights and the Position of Indian Women, The Indian Journal of Political Science, Vol. 64, No. 3/4 (July-December, 2003), available at https://www.jstor.org/stable/41855782, last seen on 20/12/2016.
[xvi] Supra note 8.
[xvii] C. D. Hernandez, Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation, 30 Berkeley Journal of Gender Law & Justice 323 (2015), available at https://scholarship.law.berkeley.edu/bglj/vol30/iss2/4 , last seen on 20/12/2016.
[xix] C Zielinski, Why Women Are Still the Property of Men, The Daily Telegraph, 15 September 2015, available at https://www.dailytelegraph.com.au/rendezview/why-women-are-still-the-property-of-men/news-story/b18f0a4d456db6967e7c05f4f309604f , last seen on 20/12/2016.
[xxiv] Short Skirts, Chowmein, Phones: TMC MLA Adds To List Of Bizarre Comments On Rape, First Post, 28 August 2014, available on https://www.firstpost.com/india/short-skirts-chowmein-phones-tmc-mla-adds-to-list-of-bizarre-comments-on-rape-724827.html, last seen on 18/12/2016.
[xxv] D. Mitra, M. Satish, Testing Chastity, Evidencing Rape, Economic and Political Weekly, Vol. 49, Issue No. 41, 11 October 2014, available on https://www.epw.in/journal/2014/41/special-articles/testing-chastity-evidencing-rape.html, last seen on 21/12/2016.
[xxvi] Ibid. at 53.
[xxvii] Justice J. S. Verma et al, Report of the Committee on Amendments to Criminal Law, 23 January 2013, available on https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf, last seen on 23/12/2016.
[xxviii] Pt. Parmanand Katara Vs. Union of India, (1989) 4 SCC 286.
[xxix] Delhi Commission for Women Vs. Delhi Police, W.P (Crl) No. 696 of 2008, DHC.
[xxx] Supra note 25.
[xxxi] Ibid. at 52.
[xxxii] Ibid, at 54.
[xxxiii] Lillu @ Rajesh & Anr. v. State of Haryana, (2013) 14 SCC 643.
[xxxiv] Section 155(4), Indian Evidence Act, 1872.
[xxxv] Supra note 25, at 56.
[xxxvi] R.A. Underhill. J. Dewhurst, The Doctor Cannot Always Tell. Medical Examination of the “Intact” Hymen, The Lancet 1(8060):375-6 , March 1978, available at https://www.researchgate.net/publication/23060079_The_doctor_cannot_always_tell_Medical_examination_of_the_intact_hymen, last seen on 23/12/2016.
[xxxvii] Supra note 25, at 56.
[xxxix]Law Commission of India, 42nd Report, 1971, available on https://lawcommissionofindia.nic.in/1-50/report42.pdf , last seen on 23/12/2016.
[xl]State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384.
[xlii]Virender v. State of NCT of Delhi, Criminal Appeal No. 121/2008, (Delhi High Court, 29/09/2009).
[xliii]State of Punjab v. Gurmeet Singh, 1996 SCC (2) 384.
[xliv]Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.
[xlv]Circular No.5701-5800/RB/PHQ dated November 15, 2011 issued by the Commissioner of Police, Delhi, available on https://www.delhipolice.nic.in/home/CAW%20Circulars/cawcircular.htm, last seen on 23/12/2016.
[xlvi]Circular No. 42/2012 dated April 25, 2012 issued by the Special Commissioner of Police (Law & Order), Delhi, available on https://www.delhipolice.nic.in/home/CAW%20Circulars/cawcircular.htm, last seen on 23/12/2016.
[xlvii]Supra note 8.