By- Komal Yadav
(Faculty of Law, University of Delhi)
Introduction
Rape is a growing problem in our society. In most jurisdictions, rape is defined as sexual intercourse, or other forms of sexual penetration, committed by a perpetrator against a victim without their consent. The term rape originates from the Latin term rapere (supine stem raptum), which means "to snatch, to grab, to carry off". In Roman law, the carrying off of a woman by force, with or without intercourse constituted “raptus”. Rape was first introduced in the Indian Penal Code in 1860. Section 375 of the IPC made punishable the act of sexual intercourse by man with women without her consent or if it was done against her will. The act of doing sexual intercourse by a man also constitute rape when the consent of the women has been obtained by putting her or any person whom he or she is interested, in fear of death or of hurt. Also, sexual intercourse with or without her consent when she is under 18 is considered rape.
The Stigma and Blame Attached to Rape Survivors in India
Law tells us that rape convictions can be quite difficult to prove in a court of law and they are very rare. In order for a conviction that signifies signs of struggle, physical sign must be present and physical signs means that she resisted the act and did not give her consent to have sexual intercourse with him. Those physical signs have to be injuries, bruises, broken bones, lacerations and many such marks.
Rape is a non-bailable offence described under the Indian Penal Code but people do get bail because of the lack of evidence and some accused are protected and even sheltered by the politicians, police, or lawyers. In India, women are raped in every sixteen minutes. The police registered 33,658 cases of rape in 2017. According to many human rights activists India is the most dangerous country in the world.
A Rajasthan state legislator in India blame girl’s uniform and asked for a ban on allowing girls to wear skirts as uniforms. A minister in Madhya Pradesh burned all jeans and t-shirts. The Puducherry school Education minister after this incident said that girl's uniforms should be changed to protect them with an overcoat.
The Court relied on rape myth and reasons for its decision
Several explanations and observations are made at the time of a trial, which raises question on character of the victim. On June 22 the Karnataka High court granted anticipatory bail to a rape accused who raped a woman on the false promise of marriage. In the bail order, the judge observed that it was unbecoming of an Indian woman to fall asleep after she ravished. The accused moved to the High court under section 438, Cr.P.C. for advance bail on being accused of committing various offences under section 376, 420, 506 IPC and section 66-B of IT Act. Further, the court commented that the victim went to the office late and did not resist having drinks with the accused. In many cases the Courts have burdened or blamed rape victims for the mishappening. This is not first time that the court expects some usual behavior from a woman after she has been raped.
In 2016, the Supreme Court acquitted the convicts and did not believe that a woman has been gang raped. One of the observations of the Hon’ble Supreme Court was that when the victim screams and fights back only then it is considered to be rape. On 11 October 1997, a domestic worker lodges a complaint of rape at the Sampangiramanagara police station in Bengaluru. She said that a group of men had pulled her into an autorickshaw when she was returning to her home and took her to an auto garage, and raped her. She said that they often harassed her, when she walked home after work. Nineteen years later, the Hon’ble Supreme Court has found that the woman's complaint of being raped is false and ruled that a sex worker cannot allege rape if denied payment. The Supreme Court made several comments about the victim’s behavior that raised concern. The Supreme Court said that the victim was sexually active and this shows that she was a sex worker and she did not scream. Supreme Court also said that she seemed too submissive and her behavior after she was raped did not match what the court felt normal behavior should be under such circumstances. “Her conduct during the alleged ordeal is also unlike the victim of forcible rape and betrays somewhat submissive and consensual disposition” the verdict reads. The supreme court also commented on the complainant's behavior after she was raped, calling it unusual behavior. It said that instead of hurrying back home in a devastated, humiliated state, she stayed back in and around the place of occurrence, and she talked about the incident from people whom she claims to have met in the late night, returned to the garage, and look at the broken glass bangles discarded litter, etc.
Most people, judges, society believed rape as a loud, violent, glaring event where the victim must always emerge with physical injuries as evidence of the assault. 95% of sexual assault is committed by the people known to the victims and it is not always an attack by an unknown person on the road. The offence is usually done by someone whom they trust a lot. The fear of being killed affects the victim's reaction to threats. The response may vary vastly from the normal behavior ideal of how they should react- scream, call for help, do everything they can to avoid this heinous crime.
In fact, many accounts of women who survived rape suggest that they did not try to avoid rape, but try to avoid a worse fortune-being killed. There is no certain formula for how a victim should behave during or after the assault.
Mathura rape case
Mathura, a teenage girl fell in love with her employer's nephew Ashok. When she said this to his family that she and Ashok wanted to marry, her brother filed a police complaint alleging Ashok’s family had kidnapped his sister and forced her into prostitution. On March 26, 1972, Mathura came to the police station to give her statement. Police recorded the statement of her aunt, brother, and Ashok that night itself. Constable Tukaram and Ganpat asked Mathura to stay back at the station, they locked the doors, turned off the lights, and raped her.
Mathura filed a complaint against the constables. But the district court acquitted the constables. Mathura appealed to the Bombay High court which reversed the decision of district court and sentenced both the constables to a few years in jail. However, the Supreme court acquitted the accused again.
The court gave three explanations for acquitting the constables and for not believing Mathura. The court stated that she had no physical injuries, did not scream, was silent inside the police station while she was being raped, and a medical test proved that she is habitual to sexual intercourse. The judges also said that consent can be divided into two categories- implied and express. And these three observations were enough to conclude that the consent of Mathura was implied and she willingly had sexual intercourse with the two constables. The two constables threatened Mathura to file a case against all of them and to make sure that all of them are held behind the bars if she did not do exactly what she is said to do. So they did not have to worn out her into submission. She was already devastated.
After widespread outrage, it took ten years to understand for the Supreme Court, why Mathura did not fight back, scream off two adult upper caste men in police uniform while she was being raped inside a dark police station. It resulted in the amendment. The major amendment in the criminal law ACT of 2013 that followed the “Nirbhaya case” (the gang rape and death of a physiotheraphy student in Delhi in 2012).
Many police officers blame rape survivors. According to many police officers “fashionable or revealing clothes to having boyfriends to visiting pubs to consuming alcohol to working alongside men as the main cause for instances of rape”. Police officers did not register FIR and made fun of the complainants.
In Kanpur, the 16-year-old girl alleged that she came to the police station to file a complaint of molestation that happened with her nephew, the police inspector summons her to the police station during an odd hour and asked her to dance in front of him. Many police officers refused to register and investigate the complaint or even suggested to drop their complaints to avoid potential shame in their communities.
Hyderabad’s Veterinarian case- Police inactivity or Exchange of fire
In November 2019, the gang rape and murder of a 26-year-old veterinary doctor in Shamshabad, Hyderabad, sparked widespread outrage across India. Her body was found burnt in Shadnagar on 28 November 2019, the day she was murdered.
Police could have saved her but police’s inaction and their behavior towards Disha (victim’s sister), and her father destroyed an innocent life. Disha went to the RGIA police station, along with her colleagues to file a missing person report. The police subjected them to humiliating comments, instead of assuring them. In place of registering a Zero F.I.R, the police asked if the victim had a boyfriend, suggesting that she had absconded with him. They also refused to register a F.I.R. saying that the case did not fall in their territorial jurisdiction. Police could have saved her if they had taken strict action on time. The police did not explain for, either the delay in filing the F.I.R. or for their misstep in locating victim’s body. Later, three policemen were suspended for the desolation of duty.
Conclusion
For many in India, rape relinquishes the survivor as a grouse of "shame". Indian criminal law fortifies this idea of modesty. It narrowly describes rape as exacting penile-penetration, and other offences come under crimes concerning the enormity or insult to the modesty of women. The government should establish various provisions for sensitive screening for sexual violence by health experts, and adopt standards for maintaining or protecting the dignity of rape survivors. The medical opinion whether a rape survivor is habitual to sexual intercourse or not should be eliminated. The country should provide resources for rape survivors through which they can access medical, legal, psychological, and other services. The policemen who refuses to register a complaint should be punished strictly for failure in performance of their duty. The Indian parliament should criminalize the full range of sexual assault with convenient punishments. The government officials who deal with rape victims should be properly trained on how to treat survivors with dignity and respect.
References
1. Oxford Dictionary of Law for the term Rape (page no. 508)
2. The Indian Penal Code, 1860
3. Mathura rape case (Tukaram and Anr. v. State of Maharashtra, A.I.R. 1979 SC 185)
4. Unnao Rape Case, retrieved from indiatoday.in
5. Hyderabad Veterinarian Case, retrieved from thehindu.com
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