CENTRE for POLICY ANALYSIS

CENTRE for POLICY ANALYSIS

“Social progress can be measured by the social position of the female sex” - Karl Marx

Gender


CONSENSUAL UNLESS PROVED UNCONSENSUAL - THE RAPE RAP


In a society like ours, where only a few rape survivors decide to step forward given the stigma attached to it, the plight of the survivors is endless as they are subjected to scrutiny throughout the trial. To make it even worse, the process of the justice system lasts a couple of years which keeps them in a vicious cycle, while a few amendments have been made to lessen the sufferings of the survivors which is often prompted by cases that shook the entire nation. In this paper, we shall discuss the rape culture in India both pre and post amendment and how it has helped the rape survivors in the process of getting justice.

RAPE AND CONSENT

Statistically speaking, as per the data obtained by the National Crime Records Bureau, India is ranked in the last rung of the ladder in terms of the incidents of rape implying that India is not in such a bad situation after all. But if we were to believe this data, we would be fooling ourselves as it cannot be taken to be absolute.

The notion of rape has been discussed in the most elaborate manner in the IPC in India, Section 375 and 376 define the offence and the punishment respectively. "Rape is one of the most serious sexual offences, and perhaps even the paradigmatic sexual offence". However, the interpretation of law had limited rape in a narrow manner as it failed to get within it's ambit the actual extent of this sexual offence. It was only later, that all forms of forcible penetration were included under section 375 of the IPC.

What makes rape and other sexual offences grave is the absence of consent. It is a cardinal rule that consent must always be obtained prior to the act. The notion of 'consent' construed in rape cases in India is presumed depending on arbitrary criteria that are interpreted by the court in a set questionable standard.

EVIDENTIARY PRESUMPTION - A REFLECTION (PRIOR TO THE AMENDMENT)

The problem faced while assessing a sexual offence in court was how to reach to the conclusion of it's commission because in majority of the cases, there are no witnesses and the primary evidence can only be obtained from the survivor itself. Back in 1950's, the apex court observed that the testimony of the survivor is sufficient to convict the accused, provided it is credible and believable. But in order to determine the credibility of the survivor, the court gave weightage to the sexual history of the survivor. The survivors were subjected to questionable assumptions that were raised both in trial and during the cross- examination. The judicial interpretation of consent basically showcases the patriarchal bias among the judges. The court asserts that women who lead "a certain lifestyle", don't necessarily take any precautions to avoid such encounters. In the case of Rameshbhai Chhanabhai Solanki v. State of Gujarat, the Judge made statements like, "she was habituated to the intercourse as referred in the medical certificate", "spinster", and how her life was "spoilt." The movie 'Pink' attempts to uncover this set standard of the courts when it comes to interpreting consent.

Building upon this secondary victimization, even the medical evidence which involved an uncomfortable test to prove consent, violates woman's privacy. Referring to the 'two- finger test' which is conducted by the doctor who thereby inserting two fingers into the surviror's genitalia determines whether the survivor habituated to sex or not. The test is very callous to ascertain sexual assaults when more scientific alternatives are available given the advancement in techniques in medical sciences. In the case of Lillu v. State of Haryana, the court observed that even if the report is affirmative it just cannot give rise to the presumption of consent by the survivor. This test was banned in 2013 as per the guidelines issued by the Union Health Ministry for being derogatory and highly insensitive to the women.

The courts have also laid emphasis on the physical evidence of resistance by the survivor for ascertaining consent, which is to say that lack or absence of injury would count as submission. Reliance on this evidence is unjustifiable as the non- resistance in most cases stems out of reasons like threat to life/ fear etc. In the case of Tukaram v. State of Maharashtra, the SC ordered that the absence of any physical signs of injury on her body signified her submission to the act.

IMPACT ON THE EVIDENTIARY VALUE- (POST AMENDMENT)

Before the amendments came into effect, it seemed like the rape laws favored the accused. The first major amendment came following the infamous Mathura rape case. The court concluded that "the alleged intercourse was a peaceful affair" since the rape survivor was of "loose character" who was habitual to sexual intercourse. This view of the court was widely contested and more so by the feminist groups felt that rights of the women had been negated in the face of this judgment. In 1983, a few changes were made in the provisions governing rape- section 376 A- D were added to the IPC and section 114A was inserted to the Indian Evidence Act. Under section 376 of the IPC, the punishment for the offence was enhanced. A solid achievement was the addition of section 114A which stated that if the survivor says that she did not consent to the sexual intercourse, the court shall presume that she did not consent as a rebuttable presumption.

An important aspect of medical examination was later laid down in the case of State of Karnataka v. Manjanna, which said that the doctors should examine the rape survivor before legally filing a complaint as delaying the process of examination directly affects the evidentiary value and impacts the verdict accordingly. Even though the law requires the test to be performed within 24 hours, in the case of Bhanwari Devi, the vaginal swabs was taken 52 hours after the incident on completion of necessary formalities. Furthermore, section 146 was added to the Indian Evidence Act, which disallowed questions asked during cross- examination about the survivor's sexual history or sexual conduct and other private matters which invaded her privacy. This was done keeping in mind that the rape survivor is subjected to re-victimization. Moreover, the answers obtained couldn’t be used to determine consent in the present case as it is not sensible to equate the two.

The most recent amendment with respect to the rape laws in the country was made in 2013 after the recommendations of the Verma Committee which mainly expanded on the meaning of rape under the IPC. The committee also elaborated on the concept of consent and police reforms. A new provision was added which said that lack of physical resistance shall not amount to consent, this position had already been established in the Mathura rape case but the courts continued to rely on the same as there was no formal legislation defining it. Post the Nirbhaya rape case, numerous additions had been made but this paper has focused on the amendments with respect to the change in the methodology of obtaining evidence only.

POTENCY TEST OF THE ACCUSED- CRY FOR FREE TRIAL

The potency test is not a must as per law, but is dependent on the state or the police guidelines So the law really doesn't allow the accused any option to escape the potency test. The test basically establishes whether the accused is physically capable of performing a sexual act or not. However, there is no clarity as to how the tests are carried out and what is the procedure that has been adopted to establish it. In the case of State v. Jai Bhagwan Pandla, the court expressed its disappointment while acquitting the accused due to the manner in which the potency test was conducted which couldn't be used as a conclusive proof in this case.

"In the past, suspects may have even occasionally been called on to masturbate while the medical jurisprudence textbook advises against this." We go by the maxim 'innocent unless proven guilty', if the accused is being subjected to such arbitrary test, it is in complete violation of his privacy just like the two finger test which was scrapped off for the rape survivors. Also, the court doesn't completely rely on the outcome of this test as the test is dependent on n number of situational factors. Besides the definition of rape has been expanded, it is not necessary to prove penetrative sexual intercourse for it to amount to sexual harassment. The potency test has been conducted in a number of high profile cases, like that of Asaram Bapu who was 72 years of age, at the time of the accusation. The law is still operative but it is often argued that it should be used in cases only where impotency is the primary defense of the accused.

CONCLUSION

The progress made in the rape laws in India is commendable for the sole reason that after years of struggle, the voice of the survivor is being heard. Section 114A has acknowledged the hardships of the rape survivor and gives them the upper hand as the burden of proof is placed on the accused. Even so, the court can still ask for further corroboration by the survivor provided it is backed by a well founded reason. Hence, the change in policy conveys a balanced regulation which shields the survivors of such heinous crimes.

REFERENCES


1. Victor Tadros, "Rape without consent", Oxford Journal of Legal Studies, Vol. 26, No. 3 (Autumn, 2006): 1; https://oup.silverchair-fcdn.com/oup/backfile/Content_public/Journal/ojls/26/3/10.1093/ojls/gql016/2/gql016.pdf?

2. Rameshbhai Chhanabhai Solanki v. State of Gujrat, 3 SCC 400 (2012)

3. Lillu v. State of Haryana, 14SCC643 (2013)

4. Tukaram v. State of Maharshtra, 2SCC 143 (1979)

5. N Jagadeesh, "Legal changes towards justice for sexual assault victics", Indian Journal of Medical Ethics,(2016-11-30): 1; http://ijme.in/articles/legal-changes-towards-justice-for-sexual-assault-victims/?galley=print

6. "Comparative Analysis of Rape Cases in India", Johns Hopkins Krieger School of Arts & Sciences; http://krieger.jhu.edu/woodrowwilson/wp-content/uploads/sites/3/2015/08/Siva-Sriniva-Rohini-Final-Paper.pdf

7. "Anti Rape Laws in India: A Review", eSocialSciences.org; http://www.esocialsciences.org/essResearchPapers/showArticle.aspx?qs=1Hpf6nexHrWMB7N0kGoH5NS4y739ErjLOY5pZRishsawTeHIDZu2GpiJIQltuhUjjE5QNorCuKvAcuEwJcI27PuLuH/K1xrnkmXAtWrPaoFnwjonSwrosD5G0Gp8kp+y

8. "All that you wanted to know about the potency test and were afraid to ask", thenewsminute.com; http://www.thenewsminute.com/lives/258