The judgment of a Delhi court in the Farooqui rape case has brought back into focus the amendments made to Indian rape laws in 2013. Questions have been raised about the necessity of the law, inclusion of acts other than penile-vaginal penetration within the definition of rape, the meaning of consent and the sentencing regime.
Prior to 2013, the Indian Penal Code (IPC) defined rape as sexual intercourse by a man with a woman without her consent. There were five other circumstances where sexual intercourse amounted to rape, including, for instance, when consent was obtained through deception or threat. Most cases fell within the first limb of the section – sexual intercourse without consent. “Sexual intercourse” was not defined in the IPC, which only stated that penetration was sufficient to constitute “sexual intercourse”.
Through interpretation, courts understood “sexual intercourse” to mean penile-vaginal penetration and further ruled (based on the wording of the section) that ejaculation is not required for intercourse to be rape. Through such interpretation, any other penetrative act, such as oral sex, digital penetration, or penetration by objects were excluded from the purview of the rape law. Hence, in the December 16 case, the insertion of an iron-rod into the victim’s vagina did not amount to rape, although penile-penetration did. Should an act of penetration that is not penile-vaginal be classified as rape? This was an important question before the Justice Verma committee.
Prior to criminalising an act, the policy-maker has to answer the question: what is the harm that the act causes? The aim then is to remedy such harm through criminalisation. In the context of rape, the question thus is: “What is the harm that rape causes?” Courts often viewed rape as an offence against the chastity, virginity and prospects of marriage of a woman. They stated that women feel a “deep sense of deathless shame” when raped and believe that they lose value as persons. Such reasoning reflected various stereotypes and myths about female sexuality, rape and rape survivors.
The Verma committee deprecated such reasoning and suggested a new approach – one that is in tune with constitutional values.
It noted that every woman was entitled to her bodily integrity and to sexual autonomy. Sexual autonomy implies that a woman has a choice to decide with whom to engage in a sexual act, when to engage in such act and the nature of the sexual act that she wants to engage in. Since rape violates such sexual autonomy and the bodily integrity of a woman, it should be criminalised. Consequently, the penetration of a woman’s vagina, urethra, anus or mouth by a penis and penetration of the vagina, urethra or anus by finger(s), object(s), body part(s), is considered “rape.” Acts of cunnilingus and fellatio are also covered within the definition.
Focussing on the violation of bodily integrity and sexual autonomy was the rationale behind expansion of the definition of rape beyond penile-vaginal penetration, the emphasis of which was solely on the procreative nature of the sexual act and the perceived “naturalness” of such an act. Questions still remain of whether rape should be confined to only penetrative acts, since non-penetrative acts such as groping are also a violation of a woman’s bodily integrity and sexual autonomy. Noting this, the Verma Committee had recommended that non-penetrative acts be termed as “sexual assault” and provided lesser punishment than penetrative acts, which would be punished as rape. The legislature, however, did not accept the recommendation and retained the offence of “outraging the modesty of a woman,” which is the provision under which all non-penetrative sexual acts continue to be prosecuted.
Questioning the survivor
Once sexual intercourse/penetration is established, the most important factor to be determined in a rape prosecution is whether the woman consented to such penetration or not. Courts had to decide on this issue based on the facts of the case before them. Since there are generally no witnesses in most cases of rape, the primary evidence is that of the victim. The Supreme Court had in the 1950s ruled that a man can be convicted solely on the basis of the testimony of the victim, as long as her testimony is credible and believable. This was reiterated in the 1990s and in many cases in the 2000s. However, in determining whether to believe the evidence of the victim, courts often relied on stereotypes and rape-myths surrounding rape and rape victims. To assess the credibility of the victim, courts often relied on the “character” of the woman, assessing her past sexual behaviour to determine whether she was a reliable witness.
Until 2003, the Indian Evidence Act permitted the defence to cross-examine the victim to show that she was of an “immoral character.” Medical evidence was also sought on this issue, leading to the intrusive “two-finger test” being conducted on all rape complainants, on the ground that the “test” would indicate whether a woman had had intercourse earlier. Although the provision in the Evidence Act that permitted cross-examination of a victim to establish her “immoral character” was repealed in 2003, other provisions remained which permitted past sexual history to be invoked in a rape trial. These were repealed in 2013, establishing the principle that a prior sexual relationship with the accused or any other man are not relevant in rape prosecutions.
Courts also often focussed on the behaviour of the survivor prior to, during and after the incident. Victim-blaming tactics were used by the defence and approved of by courts. An oft-cited rape myth was that a woman will definitely resist an attack on her “chastity” and in the process will injure the man or incur injuries on her body. Consequently, courts often required evidence of physical resistance in order to believe the claim of non-consent by the victim. Doctors in their medical examination noted these signs of injury and the lack of such injury was taken to imply consent. The Supreme Court since the 1990s repeatedly instructed courts not to seek resistance, noting that a woman may not resist for multiple reasons, including perceived danger to her life, fear etc. However, some courts (including the Supreme Court in a few cases) insisted on evidence of resistance, although the IPC or the Evidence Act did not require it.
The Verma committee reasoned that it was necessary to define the term “consent” to provide clarity and guidance both to parties concerned and to courts. The committee suggested a definition of consent, which has now been incorporated in the IPC: A woman consents to a penetrative act only when she unequivocally communicates her willingness to participate in a specific sexual act. The communication need not necessarily be verbal. It may be through gestures, or any other form of non-verbal communication. Physical resistance is not required to signify non-consent.
Is the law one-sided? If the woman actually consented, but claims that she did not, how does the accused prove it? It is important to note that the law presumes that the accused is innocent. It puts the burden on the prosecution (the victim here) to show that she did not consent. This has to be proved beyond reasonable doubt. If the defence is able to create a doubt about the sequence of events, the accused is entitled to be acquitted. In a criminal proceeding, be it for rape, murder, theft etc., such doubt is primarily created during cross-examination of the complainant/victim and other witnesses. The defence attempts to show contradictions and loopholes in the victim’s version when she is cross-examined. Only if the victim is able to provide a consistent narrative, may the court believe her testimony. The law only prevents the accused from raising irrelevant facts (such as sexual history) and other victim-blaming tactics during the trial.
Another question often raised is what happens if the woman consents and then subsequently withdraws it. And what about cases of “breach of promise to marry?” Consent is determined at the point when penetration occurs. If the woman consents to the penetrative act, but withdraws consent during the act, and the man continues, the act amounts to rape from the instant that the woman withdrew consent. However, if the woman consents to the penetrative act, but changes her mind after the act is completed, it is not rape, unless it is proved that the woman was deceived into consenting.
Over the last few years, cases of “breach of promise to marry” have been coming up before courts. The perception is that the 2013 amendments criminalised such a breach of promise. They did not. If a man convinces a woman to consent to a sexual act saying that he will eventually marry her, but goes back on his promise, the act does not amount to rape. What would make it rape however, is if the prosecution is able to show that the man did not ever intend to marry her and deceived her into consenting. This has always been the position. What changed in 2013 is that the police refusing/failing to register a FIR of rape was made an offence (Section 166A, IPC). This appears to have led the police to register as rape even cases that are not rape, thus further perpetuating the myth that the rape law is being misused by women.
Prior to 2013, the IPC provided for a minimum sentence (seven years in non-aggravated cases and ten years in aggravated cases) and provided discretion to judges to reduce the sentence below the minimum by providing “adequate and special reasons.” Studies, including mine, indicated that courts often used irrelevant factors to reduce the sentence below the minimum. Hence, the 2013 amendments removed this discretion that judges had to reduce sentence below the minimum.
Further, following a deterrence framework, sentences were increased for certain aggravated forms of rape, including gangrape. If one were to believe in deterrence, the changed sentencing regime should have reduced sexual violence. However, there are enough studies indicating that deterrence does not work. The primary aim of the 2013 amendments was to make much needed changes to the definition of rape and to improve women’s access to the legal system. The amendments to the Criminal Penal Code and the Evidence Act were aimed at ensuring that women are not re-victimised when they approach the legal system after an act of rape against them. The amendments sought to remove irrelevant medical examinations and unnecessary questions that women were asked during cross-examination, and to facilitate better investigation and trial in rape cases.
That sexual violence and issues of consent have become topics of discussion over the past three years is testament to the success of the post-December 16 protests and the law reform movement that followed. Higher reporting rates of one of the most under-reported crimes is a proof of the law’s success. Ultimately, as the Verma committee noted, it is only when we begin to respect women’s choices will sexual violence reduce. That we continue to ask questions like “what if the woman consents and then changes her mind” or that we refuse to criminalise marital rape are indicators that we have a long way to go before we succeed in creating a less patriarchal and violence-free society.
Mrinal Satish is an associate professor at National Law University, Delhi. He was part of the research team that assisted the Justice Verma Committee. His forthcoming book: Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press) discusses and analyses rape adjudication and sentencing in India.