Who Decides The Definition Of Rape?

Trigger warning: Rape, Graphic violence

Historically, Indian law has defined the penetration of the penis into vagina as ‘rape’. All other forms of penetration, such as anal or oral penetration by penis or penetration by finger or objects, did not get addressed as rape. These offences were covered under a trivial general offence of outraging the modesty of a woman (section 354), or the offence of unnatural carnal intercourse (section 377) which was to essentially criminalize homosexuality.

Both these offences were problematic. Section 354 failed to understand the gravity of the situation. Plus, it was based on patriarchal notions of modesty. Section 377 failed to differentiate between consensual sex and rape. Thankfully, section 377 was scrapped in September 2018, which in turn decriminalized homosexuality in India.

Historically, Indian law has only recognised the penetration of the penis into vagina as ‘rape’.

This left rape victims without any legal redress. This meant that penetrative sexual violence involving insertion of penis or other body parts or objects into anus and the mouth had no legal remedy. There are many cases which have gone without legal redress, and perpetrators have been acquitted or have been given relatively lenient punishment as compared to the gravity of the crime. Some of these cases are-

Maya Tyagi’s Case

Maya Tyagi was travelling in a car with her husband Ishwar Tyagi and two of his friends through Bulandshahar district of UP, when their car broke down near Bhagpat police station. When the men left to get the tyre repaired, a policeman in plain clothes molested Maya Tyagi. When Ishwar saw this, he slapped the policeman, who later returned with 10 other policemen and shot dead all three men accompanying Maya Tyagi. She was then dragged out of the car, stripped naked and paraded through the market place. When she resisted, she was further attacked by inserting lathi into her. Later, at Bhagpat police station, she was tortured more and arrested on false charges of being the “dacoit’s mistress”, a cover-up for the killings.

This case led to national outrage, forcing the UP government to appoint a judicial inquiry by the P.N. Roy Commission. The police justified their actions at the judicial inquiry, on the grounds that Maya Tyagi was sexually promiscuous, since her marriage to Ishwar Tyagi was her second one, and that she and the three men killed were dacoits, deserving of violence. In essence, the police argued that it was legitimate to rape of woman who was ‘of easy virtue’ and a suspected criminal.

The Commission concluded that Maya Tyagi’s husband and his friends were not dacoits, but were falsely framed by the police to cover up the killings. The Commission also found that all the accounts of torture and violence by the police on Maya Tyagi were true. However, since there was no penile penetration of the vagina, the Commission found that the violence did not constitute rape. At the trial as well, the policemen were not charged for the offence of rape.

Sudesh Jhaku Case

This case involved repeated instances of sexual abuse by a father, a senior central government bureaucrat, of his six-year-old daughter. He would take his daughter to a hotel along with his colleagues, consume alcohol, watch pornographic films and indulge in sexual acts. The young girl would also be stripped naked, and he would insert his finger into her vagina and anus. At home, he would sometimes drug family members rendering them unconscious, and then force his daughter to perform oral sex on him. When the mother of the child discovered the sexual abuse, she complained to the police.

Although the man and his friends were initially charged of rape, the Court did not try them under that provision, since there was no penile penetration of the girl’s vagina. This case was symbolic of the injustice to the most prevalent form of child sexual abuse, which typically involves penetration of finger into vagina and oral sex.

Aruna Shanbaug Case

Aruna Shanbaug was a nurse who worked at a dog’s lab in a hospital. One evening, she was attacked by the sweeper, who put a dog chain around her neck to restrain her and rape her. On finding that Aruna was menstruating, Sohanlal choked her with the dog chain, and raped her anally. He also stole her gold chain, wrist watch and cash, and fled. Aruna was discovered fifteen and a half hours later, and found to be brain-dead. She spent the remainder of her life, 42 years, on a hospital bed in a vegetative state until her death in May 2015.

Also read: As A Non-Binary Trans Person, I Was Told I Didn’t Qualify To Be A Rape Survivor

Since there was no penetration of the vagina, the offence of rape was not made out. The Dean of the hospital also chose to not report the sexual violence to preserve Aruna’s honour, who was due to be married. Thus the fear of social stigma and the limitations of the rape law combined to erase the sexual violence from the legal records entirely. Instead, Sohanlal was prosecuted and convicted for theft and an attempt to murder, to seven years’ imprisonment.

Law Reform

For decades, the women’s movement campaigned for law reform, including the need for a broader definition of rape. The focus on penile penetration of the vagina stemmed from patriarchal concerns, and not the experience of sexual violence faced by women.

Finally, in the wake of the national outrage after the brutal Delhi gang-rape in December 2012, the government was forced to set up the Justice Verma Committee. The Committee, among many other significant recommendations, called for the need to broaden the definition of rape. Based on the Committee’s recommendations, the law was amended through the Criminal Law Amendment Act 2013. The amendment expanded the meaning of rape to include acts other than penile-vaginal penetration. The prohibited acts stated in the revised definition of rape in S. 375 IPC are:

1. Penetration, to any extent, of the man’s penis into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
2. Insertion, to any extent, of any object or part of his body (other than penis) into the vagina, urethra or anus of a woman or makes her do so with him or any other person; or
3. Manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of the woman or makes her do so with him or any other person; or
4. Application of his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person.

The focus on penile penetration of the vagina stemmed from patriarchal concerns, and not the experience of sexual violence faced by women

Yet this expanded definition of rape is problematic too.

It refuses to see sexual violence against men as a crime. When a petition was submitted in the Supreme Court (SC), the highest judicial court in India, to make the rape law gender neutral, it dismissed it, and asked the Indian parliament to take a call. Although, the Protection of Children from Sexual Offences (POCSO) Act, 2012 covers sexually abused children (under age 18), both girls and boys. It completely erases woman rape victims that are raped by other women. It gives birth to false ideas like only men are rapists, and only women are rape victims, which are untrue. Some feminists are against gender-neutral rape laws. They argue that gender-neutral rape laws can be used against women. like filing false rape cases against women. It is a very hetero-patriarchal approach to rape.

It doesn’t recognise marital rape as rape. Only 36 out of 195 countries in the world still reject criminalizing of marital rape – India is one of the 36. The UN has repeatedly recommended that India should criminalize marital rape. Marital rape is the most common form of sexual violence reported by married women in India. Among married women (15-49 age) who were victims of sexual violence, over 83% reported their current husband and 9% report a former husband as the perpetrators, according to the National Family Health Survey (NFHS)-4 released by the Union health ministry.

Ironically, when asked about the BJP government’s stance on marital rape, Maneka Gandhi, the current minister for child and women development, said: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty”. The SC has stated criminalising marital rape would ‘destabilise’ the institution of marriage. In other words, even the law views married women as ‘property’ of their husbands, and are (legally) stripped off their individual bodily autonomy when they get married.

Also read: SC Says Protecting ‘Institution Of Marriage’ Is Above Marital Rape

Clearly, we still have a long way to go with expanding the definition of rape in the eyes of law.

Featured Image Source: The Swaddle