In the aftermath of the Hathras gang-rape incident, the report by the police that absence of semen was an indicator that rape did not take place reminded us of the loopholes within the existing rape laws in India.
Despite having a progressive definition of rape in India that goes beyond non-consensual peno-vaginal penetration, instances as these are delay tactics. These allegations also have the potential of subjecting the survivor to a degrading line of questioning which shifts the focus away from the perpetrator and fixates on the survivor instead.
By focusing on consent based definitions, expanding the remedies available against sexual violence to all genders and offering procedural safeguards, this article aims to explore ways by which engaging critically with the wording of the law can serve as a strong impetus to larger institutional changes which is centered around the interests of the survivor.
Consent Laws and International Best Practices
In India, the definition of consent is derived from Sec. 375 Explanation 2 of the Indian Penal Code, 1860 (IPC). Consent is defined as “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.” While most international definitions focus on elements of threat and coercion, India’s definition is in line with international best practices by focusing instead on willingness. This is also true for Canada, where elements of the crime of rape are outlined in Section 273 of the Canadian Criminal Code.
There are similarities between the two: both definitions talk about how consent given in a state of intoxication or consent obtained by threat of hurt does not qualify as consent. These definitions are premised on the presumption of non-consent, meaning that it is the obligation of the perpetrator to prove that consent was duly obtained – not the obligation of the survivor to prove that consent was withheld. The intent of consent-based definitions of crime such as rape is to avoid victim-blaming which usually prevents the survivor from approaching the criminal justice system.
However, a look at Delhi High Court’s judgement in Mahmood Farooqui v. State of NCT of Delhi throws light on how this definition of consent is sometimes misinterpreted to place responsibility on the survivor rather than on the perpetrator. In this judgement, the Court stated that assumed consent still constitutes consent and sometimes a ‘feeble no’ by the victim can be construed as a yes – applying the standard of threat and coercion as a constituent element of rape despite the existence of a law in India which cancels any relevance of such considerations.
This also holds true for the Hathras incident where the absence of semen is being argued as the non-existence of rape. This is faulty for two reasons – one, that the definition of rape goes beyond peno-vaginal penetration and two that it is the the presence or absence of consent which determines whether rape has taken place, not semen. Situations like this point out the dual need for definitions which are (a) broad in their interpretation of who a survivor is, and (b) rigid in their understanding of what consent stands for.
The significance of this is evidenced by the statistics evidenced in Sweden. Prior to 2018, rape in Sweden was only considered as an act which was committed by use of force, threat or a criminal act or assault. However, when the definition of ‘rape’ was broadened to ‘sex without consent’ in 2018, conviction rates shot up by 75%. The National Commission on Crime Prevention in Sweden found that this increase in convictions led to greater justice for a wider spectrum of victims. Creating a definition which is all-encompassing yet understandable to a lay-person gives confidence to the survivor that what they experienced constitutes an offence against which they have a remedy. Having a strongly worded definition of consent shifts the onus onto the accused to ensure affirmative consent rather than pressurising the survivor to establish an absence of consent.
Recognising survivors through the letter of the law
Laws in India often use the term ‘victim’ interchangeably with ‘woman’ (also used synonymously with cis-gendered women). For instance, Section 375 of the IPC provides the definition of ‘rape’ as an act which can be committed by a (cis-gendered) man against a (cis-gendered) woman, completely ignoring the existence of victims and perpetrators having other gender identities. This is also true for other sexual offences under the Indian Penal Code as well as under other laws.
With the controversial Transgender Persons (Protection of Rights) Act, 2019 coming into force, trans and non-binary survivors of sexual violence are unable to access the remedies available under the Indian Penal Code, against perpetrators. Even though the Transgender Persons Act recognises and punishes sexual abuse against transgender persons, the punishment prescribed (imprisonment of 6 months to 2 years) is much less stringent than the punishment prescribed for such crimes against women under the IPC (life imprisonment). A key step in ensuring that the legal system is survivor-centric is to build one which recognises that sexual violence has little to do with the gender of the survivor.
In an attempt to recognise victims through the text of the law it is important to draft laws that are gender inclusive. China, for example, through the 9th Amendment to its criminal laws, made rape of a man punishable by law. This is both an example of international best-practices and what they shouldn’t be confused for. While this step broadens the definition of who a rape victim can be, it is not a gender neutral law in its truest sense because it does not take into account trans and non-binary identities. It is important here to make a distinction between gender-neutral and gender-inclusive laws. Following the Justice Verma Committee Report recommending rape to be made a gender-neutral crime, there was stark criticism. It was expressed that in a society which functions on principles of deep rooted patriarchy, having a gender-neutral rape law will increase the power of the already powerful male.
Gender inclusive laws recognize gender identity as a spectrum and acknowledge the vulnerability of these identities to be subject to sexual violence. Gender inclusive laws move away from a heteronormative approach to such crimes. There is a need to move beyond mechanical definitions of such crimes which are rooted in consent, and to recognise all non-consensual sexual activity as a form of sexual violence, irrespective of the gender of the individual. Once we move beyond ascribing certain gender identities as survivors of certain forms of violence in the law, the greater movement towards shunning harmful stereotypes and myths can also be greatly benefited.
Procedural Safeguards for safety of victims
The procedures of institutions in the criminal justice system, especially in Courts are often confusing and complicated. In order to make the system survivor-centric, the survivors should be acquainted to such procedures and should be acknowledged by these institutions. Discrediting the survivors’ experience or victim-blaming often alienates the survivor from the process of justice. Provisions in law like Sec. 53A of the Indian Evidence Act which prohibits character assassination of the survivor help in achieving this objective by assuring the survivor that the system and its procedures stand by them.
It is important to understand that in India, we do not have an alternative justice remedy available to survivors of offences of gender-based violence (GBV), which implies that the criminal justice system is the only recourse for survivors. It is therefore imperative that the criminal justice system is more cautious in safeguarding the interest of survivors. For instance, this can be achieved by developing and implementing an accessible survivor compensation program to account for non-legal costs accompanying a survivor’s journey to justice. For example, New Zealand has a comprehensive compensation scheme for survivors of violent crimes that lead to physical and mental trauma. The compensation is used to support the survivors’ mental health expenses, court expenses and also provide for dependents of the victims (in case the victim is deceased). Such a scheme within the letter of the law, especially in India, would create a more approachable system for survivors of sexual violence.
Obscure interpretations of law in judgements like Mahmood Farooqui are not only possible when the letter of the law is not airtight but also when judges fail to apply the law positively. The Courts have had opportunities to adopt survivor-centric approaches in their interpretations and it’s important for courts to seize these opportunities. An example in addition to the Farooqui judgment is also the one rendered in the case of Independent Thought v. Union of India. The Supreme Court in this case in 2017 had the opportunity to address the acceptance of marital rape in Indian society. Instead, the Court’s judgment only adjusted the age of the victim to the age of majority and reinforced the validity of marital rape as provided under the IPC exception, and held that sexual intercourse by a man with his own wife, the wife not being below 18 years, is not rape (the law earlier allowed for the same exception, the wife not being below the age of 15).
By adopting laws which have a broad and inclusive yet rigid language, the criminal justice system moves towards a survivor-centric and trauma informed approach of dealing with GBV. However, judicial discourse which has taken a fairly liberal approach has also looked at gender inclusion with regard to men and women but has not actively engaged in recognising trans and non-binary people. For example, in Sudesh Jhaku v. K.C. Jhaku, Delhi HC opined that the protection of the law against sexual assault must be extended to men as well.
While stereotypes and myths can continue to cause damage irrespective of strong laws, it is important to reflect progressive and inclusive measures at least in the letter of the law as an effective agent for change. It is necessary to recognise sexual crimes for what they are: bodily violence which can happen to anyone irrespective of their gender and sexual identity, socio-economic standing and marital status. These changes will undoubtedly bring us closer to establishing a survivor-centric and trauma-informed system.
Sruthi Dixit is an intern at One Future Collective’s FemJustice Center.