Historians and sociologists have extensively chronicled the backdrop against which rape occurs and how societies have dealt with the victims and the accused. That is, both the political economy of rape, and the nature of the laws, supposedly, created for redress. Extensive literature covers the circumstances and motivations behind this gross violation of a human being’s right – be it as a systemised and deliberate strategy of civil war and military aggression (Bosnia, Rwanda, Partition,); random acts of violence or rape as a part of theft and crime, including domestic violence. Motivations have been and remain both complex and intertwined. In Rwanda, for example, research shows not only did the Hutu Militia rape Tutsi women, but often raped their own “Hutu women” as well. While causes of rape are different, there are some common threads – that point essentially to the central idea that society views women as ‘property’ and “objects” to be acquired, traded and raped. Unfortunately, and perhaps more dangerously, laws made to assure that justice is done also betray the same theme – i.e. a woman is not seen as an equal – but rather a commodity or property, even by the justice system, when she is most grossly violated.
This is nowhere clearer than in a cross cultural and historical analysis of rape laws in different countries. Here plenty of documented evidence supports the idea that redress was possible but attempted only when violating women was seen as a “man’s property” being violated. In Babylonia, for example, if a virgin was raped she was considered blameless and her attacker was slain. But if a married woman was raped, both she and her attacker were thrown into the river to drown. In medieval Israel, “If an unmarried woman was raped within the city walls, she was stoned to death with her attacker. (Logic: if she hadn’t consented she would have screamed and been heard). If it happened outside the city walls, the victim was considered guiltless; Yet the women involved continued to face certain consequences: 1. If not betrothed, the rapist was ordered to pay her father 50 silver pieces in compensation for what would have been her bride price, and the pair was commanded to wed 2. If she was betrothed, it became null and void and her price was marked down (damaged goods/sale price).” More recently, those analysing rape laws in Victorian England point in the same direction. One academic writes, , “Rape entered the law books through the back door, as a property crime of man against man, with the women viewed as the property involved. Women were wholly owned subsidiaries of men in ancient times – first owned by their fathers, and then by their husbands. Rape was, therefore, the theft of virginity, and embezzlement of a man’s fair price for his daughter”.1 Another scholar covering laws in Victorian England states, “By extending legal protection to only virgins, early statutory rape laws served as a tool to protect common morality rather than penalise men for violating the law”. Historically thus Rape laws remained focussed on protecting some “collective” chastity/morality (i.e. virgins, in particular)’ of a society – but never an individual woman’s safety and dignity.
The aftermath of the Damini rape case (where a young girl was brutally gang raped and murdered in Delhi) forces us to answer questions about the biases in our rape laws and how they entirely reflect India’s inability to come to accept her women as an equal. Indeed, one must not forget that it took a custodial rape (rape in a police station) to bring out an amendment regarding the admissibility and indisputability of the victim’s claim that she did not consent! In the Mathura rape case, where the rape occurred in the premises of a police station, the initial judgment turned out to be in favour of the accused. It was only on appeal that the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused to one and five years of rigorous imprisonment respectively. The Court held that “passive submission due to fear induced by serious threats” could not be construed as consent or willing sexual intercourse. Yet, when the appeal was made to the Supreme Court, the Senior Counsel while defending the accused Policemen divided the concept of consent into two i.e. express and implied consent. The Supreme Court acquitted both the accused and held that the Mathura rape case had “raised no alarm”. Sadly, it was not until the Criminal Law Amendment Act, 1983 that the law stated that if the woman/ girl says that she did not consent to the sexual intercourse, the Court shall presume that she did not consent! Still human rights activists and women’s groups will endorse that the medieval concept (remnants of ancient laws) of “implied consent”, “need for corroboration” “character of victim”, “hue and cry”, continue to make a mockery of the criminal justice system in case after case. Why is it that our laws need to find out “if she was a good women”, “did she consent (not realising, that women can only consent to sex, not rape)” and perhaps ironically, the State tends to ask if she has the courage to taken on a skewed justice system that is already heavily biased against her.
While ‘official laws’ reflect bias – ‘unofficial /alternative’ systems of justice are simply a cauldron in which the rape victims must jump soon after. It is widely known that the Khaps in Haryana responded to series of rapes by suggesting early marriage, and endorsing honour killings, rather than protecting a girl child, reporting the crime and bringing the perpetrators to justice. It is now unfortunate that we in India cannot distinguish state apathy from state complicity. Indeed, at every point that the Indian State interacts with the Indian girl child or the Indian woman, it fairs no better than the age old attitudes she faces at home or in her community.
A women’s status in a society is directly related to access to education, her right to vote, and her ability to be a productive member of her family and society. Unfortunately in India, even when she beats the odds and acquires those things, her value seems to go up, not intrinsically, but as property, valued, devalued in dowry and other social ills. Indeed, Indian society is far away from de-commoditising and de–humanising women, and it is a known fact that cultural reforms are a painfully slow process that takes generations, unprecedented political will and game changing laws. Rape victims, of course cannot wait for this long. Neither can we rely on individual humanness of men, who will continue to use this as a weapon of crime, violence, subjugation and pleasure. What we can do is pin the accountability on the State to force changes in laws, police and the justice system that make the subversion of the system in the aftermath of a rape impossible and create deterrence systems that make the potential perpetrators fear for their freedom and future. It is the only way the Indian State can show the women of India that while the Indian society has been long biased against her – the Indian State can do better.