#India- Chastity, Virginity, Marriageability, and Rape Sentencing #Vaw  #Justice #mustread

EPW Vol – XLVIII No. 02, January 12, 2013

The vigorous public discourse following the recent brutal gang rape and
mutilation of the 23-year-old in Delhi is a positive sign but hopefully the
demand for quick solutions will not ignore the complexities involved in
dealing with all forms of violence against women. There are also other
connected issues that require urgent attention including the description of
a rape as a “state worse than death”, making out certain acts of violence
to be rare aberrations when they are depressingly routine, ignoring the
sexual violence within families and the need to make the legal system
accountable to the female citizenry.

Now that the gang rape victim christened as “Nirbhaya”, “Braveheart”,
“India’s Daughter”, etc, by the media, has finally been laid to rest,
despite the Delhi administration’s best efforts to prolong her ordeal until
the protestors at India Gate were worn out, perhaps it is time to address
deeper concerns that surround the issue of rape in public discourse.

Though many of us would like to change the terminology from “rape victim”
to “rape survivor”, unfortunately that cannot be done in her case since she
did not “survive”. The brutal injuries inflicted on her body during the
gang rape took her life. One is therefore constrained to label her a
“victim” despite her heroic struggle.

Had she survived (as many of us wished she had) she could have been the
mascot for the movement against violence perpetrated on women. She might
have come out in the open in the wake of the massive support she received
across the nation, and by this very act made a strong statement to the
world at large that a rape victim does not have to survive like a *zinda
laash* (a living corpse), a title awarded to rape survivors by our
parliamentarians. Her fight for justice would have become a beacon of hope
for many others. Her struggle for justice may even have helped to lessen
the stigma attached to the term “rape” itself in public discourse and her
struggle might have inspired many youngsters to come out and report
incidents of sexual assault. But that was not to be. This mantle has now
fallen upon the protestors and the political leaders who collectively mourn
her death.

*Not a ‘Living Corpse’*

Rather sadly, the wishes of those demanding the death penalty to avenge her
rape seem to have been fulfilled, without any major changes taking place in
the rape law, since it has become a case of “rape and murder” and the
“rarest of rare” maxim can be applied to it. But if the death penalty is
all that we are seeking, then her heroic struggle would be in vain. Her
death is not something to be proud of, because death is not what she wished
for. In the few moments in which she could express her wishes after the
traumatic incident, she had clearly indicated that she wanted to live. Live
life fully, not as a mere shadow of her earlier self, like a “living
corpse” – complete her training, earn and support her family. I hope after
this, all of us will refrain from referring to a survivor as zinda laash* *or
describe rape as a “state worse than death”. With death one reaches the
point of no return, but as long as there is life, there is hope. An
incident of rape, not even a brutal gang rape, ought not to have snuffed
out the hope of a 23-year-old, eager to scale new heights. One can only
hope that this is one lesson the nation has learnt through this episode.

The nationwide protest which this incident helped to ignite and the clarion
call for reforms in the rape law are positive signs. But for the sake of
easy and quick solutions, hopefully the discourse will not flatten out the
complexities involved in issues concerning violence against women and will
help us to seek answers to complex questions which do not get resolved
through retributive justice measures such as the death penalty, public
hanging, castration or instant “justice”. We need to keep reminding
ourselves that the girl died due to the brutal attack on her with iron rods
which damaged her intestines and led to the poisoning of all her vital
organs. Nothing can be more brutal than this. When we describe rape as
“worse than death”, we need to remind ourselves that insertion of objects
such as wooden splinters, iron rods, glass bottles, knives and swords into
the vagina causes far more serious damage to the female anatomy, but
unfortunately it does not warrant the same kind of punishment as rape since
it is not perceived as a “state worse than death”. In cases of brutal
sexual assault on children one can observe this type of violence. One can
also notice this kind of mutilation of the female body during caste and
communal violence such as that during Partition, the Gujarat carnage and
atrocities on dalits (like the Khairlanji rape and murders in Maharashtra).
Therefore, we need to move away from the patriarchal premise of vaginal
purity while we are addressing issues of sexual assaults and stop awarding
a special status for peno-vaginal penetration as compared to other types of

Vaginal penetration is only one of the many ways in which women are
chastised and humiliated. Acid attacks, slashing of the face, stripping and
parading, dragging women to the ground and kicking them on their abdomen,
etc, are some of the other violent ways in which women are shown their
place in public. Even while the protests were going on in most of the major
cities, a young student in a local college in Mumbai stabbed his ex-girl
friend several times and then stabbed himself. While the boy died
instantly, the girl succumbed to her injuries after a few days. This
violence is no less gruesome than an incident of gang rape.

*Routineness of Violence*

If women’s lives are endangered in so many different ways, then castration
of the rapists cannot give us the answers that we are seeking as it
reinforces the same old value system that continues to view rape as a state
“worse than death”. It is too short-sighted and serves only to lay the
emphasis back on the patriarchal premise of the sanctimony attached to
vaginal purity and does not help us to move forward. We would then be
forced to move on to other barbaric and medieval forms of retributive
justice like cutting off the hands of all those who indulge in heinous acts
of violence against women. This demand obscures the routineness of the
violence that takes place in our society, in our homes, in our private
spaces and makes it seem like a rare aberration.

One wonders whether the protests would have been on this scale if they had
not raped her but only assaulted her and her male companion with iron rods.
Is it the titillating aspects attached to a gruesome gang rape that arouses
feelings of grief and vengeance? The brutal manner in which the girl was
attacked is indicative of a deep-rooted hatred towards women, particularly
towards those women who dare to cross the boundaries. They are seen as
“free for all” or rather, everyone thinks that they are the custodians of
women’s morality and that they have a right to “teach them a lesson”.

In some recent cases of gang rape the girl was out with a male companion.
Is the outrage against her an indication of the societal desire to curb any
expression of sexual freedom among young, unmarried girls? Recently, in
Bengaluru, a law student of the prestigious National Law University was
gang raped when she was in a lonely spot with a male companion. The doctors
who examined her were more concerned about the elasticity of her vagina
than finding forensic evidence of the gruesome crime. In 2010, a young
16-year-old Hindu girl travelling in a bus with her Muslim friend on the
outskirts of Mangalore was dragged out of the bus by members of an
extremist Hindu fundamentalist outfit and taken to a police station. A case
of rape was foisted against her friend. Her father was called to the police
station and was humiliated. That night the girl committed suicide.

It is these incidents that make us wonder whether the gang rape in Delhi is
meant to be a message to all youngsters not just to not venture out in the
dark but to not venture out with male companions. It is the same message
that the parents and the community give their daughters. It is the same
message that the moral brigade has been communicating through the raids on
young couples in Mumbai under the direction of Maharashtra’s Home Minister
R R Patil, who has now recommended the death penalty in rape cases. Perhaps
he and most protesters out on the streets in India today are unaware that
around one-third of all rape cases are filed by parents against the boy
concerned when their daughter exercises her sexual choice and elopes. Such
cases will only increase in the years to come as the recent enactment of
the Protection of Children from Sexual Abuse Act has raised the statutory
age for consent to sexual intercourse from 16 to 18 years and all
youngsters who are sexually active are prone to harassment through
collusion of the family and the state. These types of cases have led to the
use of phrases like “genuine cases” and “false cases” among the police,
prosecutors and judges. The recent Act has also shifted the burden of proof
to the accused which is an extremely dangerous proposition in the context
of human rights and rights of the accused within the criminal justice

*Male Role Models*

There is another question which is worrisome. Is it possible to examine
this issue only within the framework of men versus women or, more
particularly, middle-class women versus lower-class men? The girl was not
alone, she was travelling with a male companion. He, too, was beaten and
thrown out. If he had lost his intestines in the scuffle that followed,
what would the public response be? What about the death of a young
19-year-old boy of Mumbai who lost his life while protesting the lewd
comments being passed against a girl from his housing society? Should not
his murder be avenged by awarding the death penalty to the accused? In
another well-publicised incident that took place about a year ago in
Mumbai, two young men, Keanan and Reuben, were brutally and fatally
attacked when they protested against the sexual harassment of some girls in
their group. Why is the loss of their lives less gruesome a crime? These
men were also role models to be emulated by the youth of today. We
desperately need such bravehearts who will stand up for women’s dignity in
public places because in most cases the public just looks on while the girl
is molested, stripped, raped and dragged naked in full public view. So it
is not just women, but also men who defend women, who are subjected to
brutal attacks.

*Wrong Popular Perceptions*

Despite all the positive impact of the campaign revolving it, the Delhi
gang rape incident does not foreground the different types of violations
that take place in our society. Rather, it reinforces the popular
perception that rape takes place in lonely places, late at night, by
strangers and that rapists are brutes or psychopaths who deserve to be
hanged. But most rapes take place in the privacy of our homes, in our
schools. Rapes by family members are seldom reported. They come to light
only when the girl is found to be pregnant and by then it is far too late
to have an abortion. The girl is then sent to a government run shelter home
where she languishes while her child is put up for adoption. The risk of
sexual abuse is even greater in these homes as some recent incidents that
have been reported in the media indicate.

In a case decided by the sessions court in Mumbai last month, the father
had been raping his daughter for two years. When the child confided in her
mother and the mother confronted her husband, she was silenced by threats
of desertion. It was only when the maternal uncle was alerted that the
complaint was registered. The case resulted in conviction only because the
uncle testified, but the mother refused to come to court and depose. In yet
another case of a father raping his daughter, the mother attempted to
register a case thrice and each time was sent back as the police refused to
record her statement. Finally, the case could be registered only after the
intervention of a local social worker. What should be the punishment for
fathers who violate the most sacrosanct fiduciary relationship of trust and
sexually violate their helpless daughters? And what should be the
punishment for those who through their silence or negligence abet the crime?

The infamous ruling of the Supreme Court (SC) in the Mathura rape case in
the late 1970s became the catalyst for a nationwide anti-rape movement. The
SC had acquitted two policemen who had raped a 16-year-old illiterate
tribal girl inside the police station while on duty on the ground that
since there were no injuries on her body she might have consented to the
sex. Further, the Court contended, since the girl had eloped with her
boyfriend and was not a virgin, she could not have been raped. The campaign
that followed resulted in bringing some changes in the archaic laws; the
most significant being the mandatory minimum punishment of seven years
which could extend to life imprisonment. It was perceived that it would
have a deterrent value. But when we examine the graph of reported cases
since 1983 (when the amendment was introduced) there is a steady increase
in reported cases. It is obvious that the amendment has failed to act as a
deterrent. Worse still, conviction rates are so low as to be negligible.
Even in these cases, the trial courts seldom award the statutory seven
years and give as low as three years or at times, just six months. Even
these result in acquittals at the appeal stage.

The conviction in the well-publicised Shiny Ahuja rape case in Mumbai is
not the norm, but an exception. In this case despite the complainant’s
retraction, the trial court convicted the accused based on forensic
evidence. There was a contradiction. While the actor denied that there was
ever any sexual intercourse between him and his domestic help, his defence
in court was that it was consensual. The judgment was condemned by Mumbai’s
socialites. A systematic media campaign was launched to clean up the
actor’s public image. And it is highly plausible that the conviction will
be set aside in the appeal which is pending before the high court. Three
other high profile rape cases in Mumbai – one involving the son of an
industrialist who was charged with raping a 52-year-old divorcee in his car
in his factory compound in the early hours of the morning and in which the
victim suffered a fracture of her wrist while resisting, the gang rape of a
student of a prestigious social work college in Mumbai and the rape of a
12-year-old ragpicker by a policeman – all resulted in acquittals, either
in the trial courts or in the appeal courts.

The retraction in the Shiny Ahuja case brings to the fore the important
issue of witness protection and compensation for the victim. Cases are
“settled” before the victim can depose, by the relatives at times with
active intervention of the police, sometimes even with the knowledge of the
court. We do not have any mechanism to protect a poor victim and other
witnesses against the onslaught of a powerful rapist from the time the
complaint is filed till the time of deposition in a trial court which may
take about a year or two at best. There are many constraints that work
against a girl from deposing in the court which calls for a strong witness
protection programme in order to ensure convictions.

*Fear of ‘False Cases’*

The trauma of rape and the stigma caused by it usually forces poor families
who file complaints of rape to change residences to protect their wards
from the stigma of rape. In most cases, the abuse is detected only when
these young girls in their early teens are taken to the hospital to
investigate delayed periods. The families are so poor that they cannot
provide even the basic care to their child. They need financial aid and
state support to overcome the trauma, the stigma and the adverse
consequences of rape. But each time the issue of compensation is raised,
the bogey of “false cases” is foregrounded to throttle the demand.

In Maharashtra, district boards were set up two years ago under the
district collector with high level officials of the home, health, law and
judiciary and women and child welfare departments’ along with
non-governmental organisation (NGO) representatives to scrutinise
applications for compensation, and the police were mandated to send in
copies of the FIR along with medical reports. An amount of Rs 2 lakh was
stipulated out of which Rs 20,000 is to be disbursed initially and the
balance after the girl deposes in court and an amount set aside for medical
aid, trauma counselling or skill training. But despite the grand “centrally
sponsored scheme”, the central funds have not reached the state government
and the victims wait in vain. This amounts to taking the most gullible and
most victimised for a ride. No one wants to act because of the all
pervasive fear of “false complaints”. One shudders to think how the family
of the Delhi gang rape victim would have dealt with the medical bills if
the case did not turn out to be a high profile one and the state
administration had not been forced to step in as a face-saving measure. But
then, is it wrong to expect this kind of state support to all survivors of
sexual abuse?

The fear of “false complaints” is all pervasive within our legal system
right from the time a victim tries to register the complaint to the time of
the trial. All stakeholders: the police, the medical officers who examine
the victim, the public prosecutors who are meant to defend her, the defence
lawyers who are out to tarnish her reputation and the presiding judge who
is supposed to be the neutral arbiter are plagued with this and constantly
look for evidence of falsity on the part of the victim. If this is the
present reality, one can just imagine what will happen if the punishment is
raised to a minimum of life imprisonment and maximum of death penalty. Then
even the few convictions which the judges award today will not take place,
and every accused will be given the “benefit of doubt”.

*Accountable to Women*

Instead, what we need is a criminal justice system that works with
responsibility, protocols for all stakeholders which are binding and most
important, a periodic audit that ensure that the protocols are followed.
This tedious process cannot be replaced by sensational measures such as
death penalty and castration which may momentarily satiate the public
thirst for blood, but will fail to have any deterrent impact at the ground
level. What we need most of all is a clarion call to make our legal system
accountable to the female citizenry in small but meaningful ways.

Flavia Agnes ([email protected]) is a women’s rights lawyer and
director of Majlis which also runs a rape victim support programme in