The issues surrounding rape in India are very deeply entrenched in the Indian society and has to deal with everything- right from child rearing techniques to role of women in the society. To enact a law to award the death penalty to rapist and hope that somehow these issues will simply dissolve into the thin air and rapes will stop happening is a recipe for disaster. Unfortunately, whenever there is a high profile rape case thousands of people come out into the street demanding death penalty for the rapist and because it hardly costs anything to make laws, the government brings in the required legislative changes to award the death penalty to those who rape women (2013) and those who rape minor girls (2018) and wash their hands off the sorry state of women’s safety and security in this country. Through this article I am just trying to show that rape in India has deep socio-cultural and economic roots which cannot be uprooted with just awarding the guilty the death penalty. I have commented on some of the issues related to rape below, but first I would first like to state the five main reasons why awarding the death penalty for rape is a bad idea.
Firstly, after the amendment was passed in April 2013 making it possible to award the death penalty for rape the incidences of rape have increased not decreased thus proving that death penalty as a deterrence for rape in India is ineffective.
Secondly, awarding the death penalty for rapes increases the incentive for the people committing rape to kill the victim of rape or to go to extraordinary lengths to eliminate evidence that any rape has taken place. Rape laws are supposed to protect the victim not put their lives in danger so unfortunately rape laws of India are achieving precisely the opposite of what it set out to achieve.
Thirdly, the calls demanding death penalty for the rape of a girl child or a woman often masks a poisonous aspect of patriarchy that we often overlook. There are many people in India who think that women who have been raped have effectively died because she has lost her honour. That is why you see that after every case of rape that comes to light in the national media in India, there is more focus on punishing the culprit rather than rehabilitating the victim. Of course the former is important for the sake of justice but the latter is equally important.
Fourthly, let us consider the mental health angle. There are several cases in India and around the world where rape is committed by people suffering from mental disorder. Can death penalty stop such types of rape? No, because such offenders may not even have the mental capacity to understand what rape is, or that they are doing something wrong, or even comprehend the price they will have to pay for committing such a crime.
Finally let us come to the issue of wrongful imprisonment. We have several cases in India where you see the police and other security personals staging fake encounters and planting evidences and using torture to achieve their objectives.[ii] Indian investigative agencies also do not possess cutting edge technologies which help Western law enforcement agencies to solve crimes.[iii] So, under such a situation even when a rapist is arrested, tried, convicted, sentenced and executed, can you be sure that they got the right guy?
There are more qualified people than me who have spoken out on various issues regarding rape in India but I would like to comment on a few of those issues
It is very rich coming from a country where we have not yet criminalised marital rape to call for the death penalty for rapists.[iv] This problem undoubtedly have emerged from our lack of understanding of the concept of “consent” with regards to sexual relationship. India is not the only country where discussing anything relating to sex in public is a taboo, it is so in many other countries as well, but most of these other countries have discussed and come to an agreement about the issue of consent. But such a discussion has not taken place in our country even after the concept of consent was made central to the rape laws in India
It is my opinion that criminalising marital rape will go a long way in making us Indians understand the concept of consent and the central role it plays in any sexual relationship. The concept that a “good wife” should provide sexual services to her husband on demand was once prevalent across the world.[v] But as societies evolved and women became equal legal entities like men and they realised and learned to exercise their freedom and liberty in all fields including in sexual relationship. Women realised that just because they might be married to someone, it automatically did not means she had become his sex toy. So, since women were no longer subservient to men they wanted equality in deciding whether they should engage in sexual activities or not. In other words society learned that regardless of the relationship between a man and a woman, there needs to be a mutually agreeable consensus before the parties decide to engage in sexual activities. This is the reason why Indian rape laws like most other rape laws makes it clear that engaging in a sexual interaction with a woman without her consent or when she is incapable of giving consent is rape. Why do you think that having sex with a child, even with the child’s consent is considered rape? It is because a child is not deemed to be qualified enough to give consent.
So how can we bring the issue of consent to the centre of the debate on rape that we are currently having in this country? I think it can be achieved by criminalising marital rape. Let me explain how.
Regardless of what you might have heard there is no rape culture in India. I find this really weird that the same people who says terrorism has no religion (rightly) claims that rape has a culture (Indian). Culturally and socially we are taught to respect and honour women, but there are gaps in this teaching. A Dutch friend with whom I went on a “road trip” across a part of India pointed out to me that we Indians have a problem of judging people based on various parameters, he was spot on. While we Indians are taught to respect and honour women somewhere along the line we developed these corollary ideas like – women who are out of their homes late are somehow dishonourable and women who wear less clothes are not to be respected. This is why we see so much victim blaming after rapes take place. In all this hullaballoo the question of consent disappears. How can someone without consent sexually violate someone else’s sexual right just because they do not have respect or honour for the other person? The answer I am afraid is quite straight forward and simple- male entitlement, and there is no institution which gives Indian men the sense of entitlement to demand sex than marriage.
There are various social and cultural traditions which place men in superior position than women in the Indian society. It is due to these customs that many men feel entitled to demand sexual favours from women especially in situations where they feel the woman is “dishonourable” or “disrespectful”. Now it is agreed upon by numerous social scientists that rape of a woman is a form of assertion of power by men. In fact, through interview of rapists many studies have found that most rapes do not happen due to lust, but that most rapes are a form of physical assault that a man engages in to “show a woman her place”. So, many rapes in India are a result of men judging particular women of being dishonourable and disrespectful which leads to him forcing himself over her. There are several problems with this situation most striking of which is, who gave the man the right to judge whether the woman is honourable or not? But we should also ask why such rapist do not consider the issue of consent before assaulting a particular woman. This is why I propose that marital rape be criminalized immediately because many married men in India seem to be under the false impression that their power to demand sexual favours from their wives cannot be violated under any circumstances. So, by criminalizing marital rape we can not only inject the concept of consent into the married lives of Indian couples but also bring the discussion about consent to the forefront. We may not realise it now but when it becomes impossible for a husband to “even” have sex with their wives without their permission, you can rest assured that there will be a massive upheaval and overhauling of sexual relationship between man and woman.
The concept of “Respect” becomes very pertinent when we begin to consider child rape in India. One social issue that we have very comfortably overlooked as a society over the years is how we treat our children. By and large Indian children are quite a mistreated lot- physical abuse is not only rampant but weirdly widely celebrated, from an early age itself children are exposed to manipulation and emotional blackmail by parents and other elders and children are forced into customs, traditions, activities that they have absolutely no interest in adhering to. Finally, to top all that it is expected that Indian children respect their parents and other elders like Gods, which is basically short for unquestioned obedience. You might say that this is true for most parents across the world, but you will be wrong as Indian parents have a tendency to take it to another level altogether. As a society we are slowly learning to deal with this issue through humour but nothing substantial has come out of it.
Now let us consider the consequences of the unequivocal respect that children are expected to show with regards to elders and the massive opportunity that exists for misusing that respect. A child who has no idea about sex, who is taught to only obey what their elders tell them will be horribly exposed to being sexually abused or raped. This why results from several researches have not only shown that most child sexual abuse is committed by family members or by acquaintances of the child but that the overall mistreatment that Indian children is made to undergo during childhood usually accompanies such abuse.[vi]
Do you really think such kinds of problems can be solved by awarding the death penalty to the guilty? Such problems can only be solved when we as a society and various communities in India introspect and improve their child rearing techniques. We don’t only need to teach our children to respect elders but we need to learn to accept that we have to respect our children as well and need to clearly define the boundaries of respect and consent.
Some enlightened feminists have rightly pointed out that rape laws in India are already some of the most stringent in the world, but what is lacking is the implementation of these laws. The quickest time that someone can expect a rape case to be settled in courts is 2 years, on top of that the conviction rates are low. So it frequently becomes a case of “justice delayed is justice denied”. But there are some very easy steps that both the government and the people can take to remedy this situation of poor implementation of laws. Firstly the government needs to stop dragging their feet with regards to judicial appointments.[vii] Indian judges are greatly overworked and this is not helped by the substantial vacancies in the judiciary which the government seems to be determined to maintain. So, it is logical to expect that Indian courts which were taking so long to give judgements with the already enacted laws will take even longer to deal justice in cases of rape of children as more/new laws are being hurled by the government towards the judiciary.
Secondly, we need to be aware that in India sex education although not de jure banned but is definitely de facto banned because it is kept out of curriculums and schools. This results in two very harmful things, firstly, women not realising and hence not reporting when their sexual rights have been violated and women complaining about being raped when they have not been raped. Yes, there are some selfish and evil women who wilfully and knowingly falsely report rape but going by all reports such complains form a miniscule number. But can you blame a woman when she files a complaint for rape if she is unaware of the legal provisions and definitions of rape in the country? No.
In fact this problem has become so acute that courts in many places in India are dealing with rape cases which not only are not considered to be rapes anywhere else in the world but are not recognised as rapes in India as well. I will try to deal with the two biggest types of non-rape cases which are clogging the Indian judicial system with rape cases. The first types are the “breach of trust cases”- these cases typically follow the following hypothetical story- a man and a woman are in a relationship, while being in that relationship they engage in consensual sex, but this relationship does not lead to a marriage, so the woman goes to the court complaining that she had been raped because the man had sexual relationship with her under false pretences. Virtually no civilised country in the world recognises “breach of trust” as rape and both the Supreme Court of India and various High Courts like the Bombay High Court has made it clear that breach of trust cases should not be considered as rape.[viii] But despite this numerous breach of trust cases are filed as rape cases in courts of law across the country which thereby clogs the entire legal system. Ask yourself, do you want the death penalty for the man under such circumstances?
Even bigger problem than the breach of trust cases for the courts are the dissenting parents cases.[ix] These types of rape cases are becoming a headache for the courts. These are cases where an adult man and a woman are in a consenting relationship but parents in the girl’s side disagree with their impending union (usually due to caste, religion or economic reasons) and file a complaint of rape with the police forcing the separation of the couple. Many of these cases also see the parents and other relatives forcing the woman to give witness accounts of being raped under the threat of her life. Honour Killings are a corollary of these kinds of incidents. Now ask yourself again, do you want death penalty under these circumstances?
Both the reasons cited above for frivolous filing of rape cases-“breach of trust” and “dissenting parents” are reasons emerging from the conservativeness of the Indian society, but what is being done to stop such cases from clogging the justice system with rape cases? Precious little. All the commercial and governmental campaigns taken out for the upliftment of women focus on how much potential for good an unhindered female has. As noble as those intentions might be, my question is what good does it do if we as a society cannot guarantee the safety and security of women in their attempt to realise their potential? So, in order to provide them that security it is not enough that we just enact laws protecting women but we should also ensure that those laws function as they were intended to and the minimum wait period of 2 years for a rape case to be settled is just too long. Also, we need to learn how to talk about sex in public to educate not just women about their rights but also to educate men about where their rights end. Just telling men not to rape and society imposing some unscientific and unjustified parameters of behaviour on women not to get raped is the sorry state that we find ourselves in due to no healthy discourse covering the topics of sex.
This is where the feminists and women’s rights activists come in. If the government is not doing it they do should do it themselves. Make women and girls aware of their sexual rights and freedom. Make them aware of the laws which exists to protect them if those freedoms are violated and petition the government in whatever means they can to keep the rape laws exclusively for sexual violence not for babysitting a relationship gone sour or to appease parents for whom their ego is more important than their daughter’s life, happiness and growth.
Economic Reasons for Rape
The economic reasons are very easy to understand but difficult to control. India’s economy has seen rapid growth in the past 2 decades which has democratized (to an extent) the club of wealthy individuals. No longer are the wealthy limited only to the landed gentry, caste leaders or politically powerful people. Wealth brings its own problems of privilege and entitlement which is expressed in different ways and also in relation to a society’s interaction with women. With the Indian economy rapidly becoming more and more capitalist features of capitalism are also influencing social relations in other words a person’s social standing is now increasingly determined by how rich he or she is. Where everything has a price, sexual interactions can also be purchased, but when sex is denied to someone who has lived a life of entitlement and privilege rape is not a too distant possibility. Things are not helped by the fact that a lot fewer women are employed than men and because of the pay gap, men in most cases have financial primacy over women and there are many instances where men have tried to assert such power by demanding sexual favours from vulnerable women.
Let us deal with the issue that drove me to write this article in the first place- the alleged Kathua gang rape case and the protests following it. The case is currently sub-judice so not a lot can be said about it but the details coming from the police investigation like the charge sheet which has been made public are extremely brutal and blood curdling. But, as a student of history I learned something new from this Kathua incident which is that even if a rape is not a war rape it can be made into a war rape later.
War rapes are the kinds of rapes that take place during wars when one party tries to assert their dominance over a community living in a particular location by trying to rape the women in that region. Significant examples of such crimes from the last 100 years are the Rape of Nanjing by Japanese soldiers, the rapes carried out by Soviet soldiers in the last days of World War II against German women, the Rwandan genocide and the Congolese Wars of the last 60-70 years. Before anyone asks, yes, German soldiers did rape Soviet women but these kinds of sexual relations with what the Nazis regarded as “sub-humans” belonging to the Slavic races were discouraged. But this was not so in the Soviet side, Red Army soldiers were encouraged to rape German women and some of this encouragement even came from the women back in the Soviet Union. It also deserves mention that the rapes during the Congolese wars were uniquely brutal because often times the same territory would come under the control of different groups who will attempt to establish dominance by raping the same women.
As mentioned earlier the Kathua rape is sub-judice so we cannot be certain whether it was a war rape or not. But things like the parents of the victim being threatened, relatives of the victim being chased away when they tried to bury the victim in the village graveyard, the lawyer of the family of the victim receiving death threats, the leaders of the majority community making the rape case into a majority versus minority issue and demanding the accused be released immediately and threatening violence against the state, effectively converted the Kathua rape case into a war-rape.[x]
Now, war rapes are not common in India, for the simple reason that India is not at war. But it is not as rare as one would wish. But these rapes are not usually the result of religious disharmony but caste based violence, where members of one caste would rape women of another caste to teach the people belonging to the victim’s caste a lesson.[xi]
There is no point analysing these kinds of rapes because they are results of complete breakdown of law and order and can only be avoided if the state can ensure the rule of law and have the strength to enforce it in every part of the country. Also, an introspection and investigation into what has caused such an inter-community rivalry that one community had to resort to using rape as a weapon could help.
Collective punishment of all Indian Males
I do not want to delve into this topic a lot as this article is about women’s safety. But, I would only like to say that it will be advantageous if men are made real stakeholders in ensuring that sexual violence is eliminated from our society. But instead the complete opposite thing is happening since the widely published notorious rape in Delhi (2012). The rape laws which were amended after this 2012 rape decriminalized all and any sexual violence against men be it harassment, assault or rape. Same thing happened after the Kathua rape case became widely published in the media. The amended laws now provides greater punishment for sexually assaulting minor girls than for minor boys. Now, India is not a haven where sexual crimes are not committed against men and boys. Just like everywhere else these crimes exists in India and most of these crimes are being committed by men. Decriminalizing such crimes against the male gender ruins us of an exceptional opportunity to fight against sexual crimes in this country together. Also, this type of societal and governmental reaction poses the threat of a “slippery slope”, for example tomorrow someone might propose that if cumulative punishment can be imposed on all males living in India why can’t collective punishment be imposed on some other social group or community in India.
After reading through the points I have written above I hope I have managed to convince you that there is no one silver bullet to deal with the issue of rape in India, it is just too complicated to have a simple single solution like the death penalty. The only way to deal with the epidemic of rape in our country is to face the truth that rape needs a lot of introspection of where we are currently as a society and also needs overhauling of a lot of ways in which we interact with women in our society.
Below are some of the steps that I would suggest for dealing with the rising number of rapes in our country:
- Fill up the vacancies for judges in courts especially in criminal courts as fast as possible. Minimum time of 2 years to settle a rape case is really long.
- Remove death penalty for rape. It is seen everywhere in the world including in India that judges are prone to declare a person not guilty of a crime if the punishment is more severe and death penalty is the severest form of punishment. Secondly, the length of the legal processes in executing a death penalty case is also very long. So, with even child rapes now being brought under the purview of the death penalty, the minimum time required for the case to be dealt with will inevitably increase.
- Start imparting sex education in Indian schools immediately. This is crucial not only for leading a healthy mental and physical life but also to ensure security of Indian citizens.
- Make it mandatory for all schools to teach children what constitutes violation of sexual crimes.
- Make it mandatory for all schools to appoint someone to whom children who have been a victim of any crime – sexual or otherwise can go and report. Also make it so that this person can coordinate with law enforcement agencies.
- Teach children to rise an alarm if they are wrongfully/sexually touched or assaulted by someone by shouting keywords like- rape or paedophile in their mother tongue or the lingua franca of the locality.
- Make the prisoners convicted of sexual crimes listen to recordings of victims of such crimes describing their trauma. This method has been very successful as many convicted criminals felt physically sick while hearing the harrowing stories of rape and assault and hence it worked as a great assurance against repeat offenders.
[v] For Example, see William Shakespeare’s “Taming of the Shrew”
[vi] Carson, D., Foster, J., Tripathi, N., Child Sexual Abuse in India: Current Issues and Research, Psychological Studies (2013), pp. 149-170.
[viii] See http://www.thehindu.com/todays-paper/Sex-with-consent-on-promise-to-marry-wonrsquot-constitute-rape-Supreme-Court/article14825261.ece or http://www.livelaw.in/every-breach-promise-marry-cannot-amount-rape-bombay-hc-reiterates-read-order/
[ix] See http://www.thehindu.com/opinion/op-ed/rukmini-s-writes-about-the-mumbai-sessions-court-rulings-on-sexual-assault-during-2015-why-the-fir-doesnt-tell-you-the-whole-story/article8014815.ece or http://www.thehindu.com/data/the-many-shades-of-rape-cases-in-delhi/article6261042.ece
[x] See http://www.republicworld.com/india-news/law-and-order/shocking-kathua-rape-and-murder-victims-family-was-offered-a-bribe-then-threatened-when-they-refused , https://www.deccanchronicle.com/nation/current-affairs/160418/i-can-be-raped-killed-lawyer-for-kathua-rape-victims-family-threat.html , https://www.hindustantimes.com/india-news/kathua-rape-victim-buried-8km-from-village-after-locals-refused-land/story-DI69ew6iVABmtLOc00nprN.html , http://indianexpress.com/article/india/tricolour-in-hands-of-jammu-youth-could-become-ak-47-jammu-bar-association-chief-to-govt-5135334/
- The featured image is from the following link: https://themuslimvibe.com/muslim-lifestyle-matters/women/rape-where-indian-society-has-gone-wrong
- The image on top of the page is from the print edition of The Hindu newspaper (April 2018).