Lacunae in the Rape Law

another one on the rape law

                                                          LACUNANE IN RAPE LAW

           

              The issue of rape has become one of the central concerns of the women’s lib movement abroad.   Seen as the ultimate of the male’s attempt to dominate woman, both physically and psychologically, women in the West are getting together to fight against this social evil.   It takes various forms: learning self-defence – judo or karate – so that a woman can fight back against a person who is forcibly trying to have sexual intercourse with her, or else, it takes the novel form of picketing.   If a woman has been raped, or an attempt to rape has been made, women’s groups walk up and down the house of the male carrying signboards that XY is a frustrated male, and has attempted rape.

             What is the situation here in India?

            What do women girls, so if they have been forced to have sexual intercourse?

             Most often, they remain quite.   The loss of virginity, or the knowledge of such loss, could easily lead to victimization of the girl.   It would be almost impossible for her to get married or, if married it could lead to her social ostracism.   So the easiest solution is silence.

             Thus the first problem is social ostracism.   If a woman is raped it is considered, somehow of the other, the fault of the woman.   So in her own social environment she is ostracised.

              The second problem is the question of power, power in the sense of higher ups – economically and politically – making use of women.   Such cases are numerous.   For example, during any period of drought in the rural areas, where the poor population is totally dependent on the  bureaucracy, contractors, higher classes, for work of food, it is common to enter a government office and see women huddled in a corner  “to be used in the evenings.”   During war, the victorious armies who believe that everything belongs to them have orgies with women.

            These are unusual situations some may say, but hardly.   The fact is that Dalit women (Harijan, Untouchables), or women of the lower castes are often raped by men of the higher castes, especially when they are beginning to assert themselves a little.   The best way to control such attempts is to beat up the men and rape the women.   Once in a while cases come up in the newspapers – rape in Maharashtra, in Bihar, in almost every state in the country.   Once in a while it surfaces, accepted as one more thing that the or have to endure in life.

            Women prisoners – this fact has recently come into prominence because of the reports which are now coming out about those who had been detained in jails during Emergency – no matter for what crime they have been arrested, become tools in the hands of the males around.

           All these are instances of males from a higher social, economic or political group using their power to subjugate women from lower social groups,   and in such situations it is very difficult for the subjugated to get justice on an individual basis.   And since combination and organization are rare, most cases of unpunished.   The Dalit Panther movements attempted, and in several cases were successful to punish those who had raped Dalit women.   By gathering Dalits from the villages, they made sure that if they spoke out, they would not be beaten up.  

            Another important contributor to the problem of rape is perhaps ignorance.   A large percentage of rape cases occur among girls who are minors – thirteen, fourteen, fifteen years or so.   These occur very often in urban slums where it is common for individuals to drop in regularly for meals for which they pay on a, monthly basis.   This is because they do not have a family in the city and find this arrangement better and cheaper that eating in a hotel and the family which provides the meals also makes a little money.

             Often in such a situation there is a young girl around.   She gets friendly with the man.   Then one day, when no one is around the man may drop in.   They may talk, play and then have sexual intercourse.     

            The lawyer who related such a case to me insisted that this was not rape as it was not forceful entry.   The girl, she insisted, was willing – and was not forced.   As proof she said that the younger sister was playing outside and there was no screaming – nor were there any signs of resistance.   It was the parents who filed the case of ape against the man, when they came home and found out what had occurred.

            He got three months imprisonment for molesting a minor-she was just about thirteen.   A light sentence, but then, they say, she had been willing.

            The lawyer, a woman, repeatedly emphasized that the girl was a willing partner.   She insisted that girls developed and matured faster in slums.   Child marriage was common, drunkenness widespread, morality low.   Girls wanted sexual satisfaction.

            However, this same case is an illustration to show how the lack of knowledge regarding sex, the nature and results of the sex act, can land women, especially young women into trouble.   True, the girl did not scream, did not fight.   But did she know what was happening?   There was a man her parents trusted, who came to her house every day, obviously a friend.   He was asking her to do something- something that she had no doubt seen in her life occurring often (in slums, where 10-12 people stay in a 100 square foot room, such sights must be common).    Wouldn’t an innocent young girl agree?   She probably goes along, not quite knowing what is happening till neighbours or parents come into the picture.

           The insert in this article reproduces the law regarding rape.   If a woman id ignorant of what is occurring, and therefore complies, it is not a case of rape and, as the above case illustrates, if she is ignorant and therefore willing, but is under age, the sentence is light.

               But there are also reverse types of cases where the woman was actually willing, but says that she was raped.   An actual case, again from Bombay was that of a girl under the age of consent (18).   She had been seeing a man for some years.   He was of a different religion; hence the girl’s parents were against the relationship.   After having met for several months, the girl ran away with the man and went to stay with his sister.   She stayed with him there for a couple of days, during which time they went out to pictures for dinner, generally having a good time.   In a couple of days, however, the girl’s parents found out where she was and went to get her back home, charging the man with rape.

             It was quite clear that there was no case of rape involved here.   In fact, the parents had to drag the girl home.   She was keen to continue living with the man, and eventually marry him when she was old enough.  However, in a couple of weeks, the story changed.    The girl began to support her parents, and began to say that she had been taken to against her will to the house of the man’s sister.   The case is still to come to the court – but it illustrates that sometimes a man is wrongly accused due to a girl’s fickleness, and her changing her mind due to pressure from parents, relatives and society.      

              Having indicated the complexities of the problems involved in rape, how does the law protect women against this evil?   There is a law that punishes the rapist and/or potential rapist.   But in order to prove that rape has occurred, there has to be an almost immediate (within 4-6 hours of the rape having occurred) inspection of the man and woman by a semen to prove that rape has actually occurred.   Plus there is inspection to find out if there are any signs of struggle.   Thus both the man and woman are taken to the hospital almost immediately.

               This itself limits the number of cases that are reported, because to actually find the rapist and to make him go for inspection is a task that only few parents can accomplish.   No wonder then that so few cases where violence and force were actually used by the man are brought to court.   Thus, it is not surprising that it is easier to prove attempted rape by an offender, and then rape itself.   This is because, attempted rape means that somehow or the other the rape was stopped.   The woman screamed so as to draw the attention of others who were nearby and came on to the scene to stop the crime and the man was caught in the process of assault.   Thus there are witnesses to prove this.

              This is one factor which leads to the low level of case reported.   As an example of this these figures are from the statistics for Maharashtra.

               In the rural areas, where police stations and hospitals are few and far between, such a requirement means that many cases go unreported.   And what if a woman has been forcefully raped, and she has been examined, but the man has run away?   What if she can describe him, and he is identified in a line up? 

 Even in such a situation it would be difficult to prove the charge of rape – evidence would be needed to prove that the person had been around the place at the time, that he was seen, etc, etc.

               As the rape law currently reads, there is a large category of cases of sexual intercourse for which the word  “rape” does not theoretically apply.   This is the case where women in offices, factories, at their place of work as domestic servants, etc, are given the choice of going to bed with the man – a boss or superior – or losing their jobs/promotion.   In such a case, the woman is technically  can be no considered “willing” as there is no force used.   There are thousands of cases like this, and here there can be no prosecution.

              Is this fair?

              A couple of year ago, a girl was found in the bathroom of an office.   She had committed suicide after an incident of this sort occurred.

             A friend working in a government office told me that a considerable percentage of the women who worked in her office were regularly asked to stay in late to finish some work.   All the women knew what this meant.   There would be considerable sniggering and giggling.   Despite the fact that this had occurred to quite a few there had been no attempt to fight against this sort of sexual exploitation.

             As far as I am aware there has been no large scale attempt to take up issues of this sort by any political, any trade union, or women’s organization.   Exceptions, few and far between, do exist – like the Dalit Panther movement in Maharashtra and the Progressive organization of Women in Andhra.

              The lack of a strong women’s organization is felt acutely in such cases where the injustice has been done at an individual level, but where only collective action can overcome the social stigma the psychological hesitancy, the feeling of being a sinner which the victims of such crimes feel.

              Whatever we like it or not, the most common attitude we face regarding rape in India is that rape is impossible.  It is impossible, various young educated males and females assure me, to really rape a woman.   Initially a little force may be required – but this almost goes under the category of (quote) “seduction” (unquote).   Women like to feel dominated.   If you use a little force it makes them respect you.   You are more of a man.   Eventually a woman always agrees – and enjoys herself.”  “Biologically it is impossible to enter a woman unless she is willing.”  “Psychotics, or people with mental problems, may indulge in such things, but with prostitutes, etc, so easily available, there really is no need,” and so it goes on.

              Fighting against these preconceptions which do not see rape as a crime or as a crime, in which the woman is a willing partner, is an absolute necessity.       

                                       As in the West it will only be when women themselves unite to fight against their sexual exploitation, when instead of women being ashamed, they bring embarrassment and punishment to the male, when they fight back, that this sexual exploitation can stop.

                  And as the cases cited here show, it is the poor and the socially oppressed who are most exploited sexually, and it will stop only when their better off sisters write and fight that this will stop.

                  

                      WHAT A WOMAN SHOULD DO IF SHE HAS BEEN RAPED

1. If she is under 16, she should immediately tell her parents, guardian, or older friend who will help her with the rest of the procedure.
2. Immediately, before taking a bath etc, report the incident to the nearest police station.   The raped woman herself should go to the police station.
3. After the police have taken down al details, including an accurate description of the man, the police will take the girl to an authorized doctor or hospital.   The girl should cooperate with the police in the procedure to be followed.
4. At the hospital the girl will be inspected and tested to check that rape has occurred.   There will be a test to make sure there is semen in the sexual organs of the woman.   The girl should especially draw attention to any marks of violence and fighting.   Also, if there was any scratching, the girl should tell the doctor, so that if there are any particles of flesh remaining under the fingernails it can be used to identify the male.
5. The girl should pay close attention to the man, his face and other characteristics which will help the police to trace him.

                                            

                                SECTION 375 OF THE INDIAN PENAL CODE

              Rape:-

                   A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under the circumstances falling under the following five descriptions.

            First – Against her will.

            Secondly – Without her consent.

            Thirdly – With her consent, when her consent has been obtained by putting her into fear of death, or of hurt.

           Fourthly – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

          

          

             Fifthly - With or without her consent, when she is under 16 years of age.

             Explanation:  Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

             Exception:  Sexual intercourse by a man with his own wife, the wife being under fifteen years of age, is not rape.

             376.   Punishment for rape.   Whoever commits rape shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

                      

                                                                                                             December 10 -16, 1977