In the last post, I wrote of recognition. Since I’m a lawyer, it isn’t surprising that the form of recognition I seek to address is legal recognition – does the law treat women as individuals, no less worthy than men, no less entitled to the protection and resources of the State? The answer, sadly, is that it doesn’t.

We could, of course, ask why that is so: delve into history, into sociology, into economics or political science. We could find reasons. But I happen to be of the view that no reason can justify the treatment of women as less than human, and so I won’t get into these numerous ‘reasons’. I won’t however, ask you to depend on my judgement that the law treats women as less than human – I propose to give you examples, and then, look at what we can do to change things.

Let’s start with one of the most contentious issues: rape law. The statute governing rape in India is very limited: sexual intercourse by a man with a woman without her consent is rape, except where the woman is his wife. Also, if the woman is less than sixteen years of age (or fourteen id they’re married), it is rape even if she consents. Penetration is sufficient to constitute sexual intercourse, as long as it is penetration of the vagina by the penis.

Thus, the crime of rape is limited to non-consensual sexual intercourse outside of marriage. Why not within marriage? Does marriage constitute all-encompassing consent to sex? Can a woman never say no to sex with her husband? Well, she can, but if he assaults her and forces her to have sex, it isn’t a crime. She has no redress under the law of rape. So the law treats marriage as a blanket consent to sex on part of the woman – isn’t that interesting?

Hmm. Non-consensual sexual intercourse, did you say? Why is it specified that it is non-consensual? Where there’s a non-sexual assault, the law treats it as a crime, without reference to consent on part of the victim. So, in a non-sexual assault, the law assumes either that no victim would actually consent to violence against their person, or that even if they did consent, it doesn’t matter, because the act of assault is punishable nonetheless. Why is this assumption not true of sexual assault? Is it because the law assumes that sexual intercourse between a man and a woman is inherently violent to the woman, and so consent or the lack thereof makes the difference between criminal and non-criminal sex? Isn’t that a silly assumption? Even if it were true, why should consent make a difference – if women are hurt, shouldn’t the law punish the person who hurt them?

Because the crime of rape is defined as sexual intercourse without consent, a person who alleges rape is required to prove that there was sexual intercourse and that it was without consent. How does one prove a lack of consent? Where it is the word of one person against another, in cases that don’t relate to sexual consent, the law looks to the surrounding circumstances for indications that one or the other is lying. In the case of rape, however, because rape is a crime, the previous ‘bad character’ of the accused is deemed to be irrelevant. The previous bad character of the victim is not specifically made irrelevant, and therefore, can influence the decision. This means that in a situation where you have to decide whether the accused is lying or the victim, only the victim’s character can be questioned in court. After many years of struggle, this law hasn’t really changed; the woman’s word is still worth less than the man’s.

Finally*, why is it that rape is only men forcing sexual intercourse on women? Can a woman sexually assault a man? Can’t a man sexually assault a man? Why is child abuse rape only if the victim is female? Isn’t it sexual assault, or forced or non-consensual sex of any kind, that ought to be criminalised? Doesn’t child abuse need treatment separate from non-consensual sex between adults? Why do we have to criminalise any form of consensual sex?

So, the law of rape is all fucked up. Does this mean all law is similarly skewed? That has to wait for the rest of the posts, so until then.

*Not because there isn’t more to say, but because this post is long already


2 Responses

  1. Hi Erimentha,

    I fully comprehend what you said in the above post,yes rape law is fucked up,no doubt.But I would not say that the woman’s word is less worth than the mans. All that a woman has to do is point her finger and the onus is upon the male who has to prove himself innocent. Maybe my understanding is skewed,please enlighten me in this regard if i’m wrong.Either way,the connection between this post and feminism? Is this some kind of rebellion against a single rape law? Or is there more to it? please ellucidate/substantiate(since this is one of the very few thought provoking discussions iv had online).Thanks

  2. Ram, Thank you; I’m glad you feel this is a thought-provoking discussion.

    Since you ask, it is not true that all a woman has to do in a rape case is to point her finger; the burden of proof in a criminal case is upon the prosecution, and there is no reversal in a case of rape. The victim has to prove that rape has occurred, and that the accused is the person who has committed it. Even leaving aside the fact that the manner in which society views rape makes it very difficult for a woman to even report a rape, the law ensures that in a situation where the court has to weigh one person’s word against the other’s, the victim’s character can be maligned in order to doubt the truth of her statements, while the accused’s cannot. Which is why I say that in evidence, the woman’s word becomes worth less than the man’s. Over a period of time, sensitivity to the victim has grown (mainly because of the efforts of women’s groups in various fields), and some judgements have been passed where the judges point out the unfairness of this position of law, and refuse to allow evidence of the victim’s past sexual history, for example. However, this is still not a legal black-letter-law rule. Similarly, earlier courts insisted on independent corroboration of the victim’s statement, and acquitted defendants on the sole basis of lack of corroboration. It was as if there were a rule that a woman who was ‘shameless enough to admit she had been raped’ would anyway be lying. In the recent past, judges of the High Courts and Supreme Court have warned against such an attitude and pointed out that where the victim’s testimony is believable, the court need not (not *must* not, *need* not) insist on independent corroboration.

    As for the connection between this post and feminism, I’m trying to explain how the feminist view that women deserve to be treated as autonomous human beings and that currently, they aren’t, is reflected in the law. As an illustration, I looked at rape law, and the feminist critique of rape law. I stopped because the post was getting very long – I promise connections will become clearer as this series progresses.

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