“IT WASN’T HER DRESS; IT’S YOUR EVIL NOTION”
Women don’t get raped because they were drinking or taking drugs. Women don’t get raped because they weren’t careful enough, not because they wear short clothes. Women get raped because someone raped them.
Rape is one of the most terrible crimes on earth and it happens every few minutes. Approx. one rape was reported every 16 minutes in India in 2020. According to the NCRB over 96% rapes in India are committed by people known by the victims and in most such instances the perpetrator is the husband of the victim. India has been characterized as one of the countries with the lowest per capita rates of rape! Because an estimated 99.1% of sexual violence cases go unreported[1].
According to statistical data National Crime Records Bureau 2021 records, In India, an average of 86 rapes are lodged daily, 49 offences against women per hour in 2021[2].
“The Rapists are all innocent until proven guilty. But not the victim. The victim is a liar until proven honest.”
Much has been written and discussed about Rape it has multiple views exist about its causes and punishments but the studies of Rape are dispersed in nature and it is essential to take a holistic approach to it and delve deeper into the root causes. The paper aims to analyze the problem of Rape-a Heinous offense in India and explains the immediate need to criminalize Marital Rape by the Judiciary. Understanding it from multiple perspectives suggests measures for mitigating this crime in the country, using the highlighted incidents from the Mathura case of 1972 to the Nirbhaya case of 2012. Well, these cases have revolutionized rape laws in India, but the trail of rape cases did not end there. The paper makes a theoretical contribution to delve into the root causes of the least researched subject of crime against women in the form of Rape. Considering the different types of Rapists and their Psychology provides a new perspective to bring a change in this context and put a step towards ending this crime.
INTRODUCTION
Nirbhaya “Bharath ki Beti”, Nirbhaya Rape and Murder case AKA The 2012 Delhi Gang Rape and Murder is a very high-profile heinous case, yet only 4 were sentenced to death out of 6 offenders by our judicial system which nearly took 7 years. But many years before there was one such case that brought women’s groups together the “Tuka Ram and another v. the state of Maharashtra 1979 AIR 185, 1979 SCR (1) 810”, more commonly known as the “Mathura Rape Case”. This case gave birth to legalizations that weren’t there before. The bench that gave the judgment of this case was constituted by Justice P.S. Kailasam, A.D. Koshal, and Jaswant Singh. The decision of the bench was highly criticized and condemned and thus led to a huge public outcry and protest against the laws of the country and the day was regarded as the black day in the history of the empowerment of women.[3]
Allowing the appeal in this case, the court held that:
Under section 375 of the Indian penal code only the “fear of hurt or death” can vitiate sexual intercourse. There was no such finding recorded. Whereas Tukaram is concerned, Mathura pointed more serious things to him in her deposition and later attributed these acts to Ganpat.[4]
The appellants were acquitted stating that this alleged intercourse was a “peaceful affair”[5]
The decision of the Supreme Court led to a huge public outcry and protests against the laws and the decision delivered by the court to have the case reheard an open letter was written to the chief justice of India by law professors of Delhi University. The concept of judgment was protested by the professors.[6]
As a direct response to the judgment, several women’s groups were formed including saheli in Delhi. The first-ever feminist group in India against rape ‘Forum against rape ‘later, renamed as ‘Forum against the Oppression of Women’ called for a national conference that started the debate for legal reforms.[7]
Women from various States including Delhi, Mumbai, Hyderabad, and Nagpur took to the streets on International Women’s Day. However, The result of the public outcry was the Criminal Law Amendment Act being passed in 1983.
Legal reforms that took place after this case:
The Criminal Law (Second Amendment) Act,1983
On 25th December 1983, a statutory provision in the face of section 114(A) of the Evidence Act was made, which states that if the victim says that she did not consent to the sexual intercourse the court shall presume the same.
With the enactment and addition of 376(A),376(B),376(C), and 376(D) in IPC section 376 (punishment of rape under Indian penal code) went under a change, which made the custodial rape punishable. (Which was further amended in 2013, after the Nirbhaya case). Further, the burden of proof was shifted from the victim to the offender, and it also added provisions for in-camera trials, the prohibition on the victim’s identity, and tougher sentences.
This case led to greater awareness of women’s legal rights issues, oppression, and patriarchal mindset and therefore proved to be a turning point in the women’s rights movement in India.
Next is the Nirbhaya Rape and Murder Case 2012 this incident led to widespread protests and demonstrations across the country. As a result, two committees were formed: the Justice Verma committee and the Usha Mehra committee.[8]
The report submitted by the committee proposed legal reforms as a result of various substantial and procedural changes in the law.
Section 375 of the IPC scope was widened now it included all forms of oral, vaginal, and anal sex which violates the dignity of women.
Punishment for Gang rape was included that punishes the offender for 20 years which may extend to a lifetime.
Section 376A enabled rigorous punishment of imprisonment of not less than 20 years, or imprisonment for life or death if the rape leads to the death of the woman or if the woman is left in a vegetative condition.
376E allowed punishment to repeated offenders if they are subsequently convicted for the offenses under 376A and 376D in which the offenders will be punished with imprisonment for life or even death.
Section 376 of the IPC was also amended to increase the punishment of rape.
Section 166A was introduced in IPC that punishes such public servants who fail to record such information. Furthermore, section 166B of the IPC made it mandatory for hospitals to treat the rape victim. The criminal amendment also made voyeurism, disrobing women, stalking, and voluntarily throwing acid punishable under various sections.
The laws now have changed drastically from what existed previously. With the birth of new values and technologies societal views change from time to time similarly, the laws also change from time to time all these cases have brought a change in the existing rape laws by reformation and interpretation.[9]
As there was a rise in threat to individual privacy in the country the criminal law amendment ordinance was replaced by the Criminal Amendment Act (2013). which mandated to make changes in the IPC and CrPC over time certain crimes were included in the IPC.
voyeurism is one such crime that was included in the IPC. A ‘voyeur’ is defined as a “person who derives sexual satisfaction from the covert observation of others as they undress or engage in sexual activities.
The provisions of section 114A of the Indian Evidence Act were another important amendment. This step was taken to protect the character of women. Thus section 53A was introduced in the Indian evidence act making it clear that in the cases of sexual assault and rape the court will not take into account the evidence related to the victim’s previous sexual experience or her character.
Even after such strict laws, the character assassination of women continues in society lastly and very importantly, the amendment under Section 354 in The Indian Penal Code, in addition to The Sexual Harassment at workplace act 2013, enhanced the definition of rape.
The development in the rape laws has come a long way but there are still certain issues that need to be addressed such as gender neutrality according to IPC a man cannot be the victim of rape and the concept of marital rape and the immediate need to legalize it.
Nirbhaya’s case has raised several serious questions about women’s safety to make the laws stronger. In 2013 Rape & Sexual Crimes punishment has been increased and made stronger, IPC Section- 376 has been amended. After this case, some serious changes have been made to the Juvenile Justice( Care and Protection of Children )Act, 2015.
Changes in the Judicial system were many but still, my Heart beats faster thinking about how many no. of Rape Cases are still been reported in India every single day, and don’t know how many women out there still don’t feel safe around. Let us question ourselves Nirbhaya is called “Bharath ki Beti” in every news channel around but did she get justice? Are Bharath ki Betiya safe? Are we doing enough as a society? Is the government and the judiciary system trying to know the root causes to eradicate this? Let us know this through multiple perspectives.
WHY DO RAPES HAPPEN? Rape can never be a mistake its always a crime. Rape is not a violent manifestation of sexual behavior but a sexual manifestation of violent behavior. Rape as defined under Section 375 of IPC-
Understanding the Psychology of Rapists
It is very important. But many people feel that capital punishment can give a proper answer to the Rapists and they must be hanged but it in the words of Columbia law school Professor Jeffrey Fagan “We’re very hard pressed to find the really strong evidence of deterrence( from capital punishment). Two things are important to be considered when in the context of Rapists:
- Extent of Punishment
- Likelihood of getting caught
Unfortunately, our society gives more importance to only the first one. According to NCRB reports Rape Cases pending trial stood at more than 133,000 by the end of 2016. One Case can be Fast-tracked and the accused can be given the death penalty but what about 132,999 cases pending, that is why more focus should be given to conviction rather than Punishment.
Even though the if our Judiciary can effectively punish the Rape by Death penalty the more effect will be on the Rape victim rather than the accused because, in 93% of Rape Cases, the victim knows the Accused the family around, neighbors and society makes it hard for the Victim and manipulate them to withdraw the cases it happened by someone among the family members, that is the reason why 99% of Sexual assaults go unreported, statistics shown by the govt data shown.[10] Not only does the victim face mental pressure due to the death penalty but also might cause a threat to the life of the victim. The other reason is that people of our society are the ones to decide the punishment of the Rapists and the reasons and also the offender even before the judiciary decides.
This can be understood by an example of the case- The Ryan International School Murder Case 2018 where Bus conductor Ashok Kumar was acquitted by the police and the whole society decided he was a murderer, the Bar Council was not even ready to take up the case but later when the case shifted to the CBI it was concluded that the actual offender was a 16yrs old boy from the same school but not the Conductor. Here, we can know how society comes first to decide even before knowing the facts which in turn not only causes mental agony to the acquit but also their family members and defames their reputation what if he was given the death penalty for the Murder he didn’t even commit and losses his life forever. So without the trial completion, these types of cases should not be concluded. There are different types of Rapists:
-Rapists unknown to the victim
The rapist unknown to the victim typically is a stranger. He frequently has a knife or other weapon. He threatens the victim during the attack and may injure her severely. He tells her he will hurt her in the future. Rapists unknown to the victim direct enormous hatred toward women. They want to degrade, humiliate, and use power over their victims. About 30 percent of rapists fit into this category. For victims, dying is a major fear during the attack.
Rapists known to the victim
This rapist is someone the victim knows: a friend, a date, an acquaintance, a relative, a husband or partner. He rarely threatens the victim with physical violence beyond the sexual assault itself and does not usually injure the victim. Over 70 percent of rapists know their victims. Their goal is to have power and control over the victim. For many victims, in their efforts to cope after the rape, the major issue is the violation of trust the rape represents.
The power-assertive rapist
Power-assertive rapist: Athletic, has a “macho” image of himself. More often than not, this is the type who commits date rapes. Approximately 44 percent of rapes are committed by power-assertive rapists. He is physically aggressive, and will use the amount of force needed to control degrading or obscene language, slapping or punching — but he does not intend to kill. This kind of rape often occurs quite impulsively and opportunistically.[11]
The anger-retaliation rapist
Anger retaliation is different because the perpetrator is actually out to punish women. Often carrying hate towards women this type of perpetrator will often substantially injure victims to the point where they require medical intervention or hospitalization. He feels animosity towards women and wants to punish and degrade them. Often he is a substance abuser. He is impulsive and has an explosive temper. He looks for an opportunity to commit the rape rather than for a specific victim. He attacks spontaneously and brutalizes the woman into submission.
The power-reassurance rapist or Opportunistic Rapist
He lacks the self-confidence and interpersonal skills to develop relationships with women. He is passive and non-athletic. This type of rape often occurs opportunistically and the rapist will at times talk to the victim as if they were engaging in the sexual act consensually. This kind of rape also occurs quite impulsively.
The anger-excitation rapist or Sadistic Rapist
A sadist, who derives sexual gratification from inflicting pain. He is typically charming and intelligent. The crime is premeditated and rehearsed methodically in his mind before it is attempted. Sadistic rapists often kill their victims.
Thus it’s important to understand that the Psychology of these Rapists is not just because of their internal desires but due to the childhood that they were brought up in, their Family, friends, and the society around them that made changes in their perspectives. Even today girls or women are been judged by the dress they put on, their habits, and even by the time they stay out at night and the time they reach their homes. These typical mindsets of the people in society should change. They should educate the boys from their childhood and the home before they enter the real world rather than judging girls who are victims.[12]
Marital Rape should also be legalized.
It’s 2023 and still, Husband can rape his wife because she is his wife. Many rape cases, and sexual assaults in this context go unnoticed.[13] Section 375 of IPC categorically excluded marital rape from the definition of rape. Many changes were brought in anti-rape laws, yet the laws regarding marital rape go unchanged. In 2012 the Parliament panel regarding Marital Rape laws stated that Marital Rape Laws will put families under stress, and will create anarchy in the societies. It marks back to the idea that marriage makes a women her husband’s sexual property and giving him sex whenever he wants is her duty. And the idea that the threat of rape or sexual violence only comes from ‘ monstrous outsiders’ by the society and media but the fact is that over 80% of married women are the victims of sexual violence reports that their current husbands are the perpetrators and others report their former husbands. Over 52 countries have criminalized marital rape. Many activities are done to empower women to report this raise voices against it, and seek help. The protests are not just to change the law on paper but to attack the age-old mindset of people who still view women as their husband’s property and not as an individual with their own identities. It is about challenging the long rape culture in the society.[14]
CONCLUSION:
The laws are dynamic they change with time but with the rape laws, the major concern is that the law is amended only when someone among us suffers, therefore, it is necessary to make changes accordingly by considering all the multiple views even before someone becomes a victim again.
“NO MEANS NO”, respect the sex that gave you birth. Stand up for the victim before it’s too late. The change should start from home, the educational system, It is important to give more sex- education to students. To stop showing differences between the genders and making the students interact with one another no matter who they are. To understand the psychology and give more importance to conviction rather than punishment. Don’t be an accomplice to sexual violence report it, fight it. “Men can stop rape” it’s time to educate ourselves and society. To get a change starting from the home so the typical mindsets can change, take responsibility for ending Rape.
[1] One rape every 16 minutes in India, NCRB data highlights country’s deteriorated law & order, India.com (2020), https://www.india.com/news/india/no-country-for-women-one-rape-every-16-minutes-in-india-ncrb-data-highlights-countrys-deteriorated-law-order-4159540/
[2] Tadit Kundu Pramit Bhattacharya, 99% cases of sexual assaults go unreported, Govt Data shows mint (2018), https://www.livemint.com/Politics/AV3sIKoEBAGZozALMX8THK/99-cases-of-sexual-assaults-go-unreported-govt-data-shows.html
[3] Rachit Garg, The journey from Mathura to Nirbhaya: Rape laws in India iPleaders (2020), https://blog.ipleaders.in/journey-mathura-nirbhaya-rape-laws-india/.
[4] Nishtha Shanti, The Mathura rape case of 1972: A watershed moment in India’s rape laws Feminism in India (2021), https://feminisminindia.com/2021/09/02/mathura-rape-case-1972-watershed-moment-india-rape-laws/.
[5] “habituated to sex, may have incited cops”: How 1972 mathura rape case changed nation & laws, IndiaTimes (2021), https://www.indiatimes.com/explainers/news/laws-against-rapes-in-india-555038.html
[6] Insult after assault: The two-finger test is not only unscientific but also degrading for the victim. the demand to ban it mounts, India Today (2013), https://www.indiatoday.in/magazine/nation/story/20130211-gangrape-two-finger-test-is-not-just-unscientific-but-degrading-761954-1999-11-30
[7] Seeing outrage for the first time, CNN, https://edition.cnn.com/interactive/2013/11/world/india-rape/
[8] 2019 TIMESOFINDIA.COM / Updated: Dec 19, How Nirbhaya case changed rape laws in India: India News – Times of India The Times of India, https://timesofindia.indiatimes.com/india/how-nirbhaya-case-changed-rape-laws-in-india/articleshow/72868366.cms
[9] Case study: Nirbhaya reforms introduced in rape laws, Legal Service India – Law, Lawyers and Legal Resources, https://www.legalserviceindia.com/legal/article-2133-case-study-nirbhaya-reforms-introduced-in-rape-laws.html
[10]Tadit Kundu Pramit Bhattacharya, 99% cases of sexual assaults go unreported, Govt Data shows mint (2018), https://www.livemint.com/Politics/AV3sIKoEBAGZozALMX8THK/99-cases-of-sexual-assaults-go-unreported-govt-data-shows.html
[11] Kamala Thiagarajan, In interviews with 122 rapists, student pursues not-so-simple question: Why? NPR (2017), https://www.npr.org/sections/goatsandsoda/2017/12/16/570827107/in-interviews-with-122-rapists-student-pursues-not-so-simple-question-why
[12]Mental health assessment of rape offenders – PMC – national center for …, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3777344/
[13] Shelly Walia, India’s preference for sons has created a nation of tiny people Quartz (2015), https://qz.com/india/379978/indias-preference-for-sons-has-created-a-nation-of-tiny-people
[14]The Swaddle & Pallavi Prasad, Why it’s still legal for Indian men to rape their wives The Swaddle (2020), https://theswaddle.com/marital-rape-inda-decriminalized-crime/
Author: Dongari Pravalika
Juris Centre 