Volume 4, No. 3, March 2003

— Sujata

While this callous dismissal of the most heinous crime against women is outrageous, it is also representative of the general attitude towards rape — of society, of the state, of the powers that be. Throughout the ages, from the era of slavery, through feudalism, capitalism down to the present era of imperialism, there has been an unwritten support of the belief that women can and should be "taken by force". From the inception of class society and patriarchy, rape has not only been a weapon to ‘show women their place’, it has also been used to teach an entire community a lesson, as an instrument of political mobilization, to instigate a community into armed conflict, as repression against social movements, as an act of aggression on the enemy in war. What an irony, that while women have had little or no say in the decision making processes of change, it is they who should be at the receiving end… have their bodies brutalized, their minds shattered. Due to the pressure of the growing women’s movement, changes have been made in the rape laws, rape crisis centres set up, and there have been some attitudinal changes in the media in imperialist countries. Yet, the numbers of rapes taking place there (more get reported) continue to be high, showing that rape is an integral part of the system of patriarchy and class exploitation.

Recently rape laws have again come in for revision. The Law Commission has placed its recommendations, some of which have come into force. The recent case of a college student of the Maulana Azad Medical College in Delhi being raped in broad daylight in the heart of the city, sent shock waves throughout the country. Once again the Home Minister, L.K. Advani, playing to the gallery, began clamouring for the death penalty for rapists and George Fernandes swung to the other extreme of his previous statement declaring that rapists should be shot. The women’s movement however has reacted sharply to this saying that awarding death sentence can hardly be the solution. We have seen that the higher the punishment to be awarded, the fewer cases of conviction take place. Where the conviction rate is so low, this will surely not help. Some are apprehensive that more women will be murdered after rape since the penalty for both may be death. Besides, the linking of the act of rape with that of murder, as the BJP is doing, further reinforces the feudal views that a woman raped is as good as dead and she has nothing to live for.

Instead of the death penalty, it is procedural changes and attitudinal changes that are called for. Yet, it is most ironic that, in India, we had been following a rape law drafted by the British in 1860 and even after transfer of power we had not changed it, while the British themselves had modernized their own rape laws. It was only after the Mathura Rape case and the growth of the women’s movement in India that the rape laws were changed for the first time in 1983. A minimum punishment of 5 years was fixed and, in cases of custodial rape, the onus of proving his innocence was put on the accused. Now, the Law Commission, in 2002, has made various recommendations for changes: the sections pertaining to cross-examination have been amended so that the victim’s character is not taken into consideration and the necessity of previous good character does not become a factor going against the victim. However, to understand the laws and proposed changes it is necessary to examine the politics of rape and the manifestations of patriarchy through it. Besides, in spite of the law and the supposed concern for women’s safety by the state, the National Crime research Bureau figures indicate that the incidence of rape has increased from 15,330 in 1997 to 16,496 in 2000. Yet, according to Veena Goswami, legal advisor to the Delhi Commission of Women, only 20% of rape cases are reported. About 30% of victims get pressurized into withdrawing the complaint. Some rape cases take 10 to 15 years in court and about 4% of rape victims get justice.

Let us examine how rape was used as a weapon of subjugation in ancient Indian and medieval feudal society. The booklet published by PUCL & DR, called Rape, Society and State, breaks the myth, much propagated by today’s Hindutva forces, that women in Ancient India enjoyed high status.

The fact remains that at no stage of her life a woman enjoyed independence — man was her master and exercised his right either to make his wife cohabit with whomsoever he chose to get a son, as impotent Pandu did with his two wives, or gamble her away as Dharamraj Yudhishthir did to Draupadi or to throw her out of his kingdom as the ‘great’ lord Rama did to Sita. Even in the Rig-Veda, the concept of woman’s usefulness centres on her sexuality. After creating man, the ‘great’ Prajapati "lord of creatures," created woman:

"Come, let me provide him with a firm basis! So he created woman. When he had created her he revered her from below. Therefore one should revere woman below—He stretched out for himself the stone that projects. With that he impregnated her." (Brhadaranyak Upanishad, Brah-mana IV, ii)

That rape was not merely permitted but encouraged is clear from the verse that follows. Should a woman not yield despite flattery and bribes the man is advised that: he should hit her with a stick or with his hand and overcome her, saying ‘with power, with glory I take away your glory’. Thus she becomes inglorious. No stigma was attached to the rapist. Thus the great preceptor of the gods, Brhaspati, suffered no punishment for raping a married woman — the punishment fell on her child who was born blind.

The same importance given to honour and defilement of a woman’s purity, as an instrument of demeaning the name of a family is seen in European feudalism. In fact, the word "rape" itself comes from the French verb ‘raper’: to steal. While sexual assault is a big act of aggression on a woman’s body and mind, the word does not connote this violent attack on women’s rights regarding her sexuality, but gives importance to her honour being stolen from her. And here too, it is not her honour that society is concerned about but that of her man, her family. In early law, the punishment for rape was higher if the victim was married and less if she was single! Linking up history with the present situation in India today, one could only conclude: how well are the forces of Hindutva reviving our ‘glorious’ past! How sincerely have they emulated the gods in words and deeds in the carnage against Muslims in Gujarat! The law, even to this day, is framed in such a way that instead of the accused, it is the rape victim who has to indirectly, prove her innocence. It is the only criminal law where the crime rubs off on the victim. The victim is twice victimized.

To understand the demands for changes in the rape laws we must first understand how rape is used as an instrument of aggression and repression. Firstly, as Engels has pointed out in Family, Private Property and the State, the oppression of women was institutionalized after the growth of private property and class society. The institution of family was one of the chief institutions to spread and maintain patriarchy. As Engels points out, in order to pass on the property of the husband to his lawful heirs, various restrictions were placed on women’s sexuality. The purdah, burqua or veil, the various social norms restricting the freedom and independence of women are related to this. Reducing women to bondage and slavery helped appropriate women’s labour but also helped preserve patriarchy. Thus in ‘genteel’ society or the landed classes, a woman was the exclusive property of her family and to be looked upon by other men was a dishonour to the family. In the days of ‘chivalry’, it was the duty of the men of the clan or community to protect the honour of their women and an affront on their women folk was a call to arms, from private duels to family feuds and wars. Honour was so important that women would commit suicide or sati to save it, fathers would kill their daughter to preserve it. Much of these feudal norms are prevalent in today’s semi-feudal semi-colonial societies and its hangover lingers on in the advanced capitalist societies.

With the advent of class society and patriarchy the state that arose, defended this inequality and exploitation. We all know how in the days of early law formulation, the punishment for the murder of a member of the propertied class was higher than if a plebian was murdered. That is, the background of the victim of murder was taken into consideration. While the same attitude prevails in society in an unwritten manner, it is almost a written or regular aspect of rape law…. questions are asked about the background of the victim. While it should not legally or otherwise matter whether the raped woman is a prostitute or a ‘woman of good virtue’ attempts are made to malign the character of the woman to show that there was consent on her part to the sexual act. As patriarchy developed in society various social norms were developed to condone the crimes of men against women, in fact to transfer the blame on the women themselves. For instance wife beating was and is still justified in society. Any woman questioning any wrong act of her husband or his family is dealt with violence, physical or verbal. The code of Manu in ancient India warns the man against the seductive and immoral nature of women putting the blame on her for man’s sexual escapades, so much so that till today the wife blames the mistress for her husband’s extra-marital affairs. In the same vein, sexual aggression on women is approached with the attitude, "She asked for it." A woman must have dressed in a particular way, chosen to travel alone, to go out to work or do something that provoked the man to rape her. It is this attitude that prevails in society, that needs to be changed before we can expect any significant changes in law and justice. It is precisely this attitude that dominates the state, the judiciary, the armed forces and police mechinery, and the media. In other words, changes in the law will just be cosmetic changes and unless there is a revolutionary change in society and people’s thinking, rape will continue to be used as a weapon of repression and subjugation.

Rape is a kind of violence against women that has manifold effects on women and can damage her psyche so badly that it may lead to suicide. After suffering the physical brutality of the act, often committed in a sadistic way, the woman has to go through the emotional trauma. This trauma is magnified due to social attitudes that discourage women to speak out and fight against rape, that point fingers at her as if she is the criminal rather than a victim. Traditional culture depicts the raped woman as one doomed for life, having no other option than prostitution or suicide. In fact the same report referred to above, says that a survey conducted by the Indian Housewives Federation (in the 70’s) shows that 80% of women came into the institution of prostitution, at the first instance, as rape victims. An unmarried victim may never be married. The stigma attached is so strong that not only do women hesitate to come forward and report cases and fight for justice through the courts, they themselves feel that they are defiled, spoilt ‘fallen’. Fortunately some of these attitudes in women are seen to be changing as more and more women are speaking out. This was observed when fact-finding teams visited Gujarat and the innumerable rape victims from a traditional Muslim background took the courage to describe in detail their experiences and wanted to protest.

Behind the innumerable cases of rape, which are considered to be instances of uncontrolled lust on the part of the rapist, lies a psyche that women are to be seen as sex objects, their reason for existence is to satisfy the sexual desires of men and to give birth to children. Identifying women only in their sexual and reproductive roles is the kind of social conditioning both men and women grow up with. This is useful for the ruling classes, as the value of women’s contribution to the workforce through the reproductive function remains under-rated. Treating them as sex objects helps in keeping one half of the population subjugated. A large number of rapes occur within the family or extended family, by neighbours, with children, with dependent girls and widows, within insecure and exploitative work relations. They also largely occur due to efforts by males at asserting, establishing, and reaffirming their power in the gender struggle. Degenerate social and cultural trends, due to the prevalence of feudal culture and the growth of imperialist penetration, have been increasing sexual violence against women. Due to the commodification of women in the media, in the beauty, fashion, entertainment and tourism industries, women and girls are becoming more and more prey to sexual violence.

Rape is used as an instrument of maintaining class, caste, racial and ethnic distinctions and hierarchy. While this has been going on from the time of slave society, we can see, that even in the era of modern slavery in America, black women were easily raped, due to the notions of racist supremacy and also to keep the entire community in bondage. In India in parts of Bihar and Telengana the landlord maintained the right to be the first to sleep with the newly wed bride of the lower castes and landless peasants. In Maharashtra and other places the Devadasi system leads to young girls being offered to the priests of the temples as prostitutes due to blind faith and poverty. Other girls from lower castes have traditionally been singers and dancers who work as prostitutes in rural areas. Thus the women folk of the rural poor and dalit are considered common property. Raping them is condoned by society and the state turns a blind eye. In areas of development projects, tribal girls are lured and raped by the non-tribal contractors who come there to work. In areas of work, poor women labourers, single women, destitute women, domestic workers, sometimes even health workers in rural areas are raped with the knowledge that the class background of the rapist will save him from punishment, while that of the victim will deprive her from justice.

Rape is used as a method of the assertion of political power over a community, caste, or the poor in general. Police/bureaucrats/feudallords in backward areas rape womenfolk with impunity. Upper-caste elite use rape to humiliate an increasingly assertive dalit community or to suppress the growing assertion of women. Custodial rape is widely prevalent, with the police humiliating those under attack. In areas of class conflict, the army, para-military and police forces routinely rape and humiliate the womenfolk of those fighting for justice. This was to be seen during the Vietnam war, in Bosnia, in Africa, etc. In India it is to be seen in Kashmir, the North East, and in the Teleangana and naxalite movements. Even in non-violent movements, like the one against the Narmada dam, women have been raped.

Today, with the onslaught of Hindutva forces against the minorities, hundreds of minority women have been raped and killed with the backing of the state, in Gujarat. Even before this, during communal riots women have been raped to teach a community a lesson, to instigate another community to fight. Nuns were raped in Jhabua, Madhya Pradesh to teach Christian missionaries a lesson; dalit women are raped to warn the dalit community against asking for self-respect.

Moving on to the existing laws against rape let us first confront the biggest irony: Who is it that fights for the rape victim against the accused? None other than the state; one of the greatest perpetrators of violence against women, whose aim is to maintain the status quo of patriarchy. Though it gives the semblance of a welfare state, one that owns the responsibility of meting out justice to the wronged woman, as such she has no real voice in fighting out her case. The rape victim is only a mere witness in her own case. Her fate depends on the mercies of the police who did the panchanama, the public prosecutor, a government servant, the judge another representative of the state whose minds are filled with class, caste and patriarchal biases and pockets are filled with unaccounted money.

We can next examine the various loopholes in the law, which account for the low conviction rate in rape cases. Firstly, what constitutes the crime of rape according to the law? According to Section 375 of the Indian Penal Code, rape is committed when a man has sexual intercourse with a woman against her will or without her consent. Given the patriarchal biases of the judiciary and other wings of the state apparatus, which invariably brands a victim as "loose", "provocatively dressed", etc., this acts as a convenient loophole to let off the culprit.

The normal punishment for rape is a minimum 7 to 10 years imprisonment and the maximum is life imprisonment and a fine. The court has the power to impose a sentence for less than the minimum. To do this, it must explain the special reasons for giving lighter punishment in its judgment. Needless to say the court jumps at any opportunity to do so! Either the rapist is condoned for being too old or too young, fearing that his future life may be spoilt, or because he is the sole breadwinner and his family has to be considered, and so on. The law provides for stricter punishment i.e. rigorous imprisonment for 10 years or life plus a fine, under the various circumstances of custodial rape, charge of rape by a pregnant woman, girl under 12 and gang rape.

Even in these special cases, the court has the right to award lighter punishment giving adequate reasons. Section 354 of I.P.C. deals with outraging the modesty of a woman, which is a cognizable, bailable offence with punishment up to two years.

The plea of the defense is based around proving that the intercourse was not against her will. The raped victim’s word, that she did not give consent, is not considered valid (except in the case of custodial rape). While an act like rape can have no eyewitnesses, the victim has to prove that she had raised an alarm and put up a tremendous struggle. The attitude of judges, as reflected in the judgements, are material for black humour, for sometimes a judge considers the lack of injuries on the body as willingness, while in another case, the detailed description of resistance written out by a victim was considered too detailed to be true.

Thus, ten years after the changes that had taken place in ‘83 began another campaign for changes in the rape law. In the last five years many workshops held by women’s groups, legal aid centres and women lawyers have led to some proposals for changes before the Law Commission (LCI) who have given their recommendations. These recommendations were the outcome of a legal case waged since 1994 by an NGO named Sakshi in New Delhi, in dealing with the sexual abuse of an eight-year-old minor child, at the hands of her father, a government employee. In the course of the case, the Supreme Court urged the LCI to look into the existing rape laws and give recommendations for changes that incorporate the interests of both women and children. Along with Sakshi, IFSHA, AIDWA and National Commission for Women (all organizations that seek reform within the existing power structures) were consulted and these organizations gave their suggestions.

Changes recommended by the Law Commission in the Indian penal Code, 1860, Section 375:

It is clear that the above changes still leave ample scope for the major loopholes…that a woman has to prove that she did not give consent and give corroborative proof for this. The Law Commission has not accepted that ‘consent’ be replaced with ‘unequivocal voluntary agreement’. Marital rape still is not recognized. In addition, a campaign has begun protesting another drawback of the LCI recommendations—that the law is now being made gender neutral. Bearing in mind child sexual abuse, which includes abuse of boys, the law is proposed to be gender neutral. The law proposes to club women, children and homosexuals, each of whom are oppressed in different ways into the same category. In the name of broadening the scope of sexual abuse this recommendation only complicates matters. This opens the scope for men to charge women with sexual assault. Indian society has such a strong patriarchal bias, and the level of politics is so degenerate that it is not a far-fetched thought that such a provision will be misused. More seriously, the point is that each of these categories have their specificities and need special provisions to deal with them. Child sexual abuse is a serious social problem in India, and there is a need for a separate law to deal with it. Homosexual assault and abuse is an issue in which recommendations have been made without consulting those concerned groups or discussing the problems that are being faced. Most important in India, where physical and sexual assault of women is so rampant, and a major part of it socially and politically legitimized, what is the purpose of changing provisions on rape to make them gender neutral? Such an approach is divorced from the Indian social and political reality. Many women’s groups have also opposed this recommendation.

Recommended changes in The Indian Evidence Act 1872: Section 114A:

How do the laws in India compare with the rape laws in other countries? In the Philippines, where there has been a strong women’s movement, some positive changes in the rape laws have been made. The new laws recognize that rape is not a crime against chastity but a crime against persons and it is about human rights. It broadens the definition of rape to include sexual assault and puts this into two categories, one graver than the other. It implicitly recognizes marital rape as a crime. In America, where there had been a strong women’s liberation movement in the 60s and 70s there have also been changes in rape laws. In 1984, a New York court held marital rape exemption to be unconstitutional. Several other countries including Russia, Sweden, Denmark and Australia allow prosecution of husbands for raping their wives. Yet we find that in both America and Philippines there is a high rate of sexual violence against women, thus confirming our understanding that unless there is a revolutionary change in the class relations and the eradication of patriarchy, sexual assault against women will go on unabated. In the Indian context too, we can see the law failing to give justice not because of lack of evidence so much as lack of will. For example, 70 % of rapes are usually of minors, where the question of proving that the act was with consent doesn’t arise and the accused can easily be held guilty. Yet why do these crimes go unpunished? In the Gujarat genocide last March, a number of eyewitnesses to rapes exist...something that is usually impossible to find. But will these people be convicted?

It remains to be seen how many of these recommendations are accepted and in what manner. Hoping for more justice for women from the present Government is futile. All the ruling class parties are deeply steeped in patriarchal values and their elitist class/caste basis ensures that they legitimize rape as part of their overall subjugation of society. While giving populist, rhetorical speeches, and calls for the death penalty, etc., the major parties have condoned all, and even well publicized, cases of molestation and rape in places like Gujarat, Delhi (anti-Sikh pogrom), Kashmir, North-East etc. Cosmetic changes in the law are unlikely to help the rape victim. Besides, the patriarchal biases within the judiciary, police, and other sections of the establishment will further retard the process of gaining justice.

Rather than merely depending on the legal process all democrats must mobilize the masses to take direct action against the rapists and molesters at the local level. They must be humiliated and publicly condemned and made to compensate and apologise to the victim. The victim, on the other hand, needs to be socially and sensitively assisted to get over the trauma, and her self-confidence restored. While agitating for changes in the rape laws, social actions like ostracizing rapists, blackening their faces, the beating up of the rapist publicly, etc., could be effective, militant actions.

Yet, in the long run there is need to understand the link between rape as a weapon of subjugation, patriarchy and class exploitation. The movement must, in the final analysis, mobilize women to fight for a change in the basic structure of society that will eradicate patriarchy, and with it, rape, from the roots.

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