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                Patriarchal Institutions and Paper-Tiger Laws: India&#8217;s Sexual Violence Enablers
                shirly-com / Pixabay
                Patriarchal Institutions and Paper-Tiger Laws: India’s Sexual Violence Enablers

                The Hathras gang rape in Uttar Pradesh in September 2020 saw the mutilation and eventual death of a 19-year-old Dalit woman at the hands of upper-caste men. This pattern of caste-based sexual violence reappeared shortly in the Badaun province of Uttar Pradesh, with the heinous gang rape of a middle-aged Dalit woman by an upper caste temple priest and his accomplices. Within months of the Brutal Hathras gang rape being forgotten, yet again, the facts of the Badaun gang rape are dying a slow death, and slowly seeping out of public memory.

                Despite several such crimes having taken society by surprise in the recent past, we as a legal fraternity have failed to examine the nature of gang rapes and sexual brutalization as a distinct phenomenon from lone-wolf sexual crime. Gang rape (Section 376(2)(g) of the Indian Penal Code) is a crime that transcends considerations of lust and bodily hunger and instead is commonly used as an instrument of suppression to further the hegemonic narrative of caste, gender, and even class. Therefore, the extremely flimsy and fallacious argument made by a member of the National Commission for Women in lieu of the Badaun rape case, that ‘Women should not, under the influence of anyone, step out untimely’ is all the more unacceptable.

                For starters, her statement is premised on the idea that what drove the perpetrators to the crime was a spur-of-the-moment desire that they experienced, and not something that they were mulling over for a considerable period of time. This presumption implies that by stepping out alone, the victim brought her predicament and suffering upon herself, and like numerous other comments before it, places the onus on the victim for having put herself in a position of vulnerability, or expects her to compromise and accommodate the crime. However, it fails to consider what makes said position a position of vulnerability? And, why is it that vulnerability in sexual crime is measured on a different metric from that of vulnerability in other forms of crime?

                It is extremely unlikely that a victim of murder would be questioned with regard to his intentions while making himself available at the crime scene (did he want to be murdered?), or that a victim of theft would be told that by his conduct, he had in fact consented to his possession being stolen. The fact that Indian society is unable to separate the sexual act(s) of coitus from the brutal acts of rape and gang rape is evident in this narrative.

                A victim of rape being gruelingly examined and cross-examined so as to project that she consented, while she vehemently denies consent is an extremely problematic phenomenon in Indian Courts. In fact, Courts have made mind-numbing observations in the past with respect to the conduct, sexual history, and intentions of rape victims. These range from ‘Upper caste men would not rape a lower caste woman’(here), ‘it would be difficult to believe that a girl who is menstruating would be subjected to a rape’(here), ‘Passive submission must signify consent’(here), to ‘A feeble no may mean a yes’(here), and most recently that ‘It is unbecoming of an Indian woman to sleep after being ravished’(here).

                The question of why the argument of consent is brought up, as though it should alter the considerations of the Judge, is a subject to be examined in depth. Say, for the sake of argument, if a woman were to have consented to sexual intercourse with three men, is it likely that she consented to being brutalized? To have her tongue slashed or spine broken? If a woman has previously had sexual intercourse with a partner of her preference, should she be just as quick to consent to sexual intercourse with strangers? If she were to have a romantic affair with a man, does that make her appropriate target for sexual brutalization? If a woman were to consent to sexual contact not of the nature of intercourse, does that imply that she wants intercourse? Is it not sufficient that there is evidence of sexual violence, of rape, and murder?

                The procedural impediments to justice in a rape case are supplemented by social impediments, such as that of dealing with prejudice during medical examination and the recording of statements. The machinery for redressing sexual crime in the country is in fact more accommodative to the accused than to the victim, making the reporting of sexual crime and rape akin to setting off a long and extremely painful process for the victim. The victim, if alive, is dissuaded from pursuing action by individuals at every stage of prosecution, beginning with her family, and culminating with the agencies of the court. Further, if the victim is dead, it is likely that her family is forced to choose between returning to a normal life and between making unimaginable sacrifices. In Tukaram v the state of Maharashtra, the sessions court, while acquitting the accused, made extremely repugnant remarks with regard to a minor Adivasi rape victim calling her a ‘shocking liar’ whose statement was ‘riddled with falsehoods and improbabilities’, even stating that she, as a child, had consensual sexual intercourse with two policemen, not amounting to rape. The justice being dispensed in the above instance was defiled to the extent that normally disposed persons may have held back from making a further appeal to the decision, choosing instead, to save face, and to escape any more stigma or ostracism.

                It is evident, that in India, for every single rape case that ends in conviction and sentence, there are innumerable cases of rape that have failed to even cross the threshold of being registered as a First Information Report FIR (FIR under Section 154(1) of the Code of Criminal Procedure, of being reported, of being expedited, of being investigated, or of reaching the courts at all.

                This takes us back to the Nirbhaya gang rape of 2012, which occurred overnight in a moving bus in the Indian national capital, leaving the nation shocked at the atrocious nature of the sexual violence involved. While the Nirbhaya gang rape eventually ?gave us the Justice Verma Committee Report, the ground-realities in every single case of rape since then are largely the same as before. If anything, the conviction and hanging of the Nirbhaya Gang-rape convicts must be largely credited to the pursuance of the case by the mother of the victim, and lawyer Seema Kushwaha, and not to any self-sufficient state machinery.

                The institutionalized prejudices, the dissuasion, the stigma, and the character assassinations thrive on the suffering and trauma of the victim. India, as a country, has failed to take a much more hands-on approach to rape as a crime, and continues to treat it as a mutated version of romance, or an off-shoot of consensual sex. The very questions posed to victims of rape are riddled with undertones of disbelief, skepticism, and innuendos. This flawed approach to sexual crime is nothing new to India, and has only by slip of tongue made itself visible in institutions such as the National Commission for Women, who serve as handmaids to further the political agenda of the incumbent government. It is now time to demand rights for women on more than just paper, and to call for safeguards against institutional abuse of power to deny justice to the victims of sexual crime.

                Shruti Avinash Raikwar is a first-year student at NALSAR University of Law with a keen interest in Constitutional Law, Jurisprudence, and Criminology.

                Suggested citation: Shruti Avinash Raikwar, Patriarchal Institutions and Paper-Tiger Laws: India’s Sexual Violence Enablers, JURIST – Student Commentary, January 28, 2021, http://www.itbkb.cn/commentary/2021/01/Shruti-Avinash Raikwar-Patriarchal-Institutions-Sexual-Violence-India/.


                This article was prepared for publication by Anne Bloomberg, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org


                Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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