The recognition of rape into the criminal law was as an offence against the property and not as an offence against the human body. However, in recent times, the idea of how rape is understood has gone about a fundamental change. This change has ignited a debate whether a single offence viz. ‘sexual assault’ should encompass the numerous sexual offences that exist today. The 2013 Amendment was enacted in response to the 2012 Nirbhaya rape case. It is a departure from the penile-vaginal understanding and now covers penetration of the mouth, urethra and anus. However, one thing which was not deliberated upon was grading different kinds of rape. As a result, penile-vaginal penetration called for the same punishment as oral sex. The downfall of this was revealed after the Farooqui case. The prosecutrix was a student studying in Delhi. Mahmood Farooqui, a film director had invited her to his home to accompany his wife and him to a wedding. When the prosecutrix arrived, she found that his wife was not there, Farooqui forcibly performed oral sex on her. When the Trial Court found him guilty, various groups represented and argued whether the seven years’ of imprisonment was fair for the offence. While the purpose of the amendment was well founded, the desired result in the adjudication of rape cases has not been achieved. Per contra, it has led to certain unintended consequences, such as a drastic reduction in conviction rates in rape cases.
The Importance of Further Change
Subjecting the victim without her consent to a sexual act, the humiliation which accompany the victim post the act make a travesty of the concept of autonomy of an individual. The change bought in by the 2013 amendment has had the unintended consequence of non-penile-vaginal rape being put on a much lower pedestal than acts involving penile-penetration. Another problem that remains is the taboo surrounding rape. These were captured very well by Justice Krishna Iyer when he said:
“When a woman is ravished what is inflicted is not merely physical injury, but the deep sense of some deathless shame. A rape! A rape! Yes, you have ravish’d justice; Forced her to do your pleasure.”
Broad Definition of Rape and its Implications
First, as stated by the Justice Verma Committee a benefit of this approach is that it does not require complicated definitions of ‘penetration,’ which inevitably fail to reflect the broad range of violations to which a woman may be subjected. Second, the legislative intent behind Canada restructuring and renaming the offence was that it would help in increasing the conviction rate by reducing the taboo around a rape victim. They felt, firstly, that the stair-casing/gradation system would help in securing more convictions. Secondly, renaming the offence would remove help in removing the shame and humiliation around the epithet of ‘rape’. A similar model was introduced in Michigan, U.S.A., where it has been observed that the stair-casing and expanded definition of penetration have contributed to the increase in reporting and convictions but renaming of the offence has been of no consequence. Third, if sexual assault and activities are labelled under a common banner of ‘rape’ it may dissuade criminals attempting to commit a certain lesser offence because of the fear that they would be seen as ‘rapists’. This can be seen as the deterrent effect of ‘fair-labelling’. However, such an approach would not be suitable in India due to two main reasons, the concept of fair labelling and the failure of the Canadian system.
The Canadian Law: A Must or Must Not Consider for India?
In 1982, in Canada a number of crimes including rape and indecent assault were removed from part IV of their Criminal Code dealing with sexual offences and were added to part VI which relates to offences against the person and reputation. The statute does not discriminate between various kinds of touching, from groping to penetration. All of them are sexual assaults.
Where and Why does the Canadian Model fall short?
The reformed Canadian sexual assault law which led to a broad banner definition of rape was a legislative response to a growing constituency of critics, including researchers, advocacy groups, politicians, and members of the public, all of whom identified the deficiencies in the earlier law that led to several adverse consequences. These included negative treatment of the sexual assault victim by the criminal justice system at all stages of the process beginning with a report to police and ending all too infrequently with a conviction. The main intent behind restructuring and renaming the offense was to secure more convictions, and reduce the stigma suffered by victims of rape. It was thought that the stair-casing feature would result in more convictions, while renaming the offense would help in removing some of the guilt and humiliation that society has traditionally associated with the crime of rape.
The 1983 amendment was successful in achieving one of the goals that inspired it, there has been an increase in reporting however, there is no cause and effect relation which can accurately cover the same, it may be mere correlation. Ironically, its success has been in attracting more victims into the system, rather than in changing the way that the system functions. The reforms have had no significant effect upon the decision as to whether a case is founded and as to whether a charge is laid in the case. The Canadian system has largely failed to produce the anticipated results. There were nine out of ten sexual harassment incidents that were not reported to the police. Hence, despite the exclusion of the epithet of ‘rape’, the taboo remains embedded. Another study has shown that the common labelling could have resulted in the victim’s feeling that what they experienced as sexual assault was not serious. The sentencing decision which is left to the wisdom of the judges has led to too much discretionary powers and resulted in inconsistent sentences being given. The concept of rational sentencing, which is central to the justice system, will be broken by having such an inconsistent system.
Such a system would especially be detrimental in India, where judges have rarely explained their rationale behind pronouncing a particular sentence in rape cases. There are abundant instances of Judges relying rape myths while deciding on sentencing. For example, Judges have considered past sexual history of victims, absence of injury marks and even the age of the victim as a point of consideration while pronouncing sentences. Allowing this system in the hope of removing the stigma and stereotypes would just shift it from the guilt determining stage to when the sentences are being awarded.
A Call for Fair Labelling
Encompassing rape into a broad category of sexual assault would risk dilution of the social meaning of rape understood by the public at large. This would risk violating ‘fair-labelling’ according to which the label given to an offence should represent that offence in a reasonable manner which is in consistence with the ‘nature and magnitude’ of the offence. It is important to follow the principles of fair-labelling due to the following reasons: First, it serves as a check on the scope of sentencing. At the sentencing level, an all-encompassing offence label gives too much judicial discretion. A specific label will counter this through consistent prosecution. Second, being fair to the offender. Fairness demands that the misconduct is adequately portrayed to the general public. This is important because labels often have a symbolic function. The label determines the level of censure that the offender will be subjected to. If the label is failing to describe the offence fairly, the offender may have to face unfair stigmatization. The Scottish Law Commission cited this explanation when it proposed that rape be kept as a distinct offence, separate from other forms of sexual assault. Since the ‘rape’ label plays a significant role in voicing social disapproval with a certain kind of sexual wrong. An analogy could be to see the difference between Murder and Culpable Homicide, these two offences although have the same effect (of homicide) but are understood in different lights and conflating the two would lead to a violation to the principles of justice. It is also important that the label of the offence, represents the offence fairly to outside agencies. An example: Two persons, one convicted of rape (who has served say, 7 years of imprisonment) and the other of sexual assault (who did not serve imprisonment but made to pay fine), under the broad banner, both would be classified as sexual assault offenders or rapists. However, this could be misleading to employers and public at large. Third, being fair to the victim. Victims of penile offences would prefer the perpetrator to be prosecuted as a ‘rapist’ because the conviction as a ‘sexual assault offender’ would not sufficiently represent the harm to which the victim was subjected. Fourth, the label would help to represent the public understanding of the offence in a pragmatic manner.
In 2006, the National Commission for Women recommended an amendment to the then rape laws. It advocated deleting Sections 354 and enactment of a broad offence of ‘Sexual Assault’ where punishments would vary depending on the act; if it is an act of penetration punishment may extend to 10 years, if it is includes touching any body part for a sexual purpose punishment may extend to 5 years. The UN handbook also recommends that ‘rape’ and ‘indecent assault’ be combined and put under a common banner of ‘sexual assault’.
Shraddha Chaudhary argues that the distinguishing factor between rape and acts considered as sexual harassment was the possibility of pregnancy. Ever since the 2013 Amendments and widening of the scope of penetration, this distinguishing factor has vanished. Chaudhary states that other sexual acts such as ejaculating onto her face or body without even touching her, touching one’s penis to her breast should be clubbed under a broad banner which may either be called as rape or sexual assault. This approach has in fact been implemented in Canada.
Mahmood Farooqui, a famous film-director was accused of committing oral rape upon the victim. The trial court found him guilty but applying an erroneous and patriarchal interpretation of ‘consent’, the Delhi High Court acquitted him. This incident is representative of the fact that a system where penile-vaginal penetrative violation reporting is poor, is unlikely to offer the same degree of consideration or significance to cases of non-penile-vaginal violations. Expanding the definition further or classifying acts amounting to sexual assault and rape under a common banner would in fact bolster the attitude of various stakeholders (including the Courts and general public) to view acts which do not involve penile-vaginal penetration as inferior. On the basis of the above discussion, it can reasonably be said that the new system would run the risk of dilution of offences where there is no penile-vaginal penetration. This would in fact take us back to the times, where such acts were not viewed as serious enough. The recent judgement of the Bombay High Court is indicative of the fact that there remains a tendency to downplay acts which although may be the same to the victim, are not viewed as such by the courts. The court held that the act of pressing the breast of a 12-year-old, in the absence of details as to whether the top was removed or whether the offender’s hand was inserted inside the top, would not be considered as ‘Sexual Assault’ under the POCSO Act, 2012, it would rather amount to ‘Outraging Modesty of a Woman’. I think the status quo should be maintained in regard to having separate offences under Section 354, 375, 376 and 509 of the Indian Penal Code, 1860 for classification of acts. What is more important at this stage is to systematically and systemically remove the stereotypes, give more focus to the woman’s autonomy and bodily integrity. I agree with Prabha Kotiswaran who disagrees with Upendra Baxi’s argument that legal reform invariably leads to some form of institutional reform. Even if the shortfalls of the broad banner offence can be overcome and it is implemented, it will become a dead letter in law until and unless the institution of police (for reporting), judiciary (for adjudicating), and society (for support to the victim) are sensitized and made more robust.
(This post has been authored by Mr. Tushar Anand, a first year student of the 3-year LL.B. programme at Jindal Global Law School. He shares interests in Criminal and Constitutional Laws)