Gender, Law and Sexual Assault

Author(s): M. P. Singh
Source: Economic and Political Weekly, Vol. 32, No. 11 (Mar. 15-21, 1997), pp. 543+545-550
Published by: Economic and Political Weekly
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 Gender, Law and Sexual Assault
M P Singh

Feminist perceptions of law have generated several redeeming strategies in many countries. To understand the
impact of feminist ideas and the movement on law reform in India an attempt is made here to look at changes
in the rape law and compared it with the law reforms undertaken in Canada.

FEMINIST consciousness has influenced and children (Article 15). It has made of social reform. The reform campaign was
jurisprudence, leading to a demand for new provisions to prohibit traffic in human beings
focused on widow remarriage, polygamy,
juristic precepts moulded in the experience and for just and human conditions of work women's property rights, education, the
and image of women to emancipate them and maternity relief (Articles 23 and 42). It system of 'sati' and child marriage. The
from continued oppression due to preferentiisala constitutional duty of every citizen to reformers introduced a bill in 1891 raising
socio-cultural construct of gender. Feminist renounce practices derogatory to the dignity the age of marriage of girls to 12 years. The
approaches to law have developed in various of women (Article 61A). One-third of seats supporters of partiarchy opposed the bill in
phases generating dominant ideological in local bodies for women are reserved the name of religion and Hindu traditions.
paradigms and redeeming strategies. In (Article 243D). There is a plethora of In order to be brief, we select the Indian
developed societies, among other things, its legislations in the form of affirmative action patriarchal response to the Age of Consent
impact on the law of rape has, however, been to protect, ameliorate and empower women Bill, 1891 as the test case showing values
concrete. A comparative study of the legal which could be brought into the 'result and practice of patriarchy in India. According
approach to this problem would lead to equality' approach of legal feminism. Law to conservative opinion the primary function
significant conclusions. First, it could explain reform dealing with women's issues in India of a woman was procreation and therefore,
the impact of feminism on law reform, and has been the result of social reform movement she should be married at the first occurrence
secondly, the domparative nature and inten- starting since the beginning of 19th century of puberty. They made no di stinction between
sity of patriarchy and the male resistance to during the national movement of challenge girlhood and womanhood. Some of the British
any attempt to limit traditional male sexual and resistance to imperialism (Jayawardena). lady doctors who treated injured 'girl-wives'
rights. A study of the Indian law of rape is This social movement to reform male- appealed to the British government against
attempted here to understand the phenomenon dominated traditional structures, which is this kind of brutality upon girls below 12
with reference to Canadian instances wherever generally studied as growth of feminism, has years of age. This brutal marital rape resulted
appropriate. The assumption is that patriarchy, been mainly the humanist component of in various grievous injuries like haemorrhage,
as a system of value and practice, is weakening Indian renaissance and freedom struggle. ulceration and paralysis of lowerextremities.
more in Canada than in India. Reasons for The legal campaign to ameliorate the The instance of the Age of Consent Bill
the difference may be found in the cultural conditions of women in India, now, is the presented in 1891 is indicative of the rigid
milieu of developed and developing societies. extension of humanism into law rather than and exploitative nature of patriarchy in India.
Feminist issues have emerged due to incorporating the niceties and nuances of Patriarchy, true to its definition in the Indian
recognition of the fact that while sex is bio- western feminist consciousness emerging context, prevails in the form of domination,
logically determined, gender and the role from a particular stage of capitalist develop- a mode of family coercion and cultural
attached thereto is socially and culturally ment. Feminism in India, however, could not construct of property ownership. It is a form
transcend the history-specific patriarchy
constructed in the context of specific histories. of appropriation of women's labour, sexuality
Gendered oppression of women is common continued in some form or the other [Baxi and fertility and it is a form of the right of
and has a cross-cultural dimension. But sub- 1987]. Though law reform in India, is quite the male which should be enforced by
ordination of women under patriarchy and visible, less attention is paid to legal femi- physical violence - including rape which is
the strategies foremancipation invite specific nism, which argues for the necessity of the ultimate and grossest form of violent
consideration of class, religion, race, ethnicity incorporating women-centred orgynocentric expression of patriarchal and class oppression
and quality of economic and political develop- values in all major social institutions in- [Gandhi and Shah 1991 ] or socio-economic
ment. Feminists have adopted different cluding law [Miles 1985; Boyle et al 1985]. sanctions or both. The components of
While women's demands for formal equality
paradigms of change ranging from liberal to patriarchy corresponding to ideology and
Marxist and radical feminism. Law, with its have, however, been met and legal systems institutional practices were as follows
structural limitations, hag been considered have even recognised protective discrimina- [Kosambi, 1991]: (i) The most important
by tome to be an instrument of transformation tion in their favour, for majority of women goal of life of woman is to act as vehicle
[Smiart l9941tfbrexample,'result-equality'the role of law has been very limited in terms for procreation of sons. The seed (male) has
liberal feminist approaches to law without of women's problems of domination and primacy over soil (female).3 Even in the act
challenging the existing social, economic genderdiscrim-ination. This has led feministsof reproduction man is superior to woman.
and political structures including the legal (ii) The 'samscaras' (religious sacraments)
to argue for the study of patriarchal instances
system, recognise that these structures are of law's oppression of women. Reference to lead to spiri?iual excellence but woman is
gendered, therefore, strategies of law reform the value and practice of the dominant entitled to only one of them, i e, marriage.
must be carefully designed to take into patriarchal social order, therefore, may be (iii) Women could be owners of property but
account their actual and often different effects
relevant to understanding gender issues in they could not dispose it of not even the
upon women and men [Shropel 1985]. the Indian context. 'stridhan' (bridal wealth) whereas man has
It is important to mention that the Con- full property rights over house, land,
INDIAN PATRIARCHY
stitution of India has guaranteed equality livestock, sons, wives and maids. Thus, she
before law and eqal protection bi laws The western impact on Indian middle class was deprived of participation in economic
(Article 14) and prohibits discriminiVion during
on the colonial rule in early 19th century process. (iv) Woman was also excluded from
the ground af sex and it has einpowered theevoked a response of social reform. Certain public life as she was alleged to have:
state to make special provision for Women aspects of patriarchy2 attracted the attention uncontrollable sexuality and she could,

Economic and political Weekly March 15, 1997 543

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therefore, be polluted. (v) Man is the insider amendments, came out with various positive eliminated from definition of sexual violation.
in kinship relations whereas woman is the recommendations both substantive and pro- In August, 1991 the Supreme Court of
outsider having loyalty only to her husband. cessual [Agnes 1992]. However, the bill pre- Canada in Seaboyer and Gayme (60CCC
These elements manifested through various; sented to the parliament excluded all those (3d) 321 (SCC)) struck down S276 of the
institutions like child marriage and enforce(d demands and recommendations which could Criminal Code which limited thequestioning
widowhood. A woman's status was deter- have made an impact on the power relations of past sexual history of the victim of sexual
mined in terms of her usefulness. She was based on patriarchy and also on ideas such assault as violative of the rights of the accused
used - from early childhood by early con,- as that women are morally underdeveloped to a fair trial. This decision was considered
summation in child marriage; after the death and female sexuality is complementary to "by women's groups across the country to
of her husband she becomes 'unuseful' soul male sexuality. strike a devastating blow to women's rights
[Altekar 1991]. Widowhood was enforced Some important features of the 1983 in Canada". The decision to admit or exclude
upon her as a harsh institutional practice. amendments in the law of rape were (i) the evidence of victim's past sexual history,
During the national movement, along with criminalisation of custodial sexual inter- thus, was left largely to the discretion of
legal reform inspired by humanitarian and course by policemen, public servants, individual judges. However, the Seaboyer
liberal values, the woman was elevated to managers of public hospitals, remand homes decision inaugurated an active new phase of
the myth of 'mother-India' and a social and wardens of jails even if sexual inter- redefining and restructuring the law of sexual
philosophy of deprivation and sacritlce course is with the apparent consentof women, assault. Taking help from the di ssentingjudg-
covered up the motives of patriarchy in India.
(ii) provision for minimum sentence of 10 ment in Seaboyer and perhaps the strongest
We shall examine the current problemratic years in cases of custodial rape, gang rapes, and most effective and historic lobby effort
of gender discrimination and sexual as;ault rape of pregnant women and girls under 12 by women's groups in Canada, in August
through two basic concepts. One, that lLhere years of age and seven years in all other 1992, bill C-49 was introduced which focused
are patriarchal structures in all areas of society
cases. A regressive provision was added on three main issues: First, bill C-49 set out
including law. These structures are to be making media publication of rape-trials a a new test to determine whether a complai-
demolished. Two, victimologically spe;aking, bailable offence, and (iii) now, consent nant's sexual history may be admitted;
the impact of crime differs in intensilty and became invalid when a woman, by reason second, it provided a definition of "consent
social consequences genderwise, forinwstance,of unsoundness of mind, or intoxication, for the purpose of sexual assault offences;
sexual assault has very wide and deva.stating was unable to understand the nature and and third, it restricted the defence of mistaken
effects on women whereas it is not so consequences of the act, to which she gave belief on consent".
consequential to men. We shall study, further, herconsent. Declaring such consent as invalid Bill C-49 made an advance in defining
with special reference to law of rape, the seems to be a futile legislative exercise in consent as "the voluntary agreement of the
operative aspects of the above concepets taking view of Section 90 of the Indian Penal Code complainant to engage in the sexual activity
Canadian law as a reference irrodel. A if it is known to be given under fear or in question".
deviance from the Canadian model provides misconception; consent given by an insane The proof of consent is negated when it
knowledge of the gaps in the Indi2tn context or intoxicated person; or consent given by is obtained: (i) Where complainant is "incap-
which may provide a meaningful discourse. a child under twelve years of age. Although able of consenting to the activity"; (ii) When
the amendments were inadequate in view of the agreement is expressd by a person other
RAPE: LAW REFORM
feminists' demands, the 1983 enactment was than the complainant; (iii) Where "the com-
We have taken the statutory ref orm in rape
an indication of some measure of success to plainant expresses by words or conduct, a
law in Canada as the model of comparison the campaign and was welcomed as a pro- lack of agreement to engage in the activity",
with the Indian conditions in tern is ofjudicial gressive step - a beginning [Agnes 1992]. i e, a "no means no provision"; (iv) Where
trends and limited law reform s. The early In Canada, extensive changes to the old the accused abused a "position of trust, power
1980s, particularly 1983, is ivlnportant for law of rape by the 1983 amendment, and the or authority"; (v) The past sexual history of
this comparative study in the sense that both symbolic messages contained therein are as the victim is not admissible to show consent
in India and in Canada the law of rape went follows: or lack of credibility; and (vi) A judicial
through significant changes. In Canada it discretion would be exercised in admissibility
Violence vs Sex
was the result of a prolonged c ampaign by on the basis of its probative value in the
feminist writers and women's o rganisations A number of crimes including rape and interest of justice.
and also due to the incorporation of the indecent assault were removed from part IV In sum, the law on sexual assault, in Canada,
Charter of Rights and Free,dom in the of the Criminal Code dealing with sexual refrains from the overt sexism charateristic
Canadian Constitution in 1982. Section 15 offences, public morals and disorderly of the former rape law. Married women are
oftheChartergranted rightofeqtiality without conduct, and added to part VI relating to no longer presented as the sexual property
discrimination on the basis c)f sex. Such offences against the person and reputation. of their husbands. Neither are sexually
rights and freedoms are guarant eed under theNow, gender-neutral sexual offences are liberated women assumed to be a common
Constitution of India from thfe beginning. divided into three categories; sexual assault,
male property. Although the new law
In India a massive campai gn including sexual assault with weapon or threat to third
continued to allow some evidence as to the
public protests and wide media publicity wasparty causing bodily harm and aggravated sexual conduct of the victim, complainants
launched after the infamous P dathura judg- sexual assault [Boyle 1994]. The change of are not presumed a priori to be mendacious
ment by the Supreme Court in 1979. The nomenclature from rape to various categoriesand morally suspect. Victims of sexual
principal gain of the campaigr i was that rape,
of sexual assault was an attempt to focus on aggression are not automatically assumed to
which was hitherto a taboo su ibject emerged vihAence rather than sex. The offence of be female. And female sexuality is no longer
as a problematic. The camp,aitgn in India had
sexual assault, now, includes male homo- defined exclusively by male sexuality.
two major demands. One:, shifting of the sexual rape also and is not limited to the
RAPE: JUDICIAL CONSTRuCrION
burden of proof of the consf ent: on the accused,traditional definitional areas like meaning of
and two, in a rape trial victirnm's past sexual consent, mistaken belief and fraud. The Legislative reform in the law of rape had
history should not be exvcay ated. The Lawdiscrimination still exists yet symbolically progressive symbolic messages and the 1983
Commission of India, appoiinted to suggest sex discrimination has been attempted to be amendments, in India, could be said to be

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some measure of success to the feminist conviction where only the intention of the Supreme Court in State of Orissa vs
campaign following the Mathura case. But accused is relevant. Those who require proof Gangadhar Behuria (1992 CrLJ 3814). In
it is the judicial construction of the offence of physical resistance must be aware that it this case the accused, above 40 years of age,
which really matters to the victim, to the is likely to lead to permanent injury or murder raped a teenager twice in the darkness of the
offender and to the society. We will examine of the victim [MacNamarra 1977]. night under the threat of disclosure to the
here, the role of courts from a feminist socio- In the year 1983 by the Criminal Law police and others nearby. On the issue of
legal perspective. In the analysis of judicial Amendment Act, Section I 14-A was inserted consent it was observed:
decisions the misogynic treatment of rape in the Indian Evidence Act, 1872 wherein Taking into consideration the dominant
victims by the police and prosecutors could non-consent shall be presumed by courts position of the accused, helpless situation in
also be discerned. where sexual intercourse by the accused is which PW I (victim) was situated and belief
proved in the cases of custodial rapes, that police is near about, disclosure of event
Consent immediately afterwards to those who were
pregnant women, women under twelve years,
present .... and disclosure of the event to her
The major component of the feminist and gang rape. The symbolic message
mother on her first meeting with her after
campaign after the Mathura case was incorporated in such provisions is being
the event, are circumstances to come to a
regarding the construction/deconstruction of reflected in judicial decisions. For example,
conclusion that she had neither consent nor
consent in the definition of rape. Mathura, in Sheikh Zakir v State of Bihar (1983 CrLJ
was she willing for sexual intercourse with
a 16 year old tribal girl was raped by two 1285 Supreme Court), it was held that absence the accused and accused has sexual
police constables in a latrine situated within of any injuries on the person of the prosecutrix intercourse with her against her will as well
the compound of police station. The Supreme may not by itself discredit the statement of as without her consent.
Court, in its turn, however, held that the fearthe prosecutrix, and she cannot be disbelieved In spite of the repeated demands by
was not the fear of death or hurt as required merely because she was a helpless victim feminists, an important aspect of rape law
by clause thirdly of Section 375 of the Indian who was by force prevented from offering which remains more or less unchanged is
Penal Code.4 And any fear not amounting serious physical resistance. In Balwant Singh that lack of consent must be proved beyond
to fear of death or hurt does not vitiate the (AIR 1987 SC1080), a school-going girl all reasonable doubts by the prosecution.
consent in the offence of rape. Insisting upon aged about 19 years was gang-raped. It was Here, the socio-cultural factors in the
the circumstancial evidence, it was held: argued in appeal, before the Supreme Court, construction of a woman become very
The circumstancial evidence available, that the absence of injury on the back of the important and any decontextualised inter-
therefore, is not only capable of being prosecutrix or any part of her body falsifies pretation in the name of objectivity may
the case of forcible rape and suggests that
construed in a way different from that adopted result in serious injustice to the wronged
by the high court but actually derogates in the prosecutrix did not offer resistance. The woman. In contrast to the social ecology of
no uncertain measure from the inference court found the argument devoid of any the western world, a girl or a woman in the
drawn by it(Tukarain vs StateofMaharashtra merit and observed that a teenage girl in thetradition-bound non-permissive society of
AIR 1979SC 185 at 189). presence of accused persons, four in number,India would be extremely reluctant even to
The Supreme Court, throughout, disbelieved was not expected to offer such resistance admit thait any incident which is likely to
the tribal girl and acquitted the accused on
as would cause injuries to her body. reflect oni her chastity, had even occurred.
the basis of a prior-i judicial construct of Contextualisation and perspectivity [Razack In the spetcific context of the Indian social
consent:
1991; Sandel 19821 in cases of rape are beingmilieu, its social mores, its non-permissive
Her failure to appeal to her companions who gradually accepted by courts and consent is values and its code of life, the complainant
were not other than her brother, her aunt andjudicially defined to mean active will in the
of rape is generally truthful and, thus, non-
lover and her conduct in meekly following mind of a person to permit the doing of an consent is implied in it. Even though 'non-
(Ganpat) appellant and allowing him to have
act and knowledge of what is to be done or consent' is presumed in custodial rapes, the
his way with her to the extent of satisfying
of the nature of the act. Consent supposes definition of consent as "the voluntary
his lust in full, makes us feel that the consent
a physical power to act, a moral power to agreement of the complainant to engage in
in question was not a consent which could
act and a serious, determined and free use the sexual activity in question" incorporated
be brushed aside as 'passive submission'.
of these powers. Every consent to act involvesin bill C-49 of Penal Code of Canada may
The concept of 'consent' constructed in the
submission, but it by no means follows that be more functional in the law of rape in the
Mathura case has, however, been reinforced
a mere submission involves consent (Vijan Indian context.' Feminist writers have
by requiring the proof of 'utmost physical
resistance'. In Vijayan v State (1993 (CrLJ Pillai vs State of Kerala 1989 Kel LU 234). questioned the consent element of the
2364 at 2373) there was a gang rape of a Rabinarayan Das vs The State (1992 CrLJ definition of sexual offences on the basis that
married woman wherein the consent was
269) is a case where the accused committed it is derivative of male rather than the female
presumed on the ground that: rape on a blind girl after her abduction. It perspective and it has been observed:
was argued on behalf of the accused that the If we are not at the point where it is appropriate
...if two persons one by one had sexual
absence of injuries on her person and also for the law to presume non-consent from
intercourse, there would have been injuries
lack of physical resistance established silence... at the very least the criminal law
on her private part, ...her body and abrasions
ought to say clearly that women who actually
consent. The court, disagreeing with the plea,
on the ankle and on the back.
defined consent to mean: say no must be respected as meaning it; that
The requirement of serious or utmost
... agreement, community of feeling and non-consent means saying no; that men who
physical resistance to prove 'non-consent'
opinion, unanimity, to agree not to resist or proceed nonetheless, claiming that they
in the offence of rape is based, perhaps, on
prevent, to acquiesce in... obviously consent thought no means yes, have acted
the Freudian conjecture that women's lack involves no denial, no resistance. It cannot unreasonably and unlawfully [Estrich 1989].
of resistance stems not from fear but rather be equated to inability to resist out of
from an unconscious need to be ravished or helplessness.
Pentile/Non-Penile Rape
from some element of masochism or self- It was observed, further, that absence of One of the objectives of criminalising on
hate. It may be submitted that the victim's
violence or stiff resistance may even suggest the penile rape has been to protect patriarc
behaviour may be relevant, sometimes, onlyhelpless surrender due to sheer timidity and marriage. Heterosexual penetration was the
to deciding the appropriate treatment of the would not amount to consent. This line of exclusive domain of the husband due to his
offender but not for the proof of guilt for thinking is manifest in the judgment of the desire to maintain sole access to a woman's

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vagina arising from his need to govern punishment [Agnes 1992]. Definition of rape tion must have logic firmly planted on the
in 'male genital terms' suggests that priority
impregnation, progeny and inheritance rights. Indian soil and judicial eyes focused on the
The woman was everywhere regarded as a of law is to retain exclusive control over a Indian horizon. If the evidence of a woman
species of property, which passed into the woman's vagina than to protect woman's or a girl are viewed with lenses tinged with
husband's family on her marriage [Altekar sexuality or personal integrity.doubt, disbelief or suspicion, the charge of
1991]. In India also marriage was made In the beginning the emphasis on the
male chauvinism in amale-dominated society
obligatory so that men may leave their lineage
requirement of other evidence apart from the
will be justified. It can be discerned that
behind them through procreation.6 testimony of the complainant seems to contain
according to the emerging judicial opinion,
Historically, the criminal act of rape, as the idea that women are morally a statement made by the wronged woman
viewed by men, was not sexual assault, but underdeveloped and their testimony should carries more weight than the evidence of an
a trespass against his right to control vaginalnot be trusted. Courts followed the English ordinary witness and in absence of strong
access to all women who belonged to him. law that the advisability of corroboration militating circumstances corroborative evi-
Many western countries have already should be present in the mind of the judge dence is not required.
abolished the distinction between penile and except 'where circumstances make it safe to The earlier judicial demand of substantial
non-penile sexual assault (Section 2 Crimes dispense it'. For example, in Pratap Mishra corroboration was forcefully refuted in
Amendment Act p9). In Canada, forexample, vs State of Orissa, a 23-year-old woman was Krishan Lal's Case. Justice V R Krishna Iyer
the structure of sexual assault, through the raped by three persons in their youth. The of the Supreme Court, observed:
Criminal Law Amendment Act, 1983, has accused were acquitted by the Supreme Court The court must bear in mind human
done away with all requirement forthe Crown
on the grounds that first, there was an absence psychology and behaviour al probability when
to prove penetration of the vagina by the of marks of injury on her body suggesting assessing the testimonial potency of the
penis due to the fact that all the sexual assault the absence of stiff physical resistance and victim's version. The inherent bashfulness,
offences now share a common definition of second, corroborative evidence, being an the innocent naivete and the feminine
assault contained in Section 244(1) which imperative component of judicial credence tendency to conceal the outrage of masculine
refers in general terms to the application of in rape cases was also absent. In Gurucharan sexual aggression are factors which are
force or the threat of it. Penetration by other Singh vs State of Haryana, it was held that relevant to improbabilise the hypotheses of
objects may be more painful, offensive and although a prosecutrix is not an accomplice, false implication.
disfiguring and may involve a risk of social herevidence, as a rule of prudence, is viewed The above line of thinking on the relevance
stigma and psychological harm [Brounmiller by courts unfavourably unless reinforced byof corroborative evidence seems to be settled
1975]. The patriarchal and pregnancy-centred corroboration so as to satisfy the court's when the same judge in another case
definition of rape has lost its relevance for, conscience that she is telling the truth and continued to observe in strong feminist voice:
the law of rape, in modem times, covers that the person accused of rape has not been
When rapists are revelling in their
prepubescent, menopausal, sterilised, in- falsely implicated.
promiscuous pursuits and half of human kind
fertile women and also those practising However, the social and cultural specificity - womankind - is protesting its hapless lot,
contraception [Temkin 1982]. of women, in India, is now being gradually when no woman of honourwill accuse another
In India, penis penetration continues to be recognised by courts. Judges have shown of rape since she sacrifices thereby what is
the governing factor in the offence of rape. concern regarding the indignities of women dearest to her, the court cannot cling to a
According to the Supreme Court of India, in different forms, the ultimate being rape.fossil formula and insist on corroborative
insertion of finger into the vagina of a girl It has been observed that the prevailing testimony, even if, taken as a whole, the case
of the age of seven years and half causing Common Law standard of proof must take spoken to by the victim strikes a judicial
severe injury may be an offence of assault into account the fact that sexual aggressions mind as probable. Hardly a sensitised Judge
but not rape (State of Punjab vs Major Singh, against women are generally committed on who sees the conspectus of circumstances in
AIR 1967 SC63). Assault or use of force on the sly so that very rarely direct evidence its totality rejects the testimony of a rape
any woman with an intention to outrage or of a person other than the prosecutrix is victim unless there are very strong circum-
knowing it to be likely that the accused willavailable. In Chandra Prakash Kewalchand stances militating against its veracity [Rafiq
thereby outrage her modesty is punishable Jain, the Supreme Court held: vs State of UP 1980(4) SCC 262 at 2651.
with two years' imprisonment or fine or both Courts must also realise the fact that ordinarily Apparently, it seems that the testimony of
under Section 354 of IPC. In Ravindra Dinkar a woman, more so a young girl, will not stakea rape victim is acceptable because no woman
vs State of Maharashtra, a young girl was her reputation by levelling a false charge of honour would accuse another of rape in
sexually assaulted by the accused by forcible concerning her chastity. the Indian context but lateron the stereotyping
penetration of his finger leading to rupture Generally, cases of rape involving bad of honourable woman has been done away
of girl's hymen and bleeding. The Bombay reputation and social ostracisation, if at all with and it has been observed that even a
High Court held that forcible penetration of brought to the court, are done so with greatest woman of easy virtue is entitled to privacy
finger does not amount to rape nor does it reluctance. Therefore if a girl does come and no one can invade her (State of Haryana
amount even to assault. In a recent case a forward and alleges that she has been raped vs Premchand and Others, AIR I 990SC 538).
five-year-old girl was raped by a youth of her evidence should carry more weight than The requirement of recent complaint by
around 18 years of age. The girl was made the evidence of an ordinary witness. A womanthe victim generally referred to as the 'hue
to lie on her stomach and was sexually or a girl in India will rarely make false and cry' doctrine in the criminal justice
assaulted from the back. The girl suffered allegations on fabricated grounds. The systems, reflects the prevailing moral double
severe injuries. At the police station the five- statement is generally true in the context of standard which lent credibility to the sus-
year-old victim stated that fingerwas inserted. the urban as also rural society. It is also by picion that to avoid stigma and allegations
Ironically, the police expected from the girl and large true in the context of sophisticated, of consensual extra-marital sex the woman
to have known the difference between penis not so sophisticated and unsophisticated would rather cry rape. Recent complaint has
and finger even when she was assaulted from society [Bhagwada Bhoginbhai v State of been emphasised on the basis that no time
the back. The offence was registered as Gujarat 1983 CrLJ 1096 at 1099]. The court should be given to fabricate the incident of
indecent assault only under Section 354 of further observed that requirement of rape. So any delay in filing the complaint
the Indian Penal Code having a nominal corroborative evidence and cross-examina- invalidates or dilutes the charge [Polla K

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1961]. Courts increasingly seem to be was raped by a police officer in uniform. The seems to be uncertain regarding application
informed of the social milieu in which women
Supreme Court took into account the of the doctrine of hue and cry. For example,
in India are hesitant to make complaint of psychology of an Indian woman belonging in a gangrape of a tribal girl the rapists were
sexual assault immediately but the judicial to the traditional orthodox society, moreover acquitted because the prosecutrix could not
mind is not still unequivocal regarding the when the semi-literate prosecutrix comes explain the delay of about seven days in
issue of recent complaint. In Suman Rani from an orthodox Muslim family. The bench making the report (Satrugar vs State of
(State of Haryana V Premchand and Others), deciding the casc included a female judge. Madhya Pradesh 1993 CrLJ 120 at 121).
the Supreme Court, in appeal, reduced the It was observed: Chronologically, the judicial opinion on
statutory minimum punishment from 10 years The Court must not be oblivious of the the issue of past sexual history of the
imprisonment to five years in view of the emotional turmoil and the psychological prosecutrix as mitigating or extenuating
conduct of the victim. In reviewing the judg- injury that a prosecutrix suffers on being circumstances in the sentencing policy is
ment, after massive feminist criticism, the molested or raped. She suffers a tremendous quite uncertain. In 1990, the Supreme Court
court explained that 'conduct' was used in the sense of shame and the fear of being shunned
of India, in Suman Rani case reduced the
by the society and her near relatives, including
lexigraphical sense to show how the victim minimum prescribed punishment of 10 years
her husband. Instead of treating her with
Suman Rani had behaved orconducted herself under Section 376(2) of the Indian Penal
compassion and understanding as one who
in not telling anyone for about five days Code to five years referring to the conduct
is an injured victim of crime, she is, more
about the sexual assault perpetrated on her.
often than not, treated as a sinner and shunned. of the prosecutrix. This led to countrywide
In Harpal Singh vs State of Himachal It must, therefore, be realised that a woman feminist protests. In a review petition the
Pradesh (AIR 1981 SC 361), one Saroj who is subjected to sex-violence would court defended itself and said that it is second
Kumari, below 16 years of age, was raped always be slow and hesitant about disclosing to none in upholding the decency and dignity
by the accused on August 20, 1972 but the her plight. of womanhood and it had not expressed any
complaint was made on August 31, 1972, view in the judgment that character, repu-
If the prosecutrix, particularly teenagers,
i e, after about 10 days. Regarding the delay are from a rural background, the victim and tation and status of a raped victim is a relevant
in filing the complaint the girl stated that as her relations will think twice before giving factor for consideration by the court while
honour of the family was involved, its a complaint to the police and this, naturally, awarding the sentence to a rapist. But in
members had to decide whether to take the results in delay. This is especially so in evaluating the "peculiar facts and circum-
matter to court or not. The Supreme Court villages because it involves the social prestige stances of the case" coupled with conduct
upheld the conviction considering the and reputation of the victim and the whole the court obviously considered the fact that
explanation to be reasonable. family. In spite of sensitive observations Suman Rani was a woman of questionable
In State of Maharashtra v Chandraprakash made in perspective, in some cases decided character and easy virtue with lewd and
Kewalchand Jain, a Muslim girl in her teens by the Supreme Court, the judicial mind still lascivious behaviour.

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548 Economic and Political Weekly March 15, 1997

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 In another case (State of Maharashtra vs In contrast to the above a new trend is changes in the statutes of Canada. It has
Madunkor Narayan Mandikar, AIR 1991 visible according to which sexual offences attempted gender-neutrality by redefining
SC 207), the Supreme Court observed that deal with decency and morality in public life rape as sexual assault with a symbolic
even a woman of easy virtue is entitled and
to touch the honour of womanhood, the message that rape is a crime of violence and
privacy and no one can invade her privacy offenders are to be dealt with strictly, moredomination rather than lust or passion. The
as and when one likes. So her privacy is not so because in Indian society respect for the issue of consent has been considerably
open to any and every person as and when dignity of woman is on the decline and rapes resolved by emphasising "he voluntary
he wishes. She is entitled to protect her and other sexual aggressions are on the agreement of the complainant to engage in
person if there is an attempt to violate it increase (Chidda Ram vs State 1992 CrLJ the sexual activity in question". Other
against her wish. She is equally entitled to 4073 at 4074). Punishment should be a important progressive gains are in terms of
the protection of law. Past sexual history deterrent and should be considered in the removal of spousal immunity; alrogation of
seems to be emphasised on a concocted basis socio-cultural context of the victim. For the rule of recent complaint; dilution of
that matured girls and women experienced example, in Lakhminarayana vs State, a requirement of corroborative evidence; new
in sexual behaviour level the accusation of young man raped a 10-year-old girl while legal parameters and removal of distinction
rape on account of the instinct of self- she was tending the crops. The high court between penile and nonpenile rape.
preservation. Even an aboriginal prose- took into account the agrarian context of In India, a massive feminist campaign
cutrix being extremely simple and non- Indian women and observed on the issue of including public protests and wide media
manipulative, could not be believed when sentence: publicity led to reforms in rape law in the
she is experienced and accustomed to sexual No sympathy can be shown to an accused year 1983. The principal gain of the campaign
intercourse. This approach has created a of this type. It should be remembered that was that rape, which was hitherto a taboo
in the rural areas solitary women would be
myth that rape can be committed only subject, emerged as a problematic - the
doing the normal agricultural chores in the
against virgin girls and women inexperien- personal became political. Though the major
fields. If this type of accused are not dealt
ced in sex.
with properly there is no safety or security demands regarding consent and past sexual
The judicial zig-zag discussed above is for the single woman who would be doing history were not met in the 1983 amendments,
also due to Section 155(4) of the Indian work in the fields. there was some measure of success parti-
Evidence Act which says that when a man Courts have shown concern about the rising cularly in terms of criminalisation of custodial
is prosecuted for an offence of rape or an crime rates in recent years - particularly rape with the apparent consent of a woman
attempt to rape, it may be shown that the violent crimes against women. Courts are in and provisions for minimum sentence in
prosecutrix was of generally immoral favour of severe punishment to restore the cases of custodial rape, gangrapes, rape of
character. This provision is not confined to weakened criminal justice system and for pregnant women and rape of girls under 12
past sexual relations only with the accused general deterrence. A significant dimensionyears of age. Courts, in India have tried to
but also covers sexual immorality with others. of judicial determination of punishment has make a dent in the patriarchal hold. In femi-
The Law Commission of India recommended beet. that apart from protecting the rightsnist
of perspective 'contextualisation' and pers-
that this provision should be confined only the criminal, the courts have emphasised the pectivity in judicial decisions is a significant
to the previous sexual relations with the rights of the victim of crime and society at advance. Positive judicial trends are also
accused where consent is in issue. But this large.8 Thus, judicial decisions on sexual evident regarding the issues of consent, cor-
recommendation did not find place in the roborativeevidence, 'hueandcry' orrecent com-
assault and the approach to punishment show
1983 law reform. plaint, past sexual history and punishment.
that courts, in India, are informed of the
Crimes against women are on the increase gender issues and have taken therapeutic and Our major assumption was regarding the
everywhere. Statistics reveal that in India, deterrent stands in view of the specific hold of patriarchy on Indian society, and
one woman is being raped every 54 minutes. individualised circumstances of the case. when compared with the Canadian reference
In this context feminists are arguing for stern Criminal law may perform educative and model, we find that the fabric of patriarchy
punishment to sex violators. On the other symbolic functions but criminal sanctions have become weaker in Canadian society
hand, liberal criminology backed by have a limited and restrictive role in whereas in India the patriarchal regime still
behavioural sciences gives priority to transforming society. Demand for increased exercises its hold through social and cultural
individualisation of punishment with an punishments may, perhaps, be attributed to institutions, values and practices. The
objective to reforming criminals under the a weak feminist movement [Agnes 1992] at difference in legal approach to gender issues
therapeutic treatment framework. These the moment and also to lack of its theoretical between a developing society (India) and a
trends are discernible in judicial decisions
firmness in addressing structural issues developed society (Canada) can be traced to
also. Justice V R Krishna Iyer of the Supreme
relating to patriarchy and gender- difference in the level of development.
Court has argued against stern punishment discrimination. It is essential to concentrate Existing institutions in the patriarchal-
particularly long incarceration for often that more on the ameliorative and empowering hierarchal Indian society still maintain the
remedy aggravates the malady due to struggle to demolish oppressive patriarchal male superordination which prevails all
criminogenic influences prevailing in Indian structures and institutions ratherthan clinging through socio-cultural milieu, whereas the
prisons (Phul Singh vs State of Haryana AIR to the idea of increased repressive powers institutions in Canada have provided much
1980 SC 249 at 249-250). of the state. social space for emancipation of women.
Courts have taken a lenient view in cases
of young offenders; in cases of absence of
CONCLUSION Notes
utmost physical resistance and protest of In this article, wederived thegenderissues [This article is an lndo-Canadian comparative
prosecutrix; in cases of absence of 'hue and from various approaches to legal feminism. study on sexual assault based on the study of the
cry'; in cases of questionable character, easy Our findings suggest that feminist subject at the Faculty of Law, U B C, Canada as
virtue, lewd and lascivious behaviour of the a visiting fellow sponsored by the Shastri Indo-
consciousness is pervasive all through the
Canadian Institute under the supervision of Susan
victim. Surprisingly, courts have reduced
developed (Canada) and developing (India)
B Boyd. I am thankful to Christine Boyle and
sentences even in cases of premeditated societies. The Canadian reference model, for Susan Boyd for their valuable remarks during
violent rape followed by murder withoutcomparison,
any which has been operationally discussions and their comments on the earlierdraft
cogent penological explanations.7 used here shows that there are positive of this paper.]

Economic and Political Weekly March 15, 1997 549

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I This is mainly derived from H C Srivastava, MacNamarra, Donal, E J and Edward Sagarin Canadian Journal of Women anid the Law,
'Ideology and Practice of Indian Patriarchy', (1977): Sex Crime and the Law, The Free Vol 1, No 1, pp 108-18.
Commemoration Voluine, University of Agra, Press, London, pp 36-37. Smart, Carole (1994): 'Law, Feminism and
India, 1995 (to be published). Miles, Angela R (1985): 'Feminism Equality and Sexuality: From Essence to Ethics', Cancadian
2 Patriarchy, unlike its earlier usage as father Liberation', C(anadian Journcal (of Women and Journal of Law and Society, Vol 9, No 1
right, is now understood more as a distinct the Law, Vol 1, No 1, pp 42-68. (Spring), p 15.
system of control men have over women's Razack, Sherene (1991): Canadian Feminism and Smith, Lynn (1989): 'What is Feminist Legal
labour, fertility, sexuality and mobility in the the Law, Second Story Press; Sandel J Michael, Research'? in Winnie Tomm (ed), The Efjects
family, workplace and society in general. Liberalismandthe Limits ofJustice, Cambridge of Feminist Approaches on Research
Patriarchy as a system operates both at the University Press. Methodologies, Wilfred University Press,
ideological and material levels' [Gandhi and Shrofel, Salian M (1985): 'Equality, Rights and Waterloom.
Shah 1991]. The Issues at Stake, Kali for Law Reform in Saskatchewan: An Assessment Temkin( 1982): 'Towards aModern Law of Rape',
Women, New Delhi, 1991, 89. of the Character Compliance Process', 45, Modern Law Review.
3 "This symbolism also implies that women have
become 'external nature' for men. They are the
earth, the field, the furrow (sita) upon which
men sow their seeds (semen)", Maria Mies,
Veronika Bennholdt-Thomsen and Claudia Von HAVE YOU READ THESE BOOKS?
Werlhof, Women: The Last Colo(ny, Kali for
Women, Delhi, 1988, 77. See also, Miskait-AI-
Masavi, Part I, p 662 for position of women CHARLES BETTELHEIM
in Islam.
4 Under Section 375, Indian Penal Code, a man
is said to commit 'rape' who has a sexual CLASS STRUGGLES IN THE USSR
intercourse with a woman with her consent, THIRD PERIOD:1930 - 1941
when consent has been obtained by putting her
or any person in whom she is interested in fear PART I: THE DOMINATED
of death, or of hurt. ISBN 81 - 85427-47-X 1994 328 PAGES HARDBACK RS.190.00
5 See, 84th Report of the Law Commission of
India: 2.9 "Consent should be substituted by
'free and voluntary consent' so that it would CLASS STRUGGLES IN THE USSR
not be open to the court to draw an inference
of consent on the part of the woman from her
THIRD PERIOD: 1930 - 1941
silence due to ti-midity or meeknesss or that the PART II: THE DOMINATORS
woman kept silent and did not shout or protest
or cry for help".
ISBN: 81-85427-77-1 1996 357 PAGES HARDBACK RS.190.00
6 See 84th Report o?f the Law Commmission of
India, "In Christian perspective the purpose of B.R. BAPUJI
sexual intercourse is procreation and as the
conception of new life and motherhood is so UNIVERSffY OF HYDERABAD
important, the law should show reverence in
condemrni ng penile rape", Friel, "Knights of the
Southern Cross" in Christine Cameron, A ESSAYS IN THE SOCIOLOGY OF LANGUAGE
Feminist Critique of the Distinction between ISBN 81-85427-70-4 95 PAGES 1994 PAPERBACK RS. 60.00
Penile Rape and Rape with an Object", 1994,
Auckland University Law Review, 647 at 652.
7 See Raju v State of Kamataka, AIR 1994 SC 'SOCIOLOGICAL' THOUGHT IN MARX'S WRITINGS
222; State of Haryana v Premchand, AIR 1990
A SUMMARY OF HIS FORMULATIONS
SC 538; Mukhera Belakota Reddy v State of
AP, 1992 CrLJ 2236. ISBN 81-85427-72-0 110 PAGES 1995 PAPERBACK RS. 70.00
8 Dhananjoy Chatterjee v State of West Bengal,
(1994) 3 SCC where murder preceded by rape
of a seven-year old girl was considered to be PERSPECTIVES IN SOCLIL STRATIFICATION
rarest of rare case where death penalty should The problem of classes
be awarded.
ISBN 81-85427-44-5 141 PAGES 1993 HARDBACK RS.140.00
References
Agnes,Flavia( 1992): 'ProtectingWomenAgainst ANATOMY OF MODERN SOCIETY
Violence', Economic and Political Weekly,
April 25. EXCERPTS FROM MARX & ENGELS
Altekar, A S (1991): The Position of Women in ISBN 81-85427-46-1 149 PAGES 1993 HARDBACK RS.145.00
Hindu Civilisation, Moti Lal Banarasidas,
Delhi, 162-65.
Baxi, Upendra (1987): 'Towards the Liberation SOCIETY, STATE AND EDUCATION
of Women's Studies', ICSSR Newsletter,
Volume XV111(3), pp 6-12. Essays in the political sociology of Language Education
Boyle, Christine (1994): 'Recent Developments ISBN: 81-85427-534 83 PAGES 1994 RS. 55.00
in the Canadian Law of Sexual Assault' in
Saras Jagwanth, Pamela-Jane Schwikard and
Brenda Grant (eds), Women and the Law. CONCEPTION OF SOCIAL CLASS IN MARX
Boyle, Christine L M, Marie-Andree Bertrand,
Towards a Reconstruction
Celine Lacerte-Lamontagne and Rebecca
Shamai( 1985): 'AFeminist Review ofCriminal ISBN : 81-852745-3 206 pages 1993 HARDBACK RS.165.00
Law', Ministerof Supply and Service, Ottawa,
Part 11 in Elzabeth A Sheehy and Susan B
Boyd, C(anadian FemintistPerspective on Law. COPIES CAN BE HAD FROM
Brownmiller, S (1975): Again.st our Will: Men, T.R. PUBLICATIONS PVT.LTD., ALSO AT
Women and Rape.
Jayawardena Kumnari, 'Women, Social Reform PMG COMPLEX I ND FLOOR, E-280, FIRST FLOOR
and Nationalism in India', Feminism atnd 57 SOUTH USMAN ROAD, GREATER KAILASH PART-I
Nationialism in the Third World, Kali for
Women, Delhi at 73.
T.NAGAR, CHENNAI: 600 017 NEW DELHI: 110 048
Kosambi, Meera ( 1991): 'Age of Consent Bill, PHONE NO; 4340765 FAX 4348837 PHONE: 011 6451927
1891', Econonmic and Posliticall Weekly, August,
Mumbai. E-MAIL: trgeetha *giasmd01.vsnl.netin

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