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Rape: Not a crime scene?I don't particularly like to categorise myself as a feminist for I feel contemporary feminism overlooks multiple aspects relating to gender construction. But I do consider myself sensitive to women- related issues specifically and gender issues generally. In this article however, I propose the abolition of rape as an offence under law, which may at first glance seem in gaping and even disturbing contradiction to the alleviation of female suffering. In the past, I have encountered stringent opposition against this proposal and references to my gross lack of morality or empathy for even thinking up such an argument. But with some (albeit very faint) hope I attempt to justify here how the offence of rape is in fact, demeaning to gender equality and perpetuates victimisation by its very existence.

What exactly is punished under Section 375?
Section 375 of the Indian Penal Code, 1860 lays down the offence of rape. It is an offence which can be committed only by a man and broadly involves engaging in sexual intercourse with a woman without her will or her consent. In other words, rape is more or less a battery and/or hurt of a sexual nature committed on a woman by a man. But the physical violence is not the only bit which the offence of rape entails. It is the mental violence featured in rape which makes it such a "heinous crime" and a offence distinct from others featuring mere physical violence. In its 1995 judgment of Bodhisattwa Gautam v. Shubhra Chakraborty 1996 SCC (1) 490, the Supreme Court has expounded upon the core aspect of rape as following:

"Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she  rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women."

It is thus clear then that the punishment served for the offence under Section 375 is not merely for the physical interference with a human body, but more importantly, the sheer humiliation supposedly heaped upon a woman's mind when she is raped.


What is wrong for punishing for mental humiliation?
What's wrong is that when punishment is awarded to the "rapist" for heaping mental humiliation on a woman, it is assumed that the woman has in fact, suffered mental humiliation by being "raped." That it wasn't merely assault, battery or hurt committed on her sexual organs, but rather entailed the taking away of her izzat or honor.

Now it's a funny thing. When other crimes are committed against a person, one doesn't assume that the victim would be humiliated. No one assumes that a person would be humiliated upon being kidnapped or if there has been a theft in his house, or if there has even been an attempt to murder the said person. No one goes like, "Oh fuck, I was beaten up by some goondas hired by my landlord because I was late in paying the rent. Ab main duniya ko muh dikhane ke layak nahi raha! Boohoo!" I mean, that would just be stupid right? As the victim, you would indignant, angry and maybe file a FIR. You wouldn't hide in shame. Yet that's exactly what a woman who is raped does. (Sadly. But I don't justify that woman at all. There is no good reason in the universe why she should feel ashamed for being physically violated, even if it's her sexual organs which are involved. I mean it is more than likely to be an excruciating amount of pain alright, but humiliation? Seriously?)

But what's more, the law encourages her to feel shamed by awarding punishment to the offender for not just the physical violence, but her humiliation. No one awards punishment for humiliation caused to the victim in other offences, no. Because there is none! And even if someone does feel humiliated for say, being a victim of an abduction, he shouldn't. It is reasonably expected of him to feel so. Then why is it reasonably expected of a woman who has been "raped" to feel humiliated? And why does the law perpetuate such humiliation?

Btw, men are never humiliated...or so says the law
Oh and on a side note, law doesn't deem men would humiliated EVER if you play or even totally unhinge their playthings without their will or consent, if you know what I mean. :| Check out Section 320 of the Indian Penal Code which lays down "emasculation" to be an act under the offence of grievous hurt. It reminds me of a Supreme Court decision in a case called State of Karnataka v. Shivalingaiah AIR 1988 SC 115 where it was held that the act of squeezing the testicles of a person would constitute the offence of grievous hurt. Also, in Kalyani v. State of U.P., the accused, a woman was held guilty of the offence of grievous hurt among others by causing the death of her husband by squeezing his balls too hard.
All of them interesting cases no doubt, but the point being, all offences against the sexual organs of the human body. But they all fall under grievous hurt and not rape. The punishment is for unwarranted physical interference with the body. There is no humiliation. See what I mean?

No rape=social exclusion?

Now you may argue that dude, women do feel humiliated when they are raped because of all the social rigidities and stuff regarding the "right kind" of sexual behaviour. And law needs to address that. Law needs to punish for such humiliation, because hey if it doesn't, it would be excluding female sensitivities and be socially detached, which it cannot afford to be. To that I say, BARF!

Okay fine, I will consider this argument. It's has a point actually. So let us delve into a bit of jurisprudence and consider the nature of law after all. While the early utilitarians like Austin and Bentham deemed law as a pure science- to be set in ways so as to achieve the greatest happiness of the greatest number, Kelsen judged that law was a prescriptive science. The implications of these hi-fi sounding words are basically this. Austin and Bentham thought that law should be framed so that it reflects the sensibilities of the society- what the society deems to be good and evil. So if the law punishes for something which the majority in the society deem evil and rewards for something which they deem good, this was law acting in perfection. Kelsen however, came up and said oi, what shit is this! So you mean to say that if 20 people in a community of 25 deem it totally immoral of a girl to talk to a guy of a different gotra, and then consider it sound justice that both the guy and the girl should be killed, law should support them? Because it would result in the greatest happiness? Woah, not done dude! Law in fact, should prescribe what is good and what is bad. So law should prescribe that killing of this couple is not right, not just take the right and wrong according to what the majority of the people think! Had that been the way, we'd probably still be burning widows now.

Both the theories are of course, two extremes and tend to be rather simplistic. Because when Kelsen advocates the exclusion of social moralities from the law, apart from creating a disconnect between law and society, it also raises the question as to who should decide what's acceptable under law then? If not the majority then who? So step in Hart who synthesizes both the Austinian and Kelsenian theories to find a middle ground: that law should be both socially sensitive and also attempt to "reform" by introducing new and more humane ideals. No doubt there are multiple criticisms for Hartian theory also, but this basic premise is by and large accepted. Which means that the prescriptive aspect of law should come into play to alleviate the concept of humiliation due to rape. The aim of the law should be to remove this feeling of humiliation from sexually directed violence. Not perpetuate it by acknowledging such humiliation as legitimate enough for "its prepratators" to deserve punishment. The punishment for humiliation just justifies the feeling of humiliation in the victim, which shouldn't even be there in the first place! Isn't it a contradiction when on the one hand, social activists pronounce the humiliation felt by a woman when she is raped as a totally unwarranted imposition on her by the society, but at the same time demand that the punishment for rape be made more stringent because it is so "scarring" for a woman? But this agenda is nevertheless endlessly pursued.

Make men a victim of rape too? Puhleaase!
Another argument which I have heard is this: There is a point that women's humiliation is taken into account, but men's is not in the case of sexual offences, so that men can never be "raped" under the Indian law. It is argued that even men suffer mental humiliation in a way similar to women in such cases, but which is never acknowledged by the law and should be taken into account. Thus, we have this new wave of advocacy demanding for the representation of even men as victims of rape.

This counter-argument however, totally misses the point of my arguments, which is to demand for measures to abolish the shamefulness the victim apparently feels upon being raped. I am not here to demand equality for men and women by pushing even men to the sphere of victimisation. What I am really advocating by the abolition of rape as an offence is the abolition of victimisation. The abolition of humiliation. Why are we letting the law propagate such kind of negative attitudes? There is absolutely no good reason why. Yet we carry on so convinced by the authority of tradition, or of the majority and the hegemony of fear and shame that we let it carry on generation after generation and for centuries.


On a concluding point, I would like to clarify that the humiliation is if a rape victim is not inherent, but is made out by the process of socialisation. And neither is it a quality to cherish: the shame upon being raped. No one should feel ashamed because one was raped. And if one does feel so, we and our law should try and make him/her not feel so. Not sympathise with the humiliation and punish the offender for humiliation of the victim, thus implicitly forcing the victim to feel humiliated.

I totally condemn the physical violence, but I cannot reasonably acknowledge the presence of mental agony in a rape victim. And once this acknowledgment of humiliation of a rape victim is removed from law, the offence would no longer be rape. It would be reduced to just the physical aspect of interference with the human body, without one's consent or will- which of course should be condemned adequately. On that note, I strongly call for the abolition of rape as an offence. Now let the stone-pelting begin. :P
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Comments

  • Guest
    Occasional Passer-By Wednesday, 29 Feb 12

    Okay. Interesting..

  • scarecrow
    scarecrow Thursday, 1 Mar 12

    You guys get time to write all this? 1945 words including :) :l Nice stuff!

  • legalbird
    legalbird Friday, 2 Mar 12

    oh one inevitably finds time to do what one really likes. Thanks for reading and counting the 1945+ though. ;)

  • Guest
    Dolashree Mysoor Tuesday, 6 Mar 12

    You're looking to ruffle feathers, so here you go!

    A Case for not throwing away the baby with the bathwater:

    Well articulated, but I can't agree with your statement that rape (or for that matter any sexual crime) is not inherently linked to humiliation. Unfortunately we cannot do away with feudal social mores by doing away with the current law on rape. If you're suggesting that doing away with this provision will help in doing away with feudal mores, then consider the fact that we don't have basic legal literacy in this country, forget educating the masses, we don't even have a measure for it! Therefore doing away with the law on rape will not do away with the humiliation attached to rape.

    Second, even with the current protection under rape law which provided to women, reporting of rape in this country is absolutely dismal. For that matter, how many women feel comfortable walking up to a police station and reporting an incident of stalking. I agree that the current law on rape doesn't deter anybody from actually committing the crime, maybe adopting a different perspective would help. Gender sensitization perhaps?

    I agree with you on the count that there is no need to attach victimization to such a large extent that it gets converted to humiliation and ostracization. Dignity of an individual must be of utmost concern while dealing with these cases. However, when you look at sexual harassment cases, how would you disengage the feeling of humiliation in the victim's mind from the act itself? Yes you have gone into legal philosophy here, but have we considered the basic human psyche. Also, how do you address guilt in the victim- this, my dear friend, is a very common finding when you're attempting rehabilitation of a rape victim; women feel that it was their fault and that's why they got raped. We often find that mental disorders such as post-traumatic stress disorders, complexes, asocial behaviour, fear/hatred towards men, etc... are consequences of rape on a woman's mind. How do we tackle these?

    Third, how would you address the issue of pedophilia? Shall we throw caution to the wind in this case? How do you protect a child from sexual offences? What is the impact of a sexual offence on a child? There are two schools of philosophy (Disclaimer: these are not my thoughts, but this is what is suggested by background literature on the topic)- (i) children feel victimised hence go through many pyschological problems such as inferiority complexes, post-traumatic stress disorders, suicidal tendencies, etc.. (ii) sexuality is a natural phenomenon and a child does not necessarily have an impact on the child. This issue is still being debated. If you are stating keep morality and rape laws separate, can this case also be considered in the case of pedophilia?

    My deductions would be- yes, certainly there is scope for improvement in the existing law on rape as it does not address many issues. It is not enough to just do away with the law, but it is absolutely imperative to ensure that the law is crafted in a manner which paves the way for an attitude shift in society. The existing rape law does not harm anybody, but it does not serve its purpose either. I would conclude by saying that doing way with Section 375 would amount to throwing the baby away with the bath-water, what we need is an appropriate amendment.

  • Guest
    Critic. Tuesday, 6 Mar 12

    the authors analysis falls apart when it he/she proceeds on the assumption that humiliation attached is competely a construct of society.
    First of all, is law not supposed to operate within the social construct and reality ?
    secondly, thats like suggesting that there is no difference between a slap on the face and a brush at the balls. there are some parts of the body that are personal, relegated to a position whereby they are only shared with another person through intimacy. so if this feeling of privacy is a social construct, so then i can also argue that wearing clothes is one. because if getting slapped and groped is the same then why cover the whole body when we dont cover the face ?
    its good philosophical dribble. but see how absurd your arguments look when stretched to their breaking point.

  • Guest
    Dolashree Mysoor Tuesday, 6 Mar 12

    I think the author is correct inasmuch as humiliation on rape being a social construct, but I still stick my position that doing away with the law is a method of combatting this. I disagree with you (critic) that the law must operate within the realms of social construct and reality, this would be a very narrow perception of what the law should be. Besides, how far can one take this argument? If this is the case, should the law then accommodate what the Khaps are doing in the north? There is a certain significance attached to the rule of law, and in certain cases the law can (and in my opinion should) operate outside certain social constructs. Sati was a social construct, didn't the law abolish this? Was this not a situation where the law operated outside a social construct? Or should we have retained the practice of Sati because it was a social construct?

    Both gender and privacy are also social constructs, and as a society it would help if we could understand this. It is due to such socially constructed identities that society perceives certain vritues which should be attached to a woman. The concept of a 'fallen' or 'unchaste' woman, for example, are social constructs. And yes, wearing clothes is a social as well as a geographic construct; for early man never found the need to. Society changes, social constructs are also dynamic, but can justice be as dynamic as a social change? What is the scope of change for the law in any society? My opinion is that one must refrain from adopting an absolutist perspective on things.

    I agree with you that there is a difference between a slap on the face and a brush at the balls. I agree that privacy of an individual is very intrinsically linked with one's dignity; and the law should promote, propogate and protect the dignity of an individual. There are ways of ensuring this, but the law should also not be fettered in such a manner that it cannot adapt itself to social change. The concept of dignity of an individual has itself been subject to change. Dowry (again a social construct) for generations defined social status and dignity - in terms of a woman's ability to marry somebody. But has this not changed? Today we consider dowry as a social evil (and rightly so).

    The argument is absurd only inasmuch as the author suggests total abolition of rape laws. One cannot limit the law based on social constructs or 'reality' because both of them are subject to change. I would still say that there is scope for improvement in the law, and that is what we must strive for.

  • Guest
    Dolashree Mysoor Tuesday, 6 Mar 12

    Sorry, error in the first line- "doing away with the law is not a method of combatting this."

  • legalbird
    legalbird Wednesday, 7 Mar 12

    hey dolashree and critic, thanks for reading and your thoughtful comments.

    The basic argument in your comments has been that humiliation does emerge upon being raped, and law cannot overlook the fact that women do feel humiliated, and then fail to address it. My counter- argument to this as i have tried extrapolating in the post a bit runs like this...this feeling of humiliation among women is not a justified emotion. True, it might inhibit them a lot- not make them turn up and report cases etc. but really this is the woman's personal problem- that she is feeling humiliated for no good rhyme or reason- this is not a problem which her "rapist" has inflicted on her. If the woman's "psyche" does not follow reason- reason dictating here that she should NOT feel humiliated, why should the "rapist" bear the punishment for her humiliation? Though thanks to our internalisation of social morality, this proposal sounds shocking (as must have the abolition of Sati to practising communities in 1829, including the women who were Sati-ed), if one tries detaching oneself from those social constructs, it is merely a question of equity...it's the distinction between a damage and a wrong (analogy from tort law): the woman might feel she has suffered "damage" via humiliation, but should the law consider it as a wrong? That is the question I have raised, and answered in the negative.

    The same argument, I would say also goes in the case of child abuse- which is deemed more scarring only because of the social importance attached to the "purity" (read: virginity) of women and because of the assumption that sex is such a taboo, scarring experience. The second point which critic raises wrt the "privacy" of some parts of the body etc. is illustrative of this exact sexual morality which modernity has taught us to hold. As Foucault will tell us, the problematization of sex is a very modern phenomenon (i.e. did not exist as a cultural norm pre-17th century), and all this value and sanctity attached to the so called private parts is a social/cultural association and not some inherent/indestructible part of the human psyche.

    That being said, the point of education which Dolashree has raised is an excellent one. It is indeed important to educate people regarding how "rape" is really the assailant's fault, and no long-term change can be brought about, even in the law, without making people oriented to the values which law upholds. So even if law says no rape, and people deem it as scarring, I agree- that such law will not at all be sustainable. Education is a constant process whose importance cannot be overrated. But such effort at education must be coupled with law's denial of the feeling of humiliation in a "raped" woman. Because educating people saying- hey woman is not humiliated when she is raped, but at the same time, using law to punish the "rapist" for her "humiliation" just sends out the wrong message. Simply because action speak louder than words, such education of words in total contradiction with action, is completely meaningless and unhelpful. It's a system of hypocrisy which we then breed. How can we hope to bring change in the mindsets of people with mere words in classrooms and forums when all our laws support the exact opposite of what we teach? A beginning has to be made with action, not just words. To really erase the humiliation in rape, women need to be strengthened first, and that sure is not happening by mollycoddling them in punishment for humiliation for the assailant- that's just teaching them that their feeling of humiliation is justified! And then why should they not fear to report their cases?

    So my lovely friends, I maintain that this is not a case of throwing the baby out with the bath water that I am making. My arguments are not that simplistic. Let's say all I am trying to do avoid the bath altogether and give the baby a jacuzzi? Everyone stays happy that way. :)

  • Guest
    critic Thursday, 8 Mar 12

    i think what i said has been misunderstood.
    i am all for law being the tool for change, for being the jolt that shakes society out of 'enjoying its inertia' so to say. by social construct i didnt mean that it is justified or 'normal' for a victim of rape to unchaste or fallen.
    but there are social constructs at many levels, some which are basic like language and family, some which are complex like an individuals obedience to the state. I think that the notion of privacy is also very basic to an individual. as long as an 8 yr old child is taught not to 'scratch' himself, as long as an adolescent girl is told to wear a bra or as long as some parts of the body are treated at a higher level of privacy and being personal, till then rape will be different from assault. and rape would be humiliating even if nobody calls the woman 'unchaste'.
    there is nothing unjustified in feeling humiliated after rape, its an ultimate act of subordination because sex is placed as an interaction you have only with the most intimate people, in an atmosphere of love.
    to say that such a feeling should be removed would be to say that all of the body would be the same to everybody, and the act of penetration is no bigger a deal than a kick in the ass.
    and even if concede to all of your arguments...
    repealing rape would not stop this humiliation. cause there is only so much the law can do. the law cannot change how i feel about my body. and its really as simple as that.

  • Guest
    Dolashree Mysoor Thursday, 8 Mar 12

    If there are any women on this thread, Happy Women's Day!

    Well, Legalbird, I completely agree with you that the humiliation aspect of rape should be done away with, I have no issues here, because sex is a natural phenomenon and a biological need (for both men and women). To this effect you have adequately quoted Foucault on the problematization of sex. But, how you propose that the humiliation will be done away with because the law on rape has been abolished is something I fail to understand? A girl above 16 is legally (technically speaking) allowed to consent to sex, but doesn't the society still consider her virginity absolutely imperative. Isn't pre-marital sex still considered bad, despite the fact that there is no law banning it?

    Second, the analogy you have drawn between tort law and criminal law is wrongly placed. Although both of them are laws, this not a comparison of apples to apples. There is a difference between the perception of a crime and a wrong under tort law. The premise here is that a crime is considered as an offence against the State and not against an individual while a tort is a wrong committed against an individual. Besides, doesn't the law also provide a chance to sue for mental harassment in certain cases?

    Third, if you do away with the law on rape, how do you ensure the safety and security of a child against sexual predators? I think your view here is simplistic, and in the process of ensuring equity you are forgetting that we still live in a society which frowns upon sex education. I would like to cite the decision of the Karnataka Government a couple of years ago to do away with sex education in government schools. How would you teach children to tell the difference between a right touch and a wrong touch? If you are saying that even this emphasis is deterrant to equity because of its emphasis on one's private parts, should women take molestation (eg: groping a woman's sexual parts) lying down? As a woman I can tell you that I have to combat some form of groping everytime I step out onto the streets. It is one thing that I don't feel humiliated and I consider it right to lodge a complaint and blah blah blah... but the fact of the matter is if and when I walk into a police station twice in the same week to report an incident of stalking, I end up being questioned. I would take this as an indicator of how far behind our society actually is.

    Your views are progressive I agree, but maybe just a little too progressive for our society! We live in a country which still believes in selling daughters who have come of age, yes, there are communities amongst which this practice is still prevalent. And don't even get me started on the dowry business. With the khaps in the north and the Ram Sene like organisations in the south, ensuring a woman's safety has become an issue.

    Lastly, would you consider it the right of every man/woman to say no to sex? If yes, then how does one justify that a forced sexual assault does not result in some for of mental harassment? Rape does become a crime and cannot be equated to mere battery, because there is more to it than just physical pain. Apologies for having gone all over the place with this post :)

  • Guest
    Occasional-Passer-By Tuesday, 13 Mar 12

    Dolashree has indeed raised (whether intentionally or unintentionally) raised a very valid point.

    Consider this - bearing in mind that crimes under the IPC and other such criminal statutes viewed as offences against the State. The State would like society and its members to interact with one another dictated by various interpretations of the values of morality and good behaviour. Thus, the more shocking and vile an offence, the greater the punishment - while some may argue otherwise the punishment for a crime does quite often depend on such criteria - namely, whether the crime shocks the conscience of society as a whole and of course, the judge. Basically - punishment for a crime is dictated by society or the State's feeling of "how f**king dare he / she do something like that!?".

    Now, with this perspective, its not hard to follow why rape is an offence, mandating higher punishment than other forms / kinds of sexual assault. In my personal opinion, a punishment higher than that for rape should be prescribed for pedophilia. But certainly, rape does deserve to be treated as requiring a higher punishment than mere assualt or molestation offences. Even the ones against men.

  • ~AK~
    ~AK~ Wednesday, 13 Jun 12

    Awesome work, I Liked it !
    and
    I feel that MEN should also be included under the offence of Rape, Both men and women feel humiliated and suffer pain when raped
    What if a group of girls abduct you and squeeze your testicles, It's painful ofcourse
    Thanks

  • Guest
    swami_naveen Sunday, 17 Jun 12

    out of all the frivilous situations where lawyers claim that their client faced mental anguish due to this or that act on part of the accused .. you dont agree with the undeniable element of mental anguish in Rape .. interesting

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