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██████ senior tax partner ██████ ██████ becomes ██████ standing counsel, to follow litigation passion

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Listen yaar: What’s the deal with the Delhi high court menopause rape judgment anyway?

LI Listen yaar
LI Listen yaar
Listen yaar, the Delhi high court said that women who’ve entered menopause can’t be raped, right?

No, though an early-morning Twitter storm outraged for a little while yesterday after DNA headlined a story with: “Forceful sex on menopausal woman not rape, says Delhi High Court”. That headline has now been changed to a new headline ‘Delhi High Court judgement on rape and murder of 65-year-old sparks off debate’.

‘Sparks off debate’ that DNA’s own wrong headline created? As always, stupid mainstream media trying to sensationalise.

Maybe the story did have a point, which was lost in the headline…

Yeah, what was that then? I think the judgment is correct.

Well, it is clear is that the court let off a man convicted by a lower court of the rape. He had, perhaps accidentally, caused the death of a 65+-year-old maid whom he had sex with, because there wasn’t very much evidence before the lower court: the maid was dead and therefore gave no witness statement, and there was little evidence of rape other than the signs of ‘forceful’, e.g., rough, sexual intercourse, alcohol consumed, and the circumstances of the case.

So he didn’t rape her?

Perhaps – it certainly seems as though the prosecution didn’t do a very good job of proving his guilt beyond reasonable doubt in the lower court, as is needed in criminal law.

So what was the deal with that whole menopause thing?

In the final paragraph before acquitting him, the Delhi high court started listing some reasons, and one of those appeared to be that the maid “was aged around 65-70 years, thus beyond the age of menopause. […] even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased”.

Huh? What does menopause have to do with rape?

No one really knows, but on Twitter and in other comments, people have speculated that perhaps the judges meant menopause to imply “vaginal atrophy”, which is an inflammation of the vagina due to the shrinking of tissues, entailing decreased lubrication. This can be caused by decreased oestrogen levels that often accompany menopause.

The important part of the judgment:
"As regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause. We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased. From the MLC of Achey Lal [the accused] and the post-mortem of the deceased it is evident that both Achey Lal and deceased had consumed alcohol. The forceful penetration is evident from the injuries on the vaginal orifices. However, besides the injuries on the vagina there is no other injury mark on the body of the deceased or on the appellant to show that there was any protest by the deceased. Hence we are of the opinion that it has not been proved beyond reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent.
"Consequently the appellant is also acquitted of the charges under Section 376 IPC."

Aha, so the judges were just using menopause-related symptoms to explain why there were internal injuries caused by abrasive sex?

Maybe, but the trouble is, no one really knows, since the judges just threw the word menopause in there out of nowhere. Also from the judgment alone, it’s impossible to say if they asked a doctor or medical professional for their opinion, or if their lordships just believed the defending counsel’s account of the current state of medical science.

Okay, so maybe they could have explained that a bit better, but everything else in the judgment looks ok, right?

Actually the entire last paragraph of the judgment, which starts with menopause, is controversial.

What now?

Other than menopause, the judges say that they “find force in the contention” of the accused’s lawyers that while sex was “forceful”, it was not “forcible” and without consent – i.e., the judges found that he may have had rough sex with her, but he did not physically or otherwise force her to have sex, and that there was no lack of consent from her to have sex.

Then, they give two examples in reaching their conclusion:

it is evident that both Achey Lal and deceased had consumed alcohol. The forceful penetration is evident from the injuries on the vaginal orifices. However, besides the injuries on the vagina there is no other injury mark on the body of the deceased or on the appellant to show that there was any protest by the deceased. Hence we are of the opinion that it has not been proved beyond reasonable doubt that the appellant committed sexual intercourse with the deceased contrary to her wishes or her consent.

Why are they mentioning the alcohol?

Not sure what they are trying to imply here, since whether she had drunk alcohol or not should be irrelevant to the question of whether something was rape.

But at least there was no external injury on her, so I guess that’s good evidence that she must have consented?

That seems to be what the judges are saying but unfortunately that’s not the law anymore.

Oh yes, that commission report thing after the Delhi gang rape, made some amendments to rape laws, right?

Yes, following the suggestions by the Verma committee, one of the changes that was made to section 375 of the IPC governing rape states:

a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

What could the judges have done better?

They could have perhaps acquitted the accused for reasonable doubt by knocking down prosecution's untenable evidence, instead of trampling over rape law with cliched defence counsel arguments that risk setting a bad precedent…

Well, what’s done is done. So will others accused of raping menopausal women now get let off?

Defence counsel in future will probably try to argue that this judgment is precedent to let off rapists where there is:

  1. menopause,
  2. alcohol, or
  3. lack of external injury.

That’s pretty bad judgment writing, if that’s not what the judges intended.

Will that argument work?

It could convince some less discerning lower courts as a binding, albeit very vague, precedent from the Delhi high court, which they usually trust.

On the bright side, if the victim is alive and her testimony is credible, together with the amended section 375, any ‘menopause’ or ‘injury’ arguments would most likely fail.

Hmm, maybe judges should be a bit more careful and sensitive in what they say in rape cases?

Sure, that’d be nice.

And maybe we can all be a bit more careful and sensitive about what we say too?

Read full judgement

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