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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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