The issues surrounding rape in India are very deeply entrenched in the society. These deal with everything – right from child-rearing techniques to the role of women in the society. To enact a law which awards the death penalty to the rapists in the hope that somehow, these issues will simply dissolve into the thin air, is a recipe for disaster.
Unfortunately, whenever there is a high-profile rape case, thousands of people come out into the street demanding the death penalty for the rapists. Because it hardly costs anything to make laws (instead of implementing them), the government brought in the ‘required’ legislative changes awarding the death penalty to those who rape women (2013) and those who rape minor girls (2018). I think that this helps them wash their hands off the sorry state of women’s safety and security in this country.
Through this article, I will try to show that rape in India has deep socio-cultural and economic roots which cannot be uprooted by just awarding the death penalty to the guilty. I have commented on some of the issues related to rape below, but first, I would first like to state the five main reasons why awarding the death penalty for rape is a bad idea.
1. After the amendment was passed in April 2013, which made it possible to grant the death penalty for rape, the number of rape incidents have increased, not decreased. Simply put, it shows that using the death penalty card as a deterrence for rape in India is ineffective.
2. Awarding the death penalty for rapes increases the incentive for the people committing rape to kill the victim or to go to extraordinary lengths to eliminate any evidence that rape has taken place. The laws against rape are supposed to protect the victim, not put their lives in danger. But unfortunately, it seems that these laws are achieving exactly the opposite of what they are supposed to, in India.
3. The calls demanding the death penalty for the rape of a girl child or a woman often masks a poisonous aspect of patriarchy that we often overlook. There are many people in India who think that women who have been raped are effectively ‘dead’ because they have lost their honour. That is why we see that in the aftermath of every case of rape that grabs national attention, there is more focus on punishing the culprit rather than on the rehabilitation of the victim. Of course, the former is important for the sake of justice, but the latter is also equally important.
4. Let us consider the mental health angle. There are several cases of rape in India and around the world where they have been committed by people suffering from mental disorders. Can the provision of death penalty stop such incidents? In my opinion, the answer is a flat no. They may simply not comprehend what it is that they are doing and the consequences they’ll face for such an act.
5. Finally, let us come to the issue of wrongful imprisonment. In India, we often come across cases of fake encounter or cases where evidences have been planted. We are also no stranger to stories where the police and/or security personnel have used torture as a means to achieve their objectives. Indian investigative agencies also do not seem to possess cutting-edge technologies which help law enforcement agencies in the West to solve crimes. So, in cases where significant doubt exists, does the granting of a death penalty ensure that justice has actually been dispensed to the correct party?
More qualified people have spoken out on various issues regarding rape in India, but I would like to comment on a few of those issues, which I think, need to be urgently addressed to deal with this menace.
It is very rich of a country which hasn’t criminalised marital rape (yet) to call for the death penalty of rapists. This problem undoubtedly seems to have emerged from our lack of understanding of the concept of ‘consent’ with regards to sexual relationships. India is not the only country where discussing anything related to sex in public is a taboo; there are other countries too where such discussions are taboo. But I don’t think there’s any other country where the issue of ‘consent’ is so problematic and less understood as it is in India. This despite the fact that the concept of ‘consent’ was made central to the rape laws in India.
It is my opinion that criminalising marital rape will go a long way in making us Indians understand the concept of consent and the central role it plays in any sexual relationship. The concept that a ‘good wife’ should provide sexual services to her husband on demand was once prevalent across the world. But as societies evolved and women became equal to men, they realised and learned the need to exercise their freedom and liberty in all fields, including that of sexual relationships. Women started understanding that just because they might be married to someone, it automatically did not mean that she became their sex toy. Women were no longer subservient to men, and they started demanding an equal voice in deciding whether they wanted to indulge in sexual activities.
In other words, society learned to accept the fact that regardless of the relationship between a man and a woman, there needs to be a mutually-agreeable consensus before the parties decide to engage in sexual activities. This is the reason why Indian rape laws (like most other rape laws in the world) make it clear that engaging in a sexual interaction with a woman without her consent (or when she is incapable of giving it) is equivalent to rape. Why do you think that having sex with a child is considered rape? It is because a child is not deemed to be qualified enough to understand what consent is (or give it, either).
So, how can we make the issue of consent the central focus of the debate on rape that we are currently having in this country? I think it can be achieved by criminalising marital rape. Let me explain how.
Often, I find it really weird that the same people who say that terrorism has no ‘religion’ also claim that rape has a ‘culture’. Culturally and socially, we are taught to respect and honour women, but there are gaps in this teaching. A Dutch friend, with whom I had gone on a road trip across a part of India pointed out to me that we Indians have a problem of judging people based on various parameters. I think he was spot on with his assessment.
While we are taught to respect and honour women, somewhere along the line, we also develop these ‘corollary ideas’ like – women who are out of their homes late are somehow dishonourable, and women who wear less clothes are not to be respected. This is why we see so much victim-blaming after rape incidents. In the midst of all this hullabaloo, the question of consent disappears. How can someone (without consent) violate someone else’s sexual right, just because they do not have any respect or honour for the other person? The answer, I am afraid, is quite straightforward and simple – male entitlement. And there is no greater institution, which gives Indian men the sense of entitlement to demand sex, than marriage.
There are various social and cultural traditions which place men in a more superior position than the women in the Indian society. It is due to these customs that many men feel entitled to demand sexual favours from women – especially in situations where they feel the woman is ‘dishonourable’ or ‘disrespectful’. In fact, numerous social scientists agree that the rape of a women is a form of assertion of power by men. By interviewing rapists, many researchers have pointed out in their studies that a significant number of rapes do not happen due to lust. In these cases, it’s simply a form of physical assault a man engages in – to ‘show a woman her place’. There are also many other rape cases which are a result of men judging women to be particularly dishonourable and disrespectful. There are several problems with this situation, the most striking of which is – who gives men the right to judge whether women are honourable or not? We also need to ask why such rapists do not consider the issue of consent before assaulting a particular woman.
This is why I propose that marital rape be criminalised immediately, because many married men in India seem to be under the false impression that their power to demand sexual favours from their wives cannot be violated under any circumstances. So, by criminalising marital rape, we can not only inject the concept of consent into the mind of Indian couples but also bring the discussion about consent to the forefront. We may not realise it now, but in a hypothetical scenario, when it becomes impossible for a husband to even have sex with their wives without their permission, you can rest assured that there will be a massive upheaval and overhauling of the sexual relationships between men and women.
The concept of ‘respect’ becomes very pertinent when we consider an issue like child rape in India. As a society, one of the issues we have very comfortably overlooked over the years is how we treat our children.
By and large, Indian children are quite a mistreated lot. A heinous act like physical abuse is not only rampant, it is also widely ‘celebrated’. In many cases, from an early age, children are exposed to manipulation and emotional blackmail by parents and other elders. Furthermore, they are often forced into customs, traditions, activities in which they have absolutely no interest. Finally, to top all that, it is expected that Indian children respect their parents and other elders like gods, which is basically an excuse for unquestioned obedience. You might say that this is true for most parents across the world, but in the case of Indian parents, this goes to a completely different level. As a society, we are slowly learning to deal with this issue through humour, but nothing substantial has come out of it.
Now, let us consider the consequences of the unequivocal respect that children are expected to show to their elders – and the massive opportunity that exists for people to misuse that respect. A child who has no idea about sex, who is only taught to obey what their elders tell them, may well be horribly exposed to sexual abuse or rape. This probably explains why results from several researches shown that most instances of child sexual abuse are committed by family members or by the child’s acquaintances. But overall, Indian children are also severely mistreated besides being abused.
Do you really think such kinds of problems can be solved just by awarding the death penalty to the guilty? Such problems can only be solved when the various communities in India and we, as a society, introspect and improve their child-rearing techniques. We don’t just need to teach our children to respect elders, but we need to learn to accept that we have to respect our children as well. We need to clearly define the boundaries of respect and consent.
Some enlightened feminists have rightly pointed out that rape laws in India are already some of the most stringent in the world, but what is lacking is the implementation of these laws. The least time within which someone can expect a rape case to be settled in courts is two years. On top of that, the conviction rates are low. So, it frequently becomes a case of ‘justice delayed is justice denied’.
But, there are some very easy steps that both the government and the people can take to remedy this situation of poor implementation of laws. Firstly, the government needs to stop dragging their feet with regards to judicial appointments. Indian judges are greatly overworked, and this is not helped by the substantial number of vacancies in the judiciary – which the government seems to be determined to keep intact. So, it is logical to expect that Indian courts which take so long to issue judgements (according to the already-enacted laws) will take even longer to deal justice in cases of child rape as more and newer laws are being hurled by the government towards the judiciary.
Secondly, we need to be aware that in India, although sex education is not banned de jure, it is definitely banned de facto, because it is kept out of school curricula. This results in two very harmful things: firstly, women do not realise the sexual rights they have. Hence, they do not report instances when their sexual rights are violated. Yes, there may be some selfish and evil women who willfully and knowingly falsely report rape cases, but such instances form a miniscule number. But can you ‘blame’ a woman when she files a complaint for rape when she herself is unaware of the legal provisions and definitions of rape in the country? No.
In fact, this problem has become so acute that courts in many places in India are dealing with ‘rape cases’ which are not considered to be rapes anywhere else in the world or in India. I will try to deal with the two biggest types of ‘non-rape’ cases which are clogging the Indian judicial system. The first type is the ‘breach of trust’ cases. These cases typically follow this scenario: a man and a woman are in a relationship, and during that relationship, they engage in consensual sex. But this relationship does not lead to a marriage. So the aggrieved party goes to the court complaining that they had been raped, because they had a sexual relationship under false pretences.
Both the Supreme Court of India and various High Courts (like the Bombay High Court) have made it clear that ‘breach of trust’ cases should not be considered as rape. But despite this, numerous ‘breach of trust’ cases are filed as rape cases in courts across the country, which clogs the entire legal system. Ask yourself, would you want to see a death penalty being executed under such circumstances?
An even bigger problem than the ‘breach of trust’ cases are the ‘dissenting parents‘ cases. These are also becoming a headache for the courts. These are cases where an adult man and a woman are in a consenting relationship, but parents (usually on the girl’s side) disagree with their impending union (mainly due to caste, religion or economic reasons) and file a complaint of rape with the police forcing the separation of the couple. Many of these cases also see the parents and other relatives forcing the woman to give witness accounts of being raped. Now ask yourself again, would you want to see a death penalty being passed under these circumstances?
The reasons for the frivolous filing of rape cases – of both the ‘breach of trust’ and ‘dissenting parents’ types – lie in the conservative nature of Indian society. But what is being done to stop such cases from clogging the justice system? Precious little. All the commercials and governmental campaigns for the upliftment of women focus on how much potential for good an ‘unhindered woman’ has. As noble as those intentions might be, my question is: what good will it do if we, as a society, cannot guarantee the safety and security of women in their attempt to realise their potential?
So, in order to provide them that security, it is not enough that we just enact laws protecting women. We should also ensure that the laws function as they were intended to, and that the cases are resolved as soon as possible. Also, we need to learn how to talk about sex in public to educate women about their rights. But, we also need to educate men that their ‘rights’ are not absolute. They also should be made to realise that not all forms of behaviour are acceptable or justifiable. On the other hand, the sorry state of affairs in our country is such that we simply ask men not to rape as a solution to the menace. At the same time, we continue to impose some ridiculous, unscientific and unjustified behavioural standards on our women, while the issue of the lack of a worthwhile, relevant discourse on sex in our society remains unaddressed.
This is where the feminists and women’s rights activists come in. If the government is not doing it, they do should play a leading role in making this happen. The feminists and activists should help women and girls be aware of their sexual rights and freedom. They need to make women aware of the laws which exist to protect them if those freedoms are violated. They should also petition to the government to ensure that the laws are employed specifically to address cases of sexual violence, and to vindicate or justify other nefarious activities.
The economic reasons may very easy to understand, but they are difficult to control.
India’s economy has seen rapid growth in the past two decades which has democratised (to an extent) the club of wealthy individuals. No longer are the wealthy limited only to the landed gentry, leaders or politically-powerful people. Wealth brings its own problems of privilege and entitlement which is expressed in different ways – and also in relation to society’s interaction with women.
With the Indian economy rapidly becoming more and more capitalist, its features are also influencing social relations. In other words, the social standing of people is now increasingly being determined by how rich they are. Where everything has a price, sexual interactions can also be ‘purchased’ – but when sex is denied to someone who has lived a life of entitlement and privilege throughout, then rape is no longer a not-too-distant possibility.
Things are not helped by the fact that far fewer women are employed, in comparison to men. Furthermore, because of the pay gap, men, in most cases, have ‘financial supremacy’ over women – and there have been many instances where men have tried to assert such power by demanding sexual favours from vulnerable women.
Let us now deal with the issue that drove me to write this article in the first place – the gang-rape case at Kathua and the protests following it. The case is currently sub-judice; so, not a lot can be said about it, but the details from the police investigation which have been made public are extremely brutal and blood curdling.
However, as a student of history, I learned something new from this incident. The incident showed me that even if a particular case is not a ‘war rape’ case, it can turn out to be one, later.
‘War rapes’ happen during wars, when one party tries to assert their dominance over a community living in a particular location by trying to rape the women in that region. Significant examples of such crimes from the last 100 years are: the ‘rape of Nanking (or Nanjing) by Japanese soldiers, the rapes carried out by Soviet soldiers in the last days of World War II on German women, the Rwandan genocide and the Congolese wars of the last 60-70 years. Regarding the Congolese wars, it should perhaps be mentioned that they were uniquely brutal. The same territory would come under the control of different groups, who would attempt to establish their dominance by raping the same women in the region.
As mentioned earlier, the Kathua rape is sub-judice. So we cannot be certain whether it was a war rape or not. But certain incidents – like the girl’s parents being threatened, and her relatives being chased away when they tried to bury her in the village graveyard, the lawyer of the victim’s family receiving threats, the leaders of the majority community making the rape case into a ‘majority versus minority’ issue and demanding that the accused be released immediately and threatening violence against the state – effectively converted the Kathua rape case seemingly into a war rape case.
War rapes are not common in India, probably because it’s not all out at war – but that doesn’t mean they don’t exist. The caste angle also becomes relevant here – with a dominant group resorting to such deeds to establish their superiority over the other ‘lower’ groups.
These incidents are generally a result of the complete breakdown of law and order. They can only be addressed if the state can ensure the rule of law and enforce it in every part of the country. Also, there needs to be an introspection and investigation into what causes such inter-community rivalries that lead to rapes.
I do not want to delve into this topic a lot, as this article is about women’s safety. But I would only like to say that it will be advantageous if men are made real stakeholders in ensuring that sexual violence is eliminated from our society.
But instead, the complete opposite thing is happening ever since the widely-publicised notorious rape in Delhi (2012). The rape laws which were amended after this 2012 rape decriminalised all and any sexual violence against men – be it harassment, assault or rape. The same thing happened after the Kathua rape case became widely publicised in the media.
The amended laws now currently provide a greater punishment for sexually assaulting minor girls. Now, India is not a one-sided haven where sexual crimes are not committed against men and boys. Just like everywhere else, these crimes also exist in India and many of these crimes are being committed by men themselves. Decriminalising such crimes against the male gender deprives us of an exceptional opportunity to fight against sexual crimes in this country together.
Also, this type of societal and governmental reaction poses the threat of a ‘slippery slope’. For example, someone might propose that if cumulative punishment can be imposed on all men living in India, why can’t a collective punishment be imposed on some other social group or community in the country?
After reading through the points I have written, I hope I have managed to convince the readers that there is no single silver bullet to deal with the issue of rape in India. It is just too complicated to have a simple, single solution like the death penalty.
In my opinion, the only way to deal with the epidemic of rape in our country is to face the truth that rape needs a lot of introspection regarding where we are currently placed as a society. There also needs to be a significant overhauling of the ways in which we interact with women in our society.
Here are some steps that I would suggest for dealing with the rising number of rape cases in our country:
1. Fill up the vacancies for judges in courts, especially in criminal courts, as fast as possible. Cases of sexual violence also need to be resolved at the earliest in the courts.
2. Remove the death penalty in cases of rape. Everywhere in the world, judges are prone to declare a person ‘not guilty’ of a crime, especially if the punishment in question is a severe one. And the death penalty is the severest form of punishment!
Secondly, it takes a long time to legally execute a death penalty. So, even though child rapes are now being brought under the purview of the death penalty, the minimum time required for the case to be dealt with will inevitably increase.
3. Start imparting sex education in Indian schools immediately. This is crucial not only for leading a healthy mental and physical life, but also to ensure the security of Indian citizens.
4. Make it mandatory for all schools to teach children what constitutes violation of sexual rights.
5. Schools should also ensure that they appoint someone friendly and approachable – a go-to person for children who may have been abused. Also, it would be ideal if this person can coordinate with law-enforcement agencies.
6. Teach children to raise an alarm if they are wrongfully/sexually touched or assaulted by someone – perhaps by shouting ‘keywords’ like ‘rape’ or ‘pedophile’ in their mother tongue or the lingua franca of the locality.
7. Paedophilia is also prevalent among a section of the Indian population. Having sex with a minor is completely not acceptable for any society, but this problematic tiny demographic must be targeted before they manage to do any harm. The best way to prevent such individuals from committing sexual crimes is to create an environment where they feel free and safe to come out and speak about their mental problems with psychologists and counselors and undergo anti-addiction treatment. The creation of such centres will also allow the relatives of such people to admit them for availing treatment.
Mental health issues are already a taboo subject in our country – and so, such treatment must be kept under strict privacy laws. But additional arrangements should be made for the doctor to report to the proper authorities in cases where they feel that people, who have not been cured of paedophilia, have stopped attending regular sessions. This will ensure the proper monitoring of various cases. Several developed countries have similar arrangements which have greatly helped them prevent child rapes from even taking place.
8. Make the prisoners convicted of sexual crimes listen to recordings of victims of such crimes describing their trauma. This method has allegedly been quite successful as many convicted criminals have, in the past, felt physically sick while hearing the harrowing stories of rape and assault. Hence, it has worked as a great corrective measure against repeat offenders.
A version of this article was first published on the author’s blog.