The Criminal Justice System's Failure To Prevent Violence Against Women
Violence against women has reached an all time high in fast few decades and the most common and heinous out of these crimes is rape. Rape not just denies a woman's sexual autonomy and threatens her physical safety but also at the same time, weakens the security and morality of the society as a whole. An estimated fifteen to forty percent of all women are victims of attempted or completed rapes at some point in their lifetimes and yet most of these rapists are never criminally punished. [footnoteRef: 2] The criminal justice system's failure to punish such rapists shows serious compromise with women's right to decide "who may touch their bodies, when, and under what circumstances".
Although extremely aggressive sexual behaviour is frowned upon but surprisingly our male-dominated society usually accepts a certain amount of submission, coercion, violence or aggression against women as not just normal but even desirable part of sexual encounters. Similarly, derived out of patriarchal beliefs the rape laws are also based on a paradigm of violent stranger rape which clearly fails to cover under its ambit less violent rapes or rapes in with some degree of a consensual sexual encounter. This research paper will argue how the most substantive element of rape is consent and still the legal community across the globe has yet not been able to develop a uniform standard for assessing effective non-consent in rape and the new consent standard suggested here when applied in a gender neutral way would protect men's and women’s sexual autonomy equally. Confusion in the interpretation and working definition of rape laws suggests that the issue of consent reflects huge scope of reform in the legal treatment of this matter and ensures that all instances of non traditional rape are covered under rape laws thereby implying that “Rape is Rape”, may it be date rape, intrafamiliar rape, acquaintance rape, stranger rape or spousal rape.
Rape as described in Indian Penal Code is a crime under section 375 and in simplest terms could be explained as sexual intercourse with some person with force and without consent. Hence every case for rape comprises of three basic elements: sexual activity between the accused and the victim, use or threat or force by the accused and non-consent of the victim. . While the sexual element of the crime is met by even slight penetration of the female sex organ, the requirement of non-consent seeks to ensure that the accused has infact denied and compromised victim’s sexual autonomy against her will. The legal system’s failure to ensure criminalization of rape owing to low rate of convictions along with of socio-financial burden and potential embarrassment involved in both investigation and trial has resulted in a large proportion of this crime not being reported at all. The Supreme Court in the case Bodhisattwa v. Shubhre held that: “ The woman continues to argue that in rape cases it is the victimized women rather than the rapist who is put on trial. A large number of women still fail to report rape cases to the police because of fear, embarrassment and insensitive treatment given by the doctors and law enforcement machinery”. The two most commonly asserted defenses in cases of nontraditional rape are consent and reasonable belief in consent (also called mistake of fact as to consent).
As soon as the consent defence is raised by the accused, the burden rests upon the victim to prove non-consent and requires proof beyond a reasonable doubt of sexual activity, force, and non-consent. It is usually presumed that majority of sexual interaction is consensual and combination of this presumption with judicial interpretation of the consent element is problematic and is one of the major causes of the criminal justice system's inability to protect women from rape. "naturally" sexually aggressive male should take a woman’s “no” as merely a gesture of enticing or exciting him and hides her actual sexual desires. Judges have historically held that the burden of proving non-consent is not satisfied by a showing of a lack of affirmative consent; instead, affirmative non-consent must be proven.
Although there are other crimes like theft, assault, battery etc. for which non-consent is a requirement or consent is a valid defence but only in rape, proof of affirmative non-consent and not merely lack of consent is necessary. Thus, "the law presumes that one will not give away what is his to a robber, but makes no similar presumption as to the conduct of women and rapists. " The law demands "utmost resistance" from the victim in order to be sure she submitted rather than consented. A woman’s choice afflicted from a “yes” or “no” is not taken as a parameter for assessing her consent rather absence of some vigorous or forceful resistance by the woman is considered sufficient proof of her consent. In the Delhi High Court judgment of Mahmood Farooqui v. State of NCT of Delhi it was held that a victim’s vocal resistance and verbally expressed feeble ‘no’ can, in some cases deemed to be a “yes” and imply her consent. IPC prescribes an expressive and not subjective standard for sexual consent in which explanation 2 of section 375 makes it clear that consent should be determined by victim’s expression of consent and not the accused’s perception. The theory of consent in practise requires victims of rape, unlike victims of any other crime, to demonstrate their 'wishes' i. e. their non-consent through physical resistance.
As a result, victim resistance is maintained as a "ghost element of rape" and remains to be an unacknowledged parameter to evaluate force and consent.
A victim may submit to sexual act fearing and in order to avoid possible violence or bodily injury and thus, her mere submission should not be deemed as consent. Judgements like Mahmood Farooqui are in stark contrast with 2013 Criminal Law (Amendment) Act which was passed after the infamous Delhi gang rape case also known as the nirbhaya case. This legislation directed courts to disregard victim’s sexual history and to presume absence of consent in rape cases, thus establishing an objective standard and dropping the subjective standard for determining consent. Judgements like these undo the very purpose of this legislation and emphasise on the urgency of significant change in the interpretations of Indian rape laws. Even if some evidence to prove non-consent are produced, they are aggressively discredited by the defence by humiliating inquiries and comments about the victim’s reputation, habits, behaviour, provocative clothing, acquaintances and sexual history. In addition to this evidence of the victim’s prior sexual activity with the defendant or with other men is used to impeach victim’s credibility and portray her “unchastity”. The belief that an unchaste woman is more likely than a chaste one to have consented to any particular sexual encounter has resulted in a way that once a woman has voluntarily engaged in intercourse, the law grants less protection to her right to refuse intercourse in the future.
Another case which brings out the hypocrisy of the judicial system is Tukaram and Anr v. State Of Maharashtra popularly also known as the Mathura rape case in which was held that there were no marks on victim’s body thereby suggesting that no attempt on her part to avoid the event hence there was no rape. Such instances of questioning victim’s character and assuming her “implied consent” based on lack of attempt to defend herself are evident proof of loopholes in interpretation and implementation of statues. What if a woman is inordinately afraid, too embarrassed to defend herself, or simply indisposed to resist in any situation and she may submit to non-consensual sex even in the absence of a display of force or threat of force by the defendant. The court also noted that Mathura was “habitual to sex” and might have enticed the policemen to have sex with her. Similarly in 1989 court jury in florida acquitted the defendant because the girl was wearing a lace miniskirt without underwear and the jury believed that she “asked for it” because of the way she was dressed. This incident shows how even the “traditional rape” i. e the violent stranger rape, the victim may be left remedy less just because of the way a woman’s chastity is perceived in the patriarchal and orthodox society. The defence of “reasonable belief in consent” is also debatable as the crux of this matter is not "Did the accused know that the victim was not consenting?" rather is "Should the accused know that the victim was not consenting?" Hence a person who has fails to perceive that other person is not consenting is to some extent malicious and culpable in itself.
The law should focus on the behaviour of the accused rather than on victim's response and must adopt the opposite position-that proof of a lack of consent is sufficient to prove non-consent. One method of accomplishing this change is statutory revision and defining consent in terms of affirmative signs of willingness to participate in sexual activity. Principles like protection of physical safety, freedom of choice, effective consent and individual autonomy must be recognised at all times. To correct these problems, two measures must be undertaken.
First, only affirmative consent should be taken as consent; a lack of consent therefore must be interpreted to indicate non-consent. Second, force should not be considered an indispensable element of rape but rather an aggravating factor, determining the degree of the crime perpetrated and/or the severity of the punishment imposed. If women's right to sexual autonomy is to be absolute-the goal of the affirmative verbal consent standard- these measures must be adopted universally [footnoteRef: 17] The problem of unjust inferences from a woman's actions or inaction could be resolved by a standard mandating that the only legally recognizable signals of consent are verbal statement.
