The Verma Committee Follow-Up: First Thoughts

It will take a complete purging of the deeply patriarchal and misogynous society that we live in for this mad culture of rape to end. Changes to the law, stronger policing, stricter punishment, efficient prosecution, and such, will only go so far towards assuaging a malaise that has seemingly persisted since time immemorial. But how does one initiate a cultural transformation without engineering a change in law and policy?

Proposals to rid India’s penal laws of its colonial antiquity, by itself, as is the case with calls for greater policing, can seem insignificant, and even trivial, when considering a culture that is nourished by brazen chauvinism, but these mores are only enabled and strengthened by laws that are inherently bigoted. Where does, for instance, one begin to explain what “outraging the modesty of women” means? How is it that our laws fail to criminalize marital rape? What does the so-called “two-finger test,” which continues to be used as an evidence collection tool in rape cases, in spite of the Supreme Court’s specific dicta prohibiting the use of its results against a rape survivor, say about our criminal justice system? How does one explain the glaring variances in sentencing based on the victim’s prior sexual history?

All of these obtrusive fallacies in the law have only furthered a culture that actively encourages violence against women. There is an immediate need to shred anti-rape laws of their dogmatist wording and to view rape independent of ideas of “chastity” and “modesty,” which virtually equate the victim to the offender. Rape needs to be viewed for what it is: a sickening act of sexual violence on a woman. In its present form, Section 375 of the Indian Penal Code broadly defines rape as penetration—which has been interpreted by courts to mean the penetration of a woman’s vagina by a penis—without consent. Any act of sexual violence short of vaginal penetration—including oral and anal penetration—is therefore prosecuted either as an attempt to rape or under Section 354, which covers assaults intending to “outrage” a woman’s “modesty”—and is punishable with imprisonment for a term no longer than two years with or without a meek fine. Consequently, to insert a rod into a woman’s body, in the eyes of the law, amounts to nothing more than outraging her modesty, whatever that means. This may appear to some as a mere matter of semantics, but the legislature in retaining laws that are in keeping with archaic notions of “virtue” and “chastity,” is contributing to an acutely dangerous culture. Both of these provisions require immediate rewording. Rape must be defined with greater clarity to include not merely vaginal penetration, but also oral or anal penetration as well as penetration with foreign objects.[1] There needs to be a categorical recognition that rape with an object is potentially as traumatic as vaginal penetration, and the law must also explicitly recognize that the victim isn’t mandated to assert physical resistance to show a lack of consent. The exception to Section 375 must be removed, and marital rape ought to be specifically criminalized within the provision. Further, section 354 must be freed of its antiquated wording, and acts of sexual violence not amounting to rape need to be clearly defined (including criminalization of acid attacks, sexual harassment, groping, etc.) and graded based on levels of harm. That an act of sexual violence against a woman is an insult to her human dignity ought to be uncompromisingly recognized.

Human Rights Watch in a comprehensive 2010 report, “Dignity on Trial,” highlights the anathema of the “two-finger test,” which has come to represent standard medical practice, even though past sexual history has been disallowed in rape trials since 2003. As Pratiksha Baxi points out in this post, and as Jeet Shroff wrote in these pages, the test based on the survivor’s uninformed consent is inevitably introduced as evidence. The practice entails insertion by doctors of two fingers in the victim’s vagina to ascertain whether the hymen can stretch without tearing—as the HRW report showcases, the test is used routinely to determine whether a rape survivor was “habituated to sexual intercourse.” According to the HRW report, since 2005 at least 153 court decisions from 18 different High Courts have cited finger test results or doctors’ opinions about whether or not the survivor was “habituated,” “accustomed,” or “used” to sex. If the law of the land as laid down by the Supreme Court mandates that a rape survivor’s sexual history ought not to discredit testimony, how is it that results from finger tests are customarily introduced as evidence? Over and above being devoid of any scientific weight, these tests are also tantamount to torture—in many cases they can exacerbate the survivor’s trauma by mimicking penile penetration. The two-finger test must not only be banned but also criminalized—it is a damning indictment of a system that is bizarrely prejudiced against the victim.[2]

Finally, a few words on punishment: In the immediate wake of the horrific incident in New Delhi, there has been a clamor to introduce the death penalty, and even chemical castration,[3] for rapists. These suggestions, though, are far from helpful, and do little more than quench a thirst for immediate retributive justice. There is little empirical evidence to suggest that capital punishment serves as a deterrent for future crime, apart from being a state-sponsored abomination. The focus should instead be on the conviction rate. A mere 26 percent of all registered rape cases in 2011 lead to convictions, according to the National Crime Records Bureau, a statistic that is even more appalling when you consider that more than 50 percent of the cases go unregistered. The reasons for the low conviction rate are likely innumerable, but chief among them is the retention of colonial-era laws that place the burden on the conduct of the survivor as opposed to the conduct of the accused.

Setting right the legal system will admittedly only serve a limited purpose in alleviating the larger problem: a society that breeds inequality and contempt for women. There is a shocking lack of participation by women in politics, with more than 90 percent of the seats, for instance, in Parliament held by men. The Women’s Reservation Bill, which will guarantee a certain number of seats for women in the Parliament, has gone nowhere. Female feoticide remains rampant. Girls continue to be criminally undereducated. Our country, more than sixty five years after independence, remains brutally misogynous. That our laws, such as the provisions concerning sexual violence contained in the Indian Penal Code, encourage this culture is shameful. Correcting these, at the very least, may be a step in the right direction.

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