08 Januar 2013

A Note On Rape

In a recent popular bollywood jingle Sheila ki jawani (easily available on youtube) the heroine sings that she is proud of her body and will not let the protagonist ‘have her’. Of course, a bollywood (or for that matter, Hollywood) hunk would not like that! At the end of the song the hero somewhat forcibly throws her on his shoulder and takes her back with him. Such force and paternalism was justified (by the director) on the basis of the romantic interest that the hero had on the heroine. The scene is a representative one amongst the thousands of movies made in India every year. Stereotyping of women permeates all kinds of media. The BMWs and Mercedes Benzes will always have scantily clad women admiring the vehicles. While one should not object to the free (!) will of women models to get cozy with the cars, one wonders why scantily clad men are absent in television commercials featuring high end cars? I cannot blame my reader if by now she thinks, alright, this is another piece bashing media for social ills. However, that is not the purpose of this essay. Quite contrary to that, the purpose of this essay is to point out that there is no one factor that can account for social problems.

After the brutal gang-rape of a 23 year old Indian student on the busy streets of New Delhi by six men a significant number of Indian citizens and the majority of politicians are clamouring to mandate chemical castration and death penalty for rapists. Politicians cannot be blamed for grabbing the opportunity of riding on the rage and retribution so apparently visible in the society in close proximity of the incident. It is not altogether a different problem that India now has only politicians and no leaders, otherwise politicians found so rightly on the right side of the rape-crime this time, have had records of ignoring rape-victims because of the fear of alienating high caste voters who were alleged rapists. In the present case, while politicians of all colour and belief are concerned about the immediate punishment to be meted out to the perpetrators, the multifarious problems of the society remain unaddressed. In this essay, without claiming any comprehensiveness, I will allude to the different factors that are contributory to rape and other offences against women in India. Such crimes are by no means a phenomenon only in India – it is prevalent in many other Western nations, some of which have precarious records to address such crimes. Some of the observations, therefore, might also be true for these other countries.

In India crime against women needs to be addressed both on short-term and on long-term basis. Taking a leaf from the politicians’ pages, the law related to rape and other bodily offenses against women need to be revisited. However, my primary concern is not with the punishment for the offence of rape, even though I will address it. The definition of rape needs to be amended first. As per the present definition of rape, as it exists in the Indian Penal Code of 1860, a man commits rape of a woman if he “has sexual intercourse with a woman” (section 375) against her will or consent. The peno-vaginal penetration is taken to constitute the offence of rape. However, in the recent Delhi rape case, newspapers reported that iron rod was used to penetrate the victim’s vagina. Moreover, it is also reported that one of the perpetrators of the offence stick his hand through the victim’s vagina and pulled her uterus out and damaged her intestine irreparably. Thus, the perpetrator did not commit the offence of rape under the Indian Penal Code.

Rape is perceived by the lawmakers (and a large number of people) as a sexual offence. However, as the present incident goes on to show, rape/assault is violence against women by forcibly subjugating victims at the pervert filthy-fancy or rage of perpetrators. It is not necessarily an offence to derive physical pleasure. Accordingly, the proposed punishment of chemical castration would hardly serve as a deterrent to future perpetrators, if at all deterrence is capable to reducing crime rate against bodily injury. The incidence of murder has not gone down rapidly because murder is deterred with death penalty. However, death penalty for rape seems to be favoured by many Indian politicians. It is an irony that people who claim to be building societies have given up on it. Removal of an individual from the society is admittance of the fact that the society has totally failed, and has no way of integrating such individual into social fold. However, in the immediate aftermath of the brutal incident it is an easy choice for the politicians. If death is proposed, nothing else needs to be done.

Non legal factors are perhaps more important for the prevention of crime against bodily harm or crime against property. Delhi has earned the infamy of being the rape-capital of India. Delhi is surrounded by the states of Utter Pradesh, Rajasthan, Haryana, and Uttarakhand, two of which are members of the five most backward states in India. The glitz and shine of Delhi is alien to the majority of the population of these neighbouring states. However, I am far from claiming that because of the economic and social differences people in these states are turning rapists – that will be too simplistic a proposition (to be sure rapes also happen in these states in India, where the majority of victims belong to the lowest castes). What this disparity in wealth, infrastructure, and lifestyle is doing is making some people increasingly frustrated with themselves because their needs far exceed their haves, which are also socially construed. Inebriated joy-ride in an unlicensed bus on busy Delhi roads was, thus, one of the ways in realisation of those needs. The perpetrators, who are reported to be normal people in their own neighbourhood had so much rage while anonymous that they did not hesitate to tear away uterus and intestine by bare hands. Rape is not (only) about sex! It is about uncontrolled power arising from hate, vendetta, and animal instinct.

Irrespective of social inequality some of the inherent causes for offences against bodily integrity could be successfully addressed through education – a gender sensitive one. It is not enough to raise daughters as sons, it is necessary to raise sons as daughters too. A lack of proper education is evident when the President of India’s son, also a Member of Parliament, belittles the protest against rape by claiming that the women protesters are highly “dented and painted”, and therefore their protest is only an eyewash! Much has been said than done. One Indian Parliamentarian described the Delhi victim as a living dead when she was alive after being raped. Another described a rape victim in Kolkata as an escort who had a problem with her client, and therefore unchaste. One Guru in an ashram advised women to pray and request rapists to save her. Advises are pouring in as to women should not go out at night, they should not wear skirts.  These attitudes are all in keeping with the mentality that a woman’s chastity and dignity is forever lost once an offence against her body is committed. Such a mentality prohibits a large number of victims to complain against their offenders. And these attitudes are inculcated through family, school, peer and professional education and interaction. The system needs overhaul before it is too late and too many people suffer horrendous violence against body, some are castrated, and rest thrown at gallows. Like compulsory environmental courses one could think of compulsory gender courses in schools and colleges.

However, the long term programmes of striking social equality and inculcating proper education can be no substitute for a sincere corruption-free administration. If only bus licenses were regularly examined, it could have been found that the bus was plying unauthorised on Delhi streets. If only there were appropriate traffic vigils the driver(s) could have been found liable for drunk-driving. If the police officials did not delay in debating their jurisdiction issues in attending the victim, the victim would have had more time in the hospital. Even though these long-term and short-term measures are taken, there might still be offences against bodily integrity and consequent injury. There is no full proof method for social amity and peace. However, in the immediate aftermath of a horrendous crime the important thing is not to forget the multifarious nature of issues to be dealt with in addressing the issues in hand.

SUGGESTED CITATION  Routh, Supriya: A Note On Rape, VerfBlog, 2013/1/08, https://verfassungsblog.de/a-note-on-rape/, DOI: 10.17176/20181005-174813-0.


  1. hannah Di 8 Jan 2013 at 21:22 - Reply

    This „mentality“ your are talking about is called RAPE CULTURE and it is deeply embedded in our cultures and therefore of course displayed in our law. This is not only the case in India but also in Germany as well. You are not a proper vicitim if you did not fight back enough, in Germany it is not enough for a 15-year old girl to say „No“ to her rapist:

    English: http://www.thelocal.de/society/20120914-44961.html#.UOx_UHckRNI

    Those laws need to be changed ASAP!!!

  2. hannah Di 8 Jan 2013 at 21:49 - Reply

    p.s. Rape is about power and domination and not about sex.

  3. Supriya Di 8 Jan 2013 at 23:36 - Reply

    Thanks Hannah for sharing my point of view. I totally agree with you about the mentality and the attitude of the legislators. The problem is that legislators are also the product of the society, and accordingly, influenced by the same prejudices – equally in Germany or in India! We need to focus on changing the social perception! The German case you shared (perhaps your article) is shocking!

  4. S. Mi 9 Jan 2013 at 01:47 - Reply

    Is it even accurate to call the Delhi case a gang rape? Wouldn’t torture with intent to kill be a more fitting description?

    I don’t know what the maximum penalty is for rape in India (ten years?) but this was murder with aggravating circumstances.

  5. Supriya Mi 9 Jan 2013 at 10:05 - Reply

    That is right. After the death of the victim the charges are murder (one of rarest of rare cases, which might invite death penalty) with collective responsibility. Otherwise, for rape minimum is 7 years and maximum is life imprisonment unde the Indian Penal Code.

    There are several other charges including attempt to murder (if the victim lives) that could be leveled for bodily injury to women.

  6. Golson Mi 9 Jan 2013 at 12:22 - Reply

    I agree with commenter hannah that Germany’s judicial treatment of rape is problematic. Another recent example came last month in Berlin, when three perpetrators between the ages of 17 and 19, two of whom had already been serving suspended sentences for assault and battery, were sentenced to only suspended sentences (again!) from 11 to 13 months for engaging in gang rape of a young woman who was under the influence of drugs and alcohol.

  7. jansalterego Fr 11 Jan 2013 at 13:09 - Reply

    @ Golson: Please take into account that the perpetrators in Berlin were sentenced under juvenile criminal law, which focusses not on the perpetrator´s guilt but on their education. Thus the sentences under juvenile criminal law in Germany are only as high as neccessary to educate the perpetrators to the point where they won´t relapse into delinquency. The system is hardly perfect, however studies have shown time and again that stricter/longer sentences have no deterring effect whatsoever unless they are out of proportion to the crime (think life sentence for not wearing your seatbelt while driving).
    As I am sure Supriya will agree, a societal dysfunction like rape culture cannot be rectified by criminal law. There are a multitude of reasons for phenomena like rape culture and they can only be adressed by changing societal attitudes on a fundamental level, something criminal law has never been able to accomplish.

  8. Supriya Sa 12 Jan 2013 at 00:32 - Reply

    @ jansalterego: I totally agree with your second paragraph – that was also the point that I was trying to make through the article. However, that is not a very popular position to take right after a horrendous crime!

    I am glad that you brought up the juvenile issue, because in the Delhi rape case one of the six accused is a juvenile. Accordingly, media and a large section of people (I think, the majority) is clamouring for death sentence for juvenile (in India, I think like in Germany, juveniles are not punished, but corrected) – and wants to government to change laws to execute juveniles. If one objects to such a stand, people react in a manner of disbelief !!!

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