Redefining rape

India – Women are increasingly reporting sexual violations/exploitation within the home, workplace, friends’ circle or university that don’t quite match the strict requirements of ‘rape’ or the loose connotations of ‘outraging her modesty’, the two broad types of sexual violations that the law recognises. Will the long-pending Sexual Assault Bill help?

A couple of years ago, an unusual case came to the women’s group with which I worked. A sombre-looking young woman, a research scholar from a reputed university claimed that she had been raped by a fellow student over the last two years. It was the standard story from a city campus. She and her colleague had been having an affair, and he had promised to marry her as soon as he had made it to the civil services. It was under this promise and this assumption that she said, she agreed to have sexual intercourse with him. However, two years on, she got a phone call from the gentleman, who had gone to his home state Bihar apparently to see to an ailing father, saying their relationship could not continue. He had meanwhile made it to the civil services. She was soon informed that at the time of the call he had already been married to another woman, who incidentally had brought a hefty dowry — only befitting a young IAS officer on the threshold of a promising career.

The young woman was enraged and humiliated, and had already been to various authorities and groups to help her pursue a legal case against this man. She was insulted, violated, and sick with pain and anger.

Despite this, she had come well prepared. Having researched the legal precedents of such allegations, she startled us with her intense argument on how this was definitely rape, how she had evidence of his promises, and brought to our notice two similar cases in Kolkata, which had been won by the petitioner.

The allegations created a storm within the group as well. Heated discussions ensued about the exact nature of the crime. Was it rape at all? Had the act not been consensual at the time? Was this not just a case of a woman scorned? Was this her way of taking revenge on an ex-boyfriend who had betrayed her? It was definitely betrayal, clearly deceitful and undeniably wrong. But if one were to count the number of times women everywhere have fallen prey to such promises, so many sexual relations could be construed as rape.

Yet we had all seen the young woman, and what she was undergoing could not be denied. She had been deeply violated, was suffering mental and physical trauma, and in urgent need of medical and counseling support. She was like any of the other women who had been sexually assaulted or ‘raped’ in the conventional understanding. The impact of her experience was the same. The experience had scarred her in a similar manner.

A few months later controversy erupted surrounding the allegations of a model and actress against a director known for making gritty ‘realistic’ films (and having 3 National Awards to boot), raising similar questions. The model alleged that the director had promised her a role in his next film and also that he would marry her, and sexually exploited her under these false promises. She claimed that he had ‘raped’ her several times over a period of five years. A few years later she was arrested for having paid Rs 70,000 to the underworld to bump off the director. She had no hope in the justice system it seemed. The case is still going on, with a Mumbai court refusing to drop charges against the director in November 2009 thereby ensuring that he stands for trial, even though the media (a law unto themselves) observed that the director “seemed like a decent man”.

Now, between the two extremes of ‘outraging a woman’s modesty’ and ‘rape’ (a specific idea and definition of rape that is articulated in the law and in practice is difficult to find), the two broad types of sexual violations the law recognises, the model hardly had any options to classify her experience of sexual exploitation. The same goes for the young woman who had approached the women’s group and for hundreds of other women who face forced sexual intercourse, assault or exploitation in multiple conditions – within the home, within marriage, within a relationship, within the workplace, within their ‘friends’ circle, within their university or institution — that doesn’t quite match the strict requirements of ‘rape’ or the loose connotations of ‘outraging her modesty’. These are most often the cases where it is inferred that there was ‘consent’ at some level from the woman involved.

Consent itself is a slippery term. It is construed as the exercise of ‘free’ will in a world where everyone is assumed to be on a level footing, but in relationships between most men and women, there is always an imbalance of power, and the terms on which intimate transactions are made are rarely equal. How can we begin to understand how complicated consent is?

A year ago, there was the TISS gang rape case in which a 23-year-old woman student, a foreign national who was in TISS to do a short-term course, had been out drinking with ‘friends’ and went with the group to a ‘friend’s friend’s’ house, where she was raped by six young men, apparently from ‘good families’ who had come to Mumbai to study. She registered an FIR and the six accused were rounded up. But the inevitable questions were there and the media went to town with accounts of what ‘nice guys’ the rapists were. She went consensually to the boy’s place, it was argued. Why was she accompanying six men so late at night? But was she alone with a stranger in some dark alley? No. She was with six people — a crowd. Would you ever imagine that it could be a situation for rape? Which part of consent do we look at: where she agreed to go to a ‘friend’s friend’s’ house, or when she was not asked before being drugged and assaulted by six young men from ‘good families’?

Then there are the hundreds of MMS cases that flood Palika Bazar or do the rounds. The Mysore Mallige or DPS scandal, where women are consensually and trustingly doing something with a partner, a trusted lover who you would never imagine could ‘leak’ out such intimacies to the outside world – for money, for kicks, for revenge if things don’t work out. The irony is this. That it is friends, relatives, people we trust, who are capable of such acts.

What could we call it? Betrayal? That would be too weak, and the same as being cheated by an auto driver or a visa middleman. Rape? Too loaded — ‘rapists’ are often construed as being from another planet and most men (despite repeated evidence) cannot face the reality that rapists are men too much like them. There is no language, legal or otherwise, to express the range of violations and abuse women face and the impunity that men enjoy when it comes to crimes of a sexual nature. And as cases like these hurtle through the daily churn of media, they will continue to suggest women’s complicity in crimes against her. Somehow at the end, the men always seem to come out as ‘decent men’, from ‘good families’, even the ‘poor victim’, while the women – brave enough to come out and bare their pain and anger, will be, well naïve at best.

The term ‘rape’ in itself has been one surrounded by controversy and debate over the last decade. Lobbying by feminist groups over two decades has brought the debate to a stage in which ‘rape’ could be substituted with ‘sexual assault’ in our law, and its definition could be expanded from its current narrow interpretation of only ‘penile penetration’, and procedures could be made easier for women to report cases of assault and demand justice. Perhaps even this is insufficient to capture the elements of breach of trust, deceit, male abuse of power and violation of dignity that underlie such acts.

How can we capture these transgressions, these betrayals, these slippery slopes with the narrow net full of holes that the law casts over sexual assault? The new and long-pending Sexual Assault Bill that tries to plug some of these has been on the cusp of being introduced in parliament for many years now, but for many of us who have faced these betrayals and are living with the unspoken memory of assault swallowed like a bitter painful pill, it’s already too little, too late.

Infochange News & Features, May 2010