Why our courts don't do justice to rape

The Bombay High Court's decision on December 28 last year has revived the debate on definitions of rape. Granting anticipatory bail to a man accused of rape by a woman with whom he purportedly had consensual sexual intercourse but did not marry in the end, Justice Mridula Bhatkar raised a question which pushes the envelope regarding the definition of "consent".  Does every promise to marry have to be fulfilled, even if the woman's decision to go all the way was based only upon that, she asked? Moreover, should the law criminalise every such unfulfilled promise as a false promise, especially when in those cases women are perfectly capable of gauging the veracity (or otherwise) of such vows and making up their minds accordingly?

It isn't the first time this issue has come before the courts. In fact, back in 2013, the Supreme Court had ruled in favour of Deepak Gulati who was booked for rape on the complaint of a woman who had willingly gone along and had a physical relationship with him, but cried foul later, alleging that he had lured her with a false promise of marriage. Was the complainant so gullible, the court had asked, and for good reason, too. Because, to assume every woman's vulnerability to such promises is tantamount to an overtly paternalistic legal system depriving women of their rights and agency.

But, this is only one of the multitudinous aspects of the constantly evolving definitions of rape by various courts. These rulings can be broadly classified into two categories - those hinging upon consent- a manifestation of intention, and those focusing on the act in question, which leans more on theories and principles of forensic science. It is the former category which is more intriguing and reflective of how judicial values remain either ossified or become progressive.

First, marital or spousal rape - that single area where courts have refused to budge over the years. The first major case was in 1996, when Bodhisattwa Gautam who conducted an informal wedding ceremony with the complainant, was accused of rape by securing consent through deceit. Even if the wedding ceremony did not meet all the requirements of law, the Supreme Court held, it did not make the man a criminal, because the woman had agreed to sexual intercourse believing herself to be the wife, and of course, conjugal responsibilities were essential to a marriage. It wasn't for courts, especially the criminal law, to intervene, because that would bring discord and marital strife and disturb the stability of society.

The court dealt with this issue again in 2004, and this time, there was an additional question with far-ranging implications - should rape mean only peno-vaginal intercourse, or should every form of penetration, even with objects, be included in the definition? Besides the issue of marital rape, there was also the pressing concern of acting against child sexual abuse. Unless the definition was widened, the perpetrators could be punished only for causing grievous hurt, which carried a much lenient sentence. But, the judges decided that enlarging the definition - of both penetration and marital rape, especially by courts, would lead to chaos and miscarriage of justice in all ranks of the police and magistracy, especially because such wide meanings were a "western construct" not suited to Indian society.

Priya Patel's case in 2006 posed a baffling question. Can a woman commit rape, for the legal definition is limited to a man forcibly or fraudulently having sexual intercourse with a member of the opposite sex. No, ruled the court, for such an act is "conceptually inconceivable". However, because the woman in question helped her husband in raping the victim, the judges held that she could be prosecuted for gang rape, since as per law, any "person", and only a man, could be charged with the offence.

Presently, the Supreme Court is hearing a PIL which seeks to ban all forms of pornography in India. One of the reasons urged for the blanket criminalisation of smut is that it causes, urges, and even instigates men, especially those of the extra-libidinous variety, to commit rape. In this context, one could revisit the Supreme Court's 1979 decision in Phul Singh and decide if such a ban would end, or further, the rape epidemic. The court came to the rescue of the 22-year-old accused, holding that he wasn't really a rapist, but a "philanderer", a "hyper sexed homo sapien" addicted to porn, and his act, wrongful as it was, could not be termed as "rape". It was, in the words of the bench, only an "erotic sortie".

From holding that a wife gives implied consent to sex at all times with her husband, to ruling that what is often termed rape is only an act of releasing repressed sexual energy, to deciding that the rape law must treat both the victim and the accused equally, our courts have travelled quite a distance. However, that one ruling, grounded in equity, which can be hailed as doing complete gender justice, remains elusive.