Rape, Female Bodies, and Language in the Courtroom

Two judgements in August 2017 came under the scanner for the language they used to define consent and talk about survivors of sexual assault.

On 13th September, the Punjab and Haryana High Court at Chandigarh suspended the sentence awarded to three Jindal Global Law School students convicted for blackmailing and gang raping a fellow student for about two years:

“The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reason to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.”¹

On 25th September, the Delhi High court at New Delhi acquitted Peepli Live co-director Mahmood Farooqui of raping a US citizen and research scholar in his South Delhi home. He had been convicted under Section 376(1)in July 2016 by a Special Fast Track Court in Saket:

"In an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no." ²

The assumptions in the language used in the judgements are troubling: “a feeble no may mean a yes”and a lack of “gut wrenching violence” in a sexual encounter “offers an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters.”

Both judgements unwarrantedly invoke the previous sexual history of the survivor.

What do these judgements say about how women’s bodies are talked about, how rape and consent are defined in the courtroom and how perceptions about gender affect the understanding of violence?

A look at a few articles from our archives:

In a 1996 paper, Veena Das demonstrated how talking a certain way about rape means that courts often read passive submission under coercion as consent. She examines how the courts often construct a category of women in whose case a 'no' to sex can be converted to a 'yes' by the application of judicial reasoning. Women who show 'illicit' desire by being sexually active outside marriage or by having a purportedly loose virtue become consensual objects of male desire even against their will.

Durba Mitra and Mrinal Satish (2014) use a detailed analysis of the history of medical jurisprudence textbooks and their use in case law to argue that these textbooks undermine legal reforms in India. Medical manuals promote the collection of prejudicial and legally irrelevant evidence and reinforce the notion that Indian women frequently bring false charges of rape.

Rukmini Sen (2010) discusses how, between 1956 and 2009, four Law Commission reports addressed the issue of rape. However, it is noteworthy that at the time the article was written there had been little to no change in Section 375 of the Indian Penal Code, since 1860 when Thomas Macaulay drafted the code. The controversial issue of consent had not been defined or broadened, nor have the various nuances associated with it recognised. The law ministry has not accepted the terminological and paradigmatic shift from rape to sexual assault.