This paper aims at analyzing the problem of rape culture in India from various perspectives and discussing the reforms needed to curb it. Though many legislative amendments have been made with the intention of giving justice to rape victims, there has been limited effort to study the cause of the crime or to eradicate it from its roots. There is a desperate need to gain a fresh perspective, especially after the disturbing events that occurred in the city of Hyderabad on the 27th of November 2019. By analyzing the root causes there is a hope that one day these sort of crimes can be completely eliminated from India. There is an in depth analysis of rape by referencing the two most gruesome crimes which occurred in Delhi and Hyderabad.
Crime against women also known as gender- based violence has been one of India’s greatest hurdles on its way to becoming a developed nation. Rape, kidnapping, flesh trade, dowry killings have become rampant in the past few years.
Sexual assault, rape and verbal abuse has become a common problem in India. Rape is the fourth most common crime against women in India. Women of all ages and social stratas are affected by this issue. What has lead to the increasing trend of crime against women? And what reforms need to be made in laws to deter future criminals?
The 2012 Delhi rape case, in which Nirbhaya,a young woman was gang raped and killed by 5 men, gained a lot of international attention. Nirbahaya boarded a bus,from Munirka and was attacked and gang-raped as her male friend accompanying her tried to protect her and was injured in the incident. Nirbhaya was brutally raped, beaten and thrown to the side of a road. The inhumane nature of the crime left the masses trembling with fear. It shook the country to its core and women all over India realized that a serious change was required to ensure the safety of women. 5 offenders were identified to be men between the ages of 19-35 years and the sixth offender in the Nirbhaya case was a juvenile. Delhi Police had initially booked the six men under sections 307 (attempt to murder), 201 (destruction of evidence), 365 (kidnapping or abducting), 376 (2)(g) (gang rape), 377 (unnatural offences), 394 (hurting in committing robbery) and 34 (common intention) of the Indian Penal Code.
Seven years later little has changed in India. This realization struck the masses as a 27 year old hyderabad veterinarian was gang raped in November 2019. Thousands of unsolved cases came to light as gaping holes in the Indian legal system were discovered. There is still a lack of forensic assistance, fast track courts and investigators. A shocking report revealed that DNA analysis took 2-3 years as very few forensic labs were available compared to the magnitude of cases. No provisions have been made for an emergency response system even after the nationwide outcry for women's safety.
EXTENT OF THE PROBLEM IN INDIA
Rape culture in India has become rampant in the past decade. Even though the crimes have been on the rise the changes required to protect women have been none. The long and tedious trial itself is another tragedy for the woman. By the time any kind of justice is acquired the victim has gone through much more trauma than that which was initially inflicted on her.This has led to thousands of crimes going unreported as women do not want to face this ordeal and social stigma. So what changes need to be made to make these trials easier and more victim friendly?
As we can see in the table below, there has been a consistent increase in the rape cases reported every year but the conviction rate remains stagnant. Let us analyze the factors that might have contributed to these deadly statistics.
DEFINITION OF RAPE
IPC section 375
Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
- Against her will.
- Without her consent.
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
This is the old definition of Rape. It had a very narrow scope and left out all other sexual assaults outside the purview of rape. The criminal law ( Amendment ) Act 2013 has made changes to the legislation to include Non penetrative sex as well. Rape is now defined to mean all other forms of sexual assault as well.
FACTORS CONTRIBUTING TO RAPE CULTURE IN INDIA
LACK OF EDUCATION - The education system in India severely lacks imparting awareness among young children. Without the knowledge of the act being committed and the concept of consent, the rise in rapes committed by juvenile offenders has been on a rise. Due to the conservative nature of the Indian society, it is a far fetched dream that children will be educated on the subject of rape from an early age. Rural population (% of total population) in India was reported at 66.46 % in 2017, according to the World Bank collection of development indicators, compiled from officially recognized sources. Even if the major cities like Mumbai, Delhi or Bangalore incorporate this module in their schools, almost 67% of school children still remain uneducated on the subject. This will hardly benefit the overall statistics of rape in India.
JUSTICE SYSTEM - The low conviction rate for the crime of rape is a major factor contributing to its increase. There are no fast track courts in place for the speedy justice of rape victims. Even though the offenders in the Delhi Rape case are being tried in a fast track court it has been 7 years since the crime was committed and yet there have been various review petitions and mercy petitions filed by the offenders in 2019. No deterrent effect is created by the justice system to scare future offenders for the consequences of their crime. Rape is a non-bailble offence in India. Nonetheless most offenders get bail due to lack of evidence, corruption or political contacts. The investigative system is generally insensitive towards the rape victim and to top it the judgemental society. Once the case goes to trial it can be years until a judgement is passed. Thus it would take a long time for the offenders to finally get convicted and the victim to move on with her life.
GENDER INEQUALITY - India is a male dominated society. Even though the Indian constitution gives men and women equal rights, the patriarchal system has left women handicapped to a great extent. Many rape cases go unreported due to the social stigma that is attached to rape. Women in general are afraid to report such crimes as the men in their own family might disown them. It would be difficult to get a woman married if she has been raped. Such women and their families are sometimes shunned by society. Even if the victim builds up the courage to report the case she has to go through a tough ordeal with the investigative authorities. There is no provision for women to report the details of the crime to female police officers. Thus, in most cases the victim has to give a detailed explanation of the crime and also her sexual history to a male officer. Many times this process itself is further demeaning and traumatic for the victim. It has been observed that during the trial of a rape case the women are blamed for wearing provocative clothing and thus being the cause of the rape. During the Nirbhaya trial one of the main offenders mentioned how the victim should not have been out of her house at 9pm and this raised questions about her decency and her character. This statement itself gives us an idea of the perception of women and their rights. Without a change in this fanatic conservatism, it will be difficult to prevent these sort of crimes.
INDIVIDUAL MOTIVE- Many a times rape might be committed by a man to show off his masculanity. The offender might want to take revenge against the victim or her family. It is a common practice in India that a young female member of the family will be targeted to tarnish the family’s reputation. The offender might also have some psychological issues, for example he might be a sex addict. In most cases there is no medical diagnosis or treatment since there is no awareness regarding these mental illnesses. As a result such individuals go rogue and indulge in criminal acts.
An important question was raised during the Nirbahaya trial, whether juvenile offenders should be treated as adults in case of heinous crimes like rape and murder?
The Juvenile Justice (Care and protection Act) 2000 was first passed in 1986. This act was passed to protect the interest of children who found themselves on the wrong side of the law. The act fulfills its purpose in the sense that it demands all individuals under the age of 18 years should be tried as Juvenile offenders even in the case of heinous crimes. At the time this Act was passed this provision might have been acceptable or even practical. But with the increasing amount of perpetrators who are found to be children, this provision no longer serves justice.
With such a provision in place people will try to protect their ward by claiming that they are a juvenile. This loophole related to the age of the offenders was a great issue in the Nirbhaya case. The Juvenile offender was declared to be 17 years and six month old on the day of the crime. This was determined by his school documents and birth certificate. A petition submitted by the Janata Party seeking the prosecution of the minor as an adult due to the violent nature of the crime was rejected by the Juvenile Justice Board. A maximum punishment of three years was awarded to the offender and he was thereafter released in 2015.
Pursuant to violent outrages and protest by people all over India the Juvenile Justice ( Care and Protection of Children) Act was passed in 2015. It repealed the earlier Act and made provisions for Juveniles in conflict with law between the ages of 16-18 years to be tried as adults in cases of heinous crimes. The magistrate now has the power to determine whether a juvenile should be tried as an adult. A new issue arose with the passing of the 2015 Act. The question was whether the Act could be applied retrospectively to the Nirbhaya Case. Despite the nationwide controversy this could not be done as the Indian constitution does not allow retrospective application of criminal laws.
Article 20. Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
This provision clearly strikes down any attempt to punish a criminal under laws that are formulated after the commission of the crime.
According to the Deterrence theory of punishment, people are less likely to commit a crime if the punishment for the crime is swift and certain. In the case of juvenile offenders, if heinous crimes like rape and muder are punished with a minimum sentence and later the criminals are set free,
- Imparting sex education in schools all over India.
- Teaching children about the offence of rape and its consequences.
- Self defence training for girls that begins in their school.
- Raising awareness about gender bias and how to eradicate it.
- Campaigns to change the overall mindset in India and to uplift the status of women.
- Increased support to the victim so that rape cases do not go unreported.
- Support groups for the victim and her family so that they can get through the tragedy.
- Making sure that the victim and her family are not socially shunned.
- Increased Media coverage for rape cases
- Raising awareness about rape in the rural areas and giving them knowledge about the legal action that can be taken.
- Free legal aid for rape victims.
- Amendment of Rape Laws to make them par with international standards.
- Changing the law to make is more victim friendly.
- Change in the evidence collection procedure to increase the chances of a conviction.
- Increasing the number of forensic labs so that DNA testing is quick and efficient.
- Establishment of an emergency response system.
- Immediate filing of FIR in cases of Rape.
- Provision of female police officers during the investigation to make the victim feel comfortable.
- Establishment of fast track courts that give verdicts within a realistic time frame
- Medical examination of victim should be made as sensitive as possible.
- Maximum punishment should be awarded in cases of rape.
This paper has analyzed the crime of Rape from various perspectives. It suggests reforms to prevent the crime and also mentions actions that can be taken after the crime is committed. A better understanding of the crime and its root cause will help the process of eradicating it.