If many in the police and a large part of the society do not know (or agree with) what Rape is, who are we hoping to hang for ‘raping’?
Take a look at just six (out of thousands) rape cases we read about, do you think having Capital Punishment for rape would have made any difference to these rapists?
1. Mathura, 16, was accused of being a liar. It was stated that since she was ‘habituated to sexual intercourse’ her consent was ‘voluntary’; under the circumstances only sexual intercourse could be proved and not rape.
The Bombay High Court set aside the judgment of the Sessions Court, held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.
However, the Supreme Court again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.
The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.
2. In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance.
The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.
3. Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi, wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit.
4. Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police – acting on a complaint filed by her neighbour.
With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.
The suit was squashed by the High Court, while observing that ‘ it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.’
5. The Bombay High Court has reduced punishment for a man convicted of sodomising a 10-month-old girl child, accepting his contention that he lost control over himself as he was living away from his family. [Does a rapist deserve a reduced sentence because he lost control since he was living away from his family?
Isn’t it essential that we make sure that it is understood by all that lack of consent is rape, and ‘Only yes means Yes’ even if the woman was wearing a salwar kurta in Andhra or Jeans in Haryana or UP; or dancing in a pub in Mangalore and Kolkata; or drinking in Guwahati; celebrating a birthday party with friends in Noida; or was outside her house or took a radio cab after 8 pm in Gurgaon?
And that it’s Rape even if the rapist was living with his family, away from his family, was drunk, was well known, was of a certain caste, was a family man, was young, needed to support his family etc.