“…offenders who raped unmarried (and virginal) women got higher sentences in contrast to men who raped married women”

Mrinal Satish, Associate Professor, National Law University, Delhi …examined all rape cases decided by all High Courts and the Supreme Court over the last twenty five years.

Let me share some bits from: Chastity, Virginity, Marriageability, and Rape Sentencing

The crucial question is: how do courts determine the appropriate sentence to be imposed on an offender?

What makes rape sentencing different from sentencing for other crimes?

In these imaginations, rape is not a crime against a woman’s sexual autonomy or bodily integrity, but an irreparable loss to her chastity, “modesty,” and social standing. A woman who has already “lost” her chastity and modesty by having sexual relations before or outside of marriage, is not considered to have suffered too much harm; and the perpetrator is therefore not required to be punished too severely.

Unlike laws of various other countries, Indian law does not require the prosecution to prove that the offender knew that the woman had not consented, or intended to rape the woman. The woman’s testimony that she had not consented to intercourse is sufficient. In fact, the Supreme Court has consistently held that conviction can be based solely on the testimony of the woman, and there is no need for any other corroborating evidence. However, the court has to be satisfied that the woman’s testimony is reliable, and she is in fact stating the truth. It is in the determination of the reliability of the victim’s testimony that stereotypes enter rape adjudication.

An important piece of evidence in rape cases is the report of the medical examination of the rape victim.

Another factor related to virginity is the perceived loss experienced by an unmarried victim, in terms of her marriageability. The Supreme Court has in a number of cases noted how rape adversely affects the chances of a woman finding a suitable groom. In this context, the Court has even held that the marital status of the woman can be a relevant factor in rape sentencing. It is not surprising then that offenders who raped unmarried (and virginal) women got higher sentences in contrast to men who raped married women. Further, courts tend to impose lower sentences when a victim who was unmarried when the offence was committed, gets married during the trial. Since the rape did not impact the victim’s ability to get married, the harm caused by the offence is discounted. An egregious example of this approach is the Supreme Court’s decision in Baldev Singh v. State of Punjab (2011), another gang rape case that got a lot of media attention. One of the reasons that the Court gave for reducing the sentence in this case was that the victim was now married.

2. I found a marked decrease in sentences in cases where no injuries were present on the woman’s body. Hence, unfortunately, the notion that a woman should physically resist rape makes its way into rape sentencing.

3. …courts consider acquaintance rape to be less traumatic than rape by a stranger. Offenders who were in a romantic relationship with the women they raped got lower sentences, compared to their counterparts who raped women they did not know. In cases of statutory rape where the under-aged girl had consented to intercourse, courts consistently imposed lower sentences on the offenders, based on the understanding that the young woman had otherwise “contributed” to the offence.

6 thoughts on ““…offenders who raped unmarried (and virginal) women got higher sentences in contrast to men who raped married women”

  1. Not all of these findings are horrible. Age of consent in India is 18, is it not ? I *do* think that having sex with consenting girl who is 17 should receive a milder punishment than having sex with the same girl against her will. Infact I think it should be perfectly legal. Isn’t there an oddity in Indian law where married partners can legally have sex if they’re above age 15 ? This is a bullshit law since a married 16-year-old is not automatically more mature than a non-married 16-year-old, therefore if the consent of the married 16-year-old is considered valid, then the same should apply to the nonmarried 16 year old.

    I agree that most of the other examples are bad. Certainly if a woman is married or not, or if she gets married or not AFTER a rape, should play no role in determining the punishment.

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  2. “a married 16-year-old is not automatically more mature than a non-married 16-year-old”. Completely agree with this.

    Also, how does a person’s maturity correlate with his or her age? How can an unmarried girl of 17 years 364 days be immature to give consent while she suddenly turns mature a day later? Same goes for rapists who are let off with milder sentences if they are ‘juvenile’. Taking a person’s chronological age into consideration for crimes and their punishments is wrong. Same goes for consent.

    “the Supreme Court has consistently held that conviction can be based solely on the testimony of the woman, and there is no need for any other corroborating evidence.” is rather contradictory to “a marked decrease in sentences in cases where no injuries were present on the woman’s body. Hence, unfortunately, the notion that a woman should physically resist rape makes its way into rape sentencing”.

    If the woman’s testimony is to be solely considered, then it shouldn’t matter whether or not there are physical signs of resistance on her body. If the presence of physical signs is important, then a woman’s testimony cannot be the sole basis of conviction. The law needs to clear this out.

    Lastly, the elderly legal fraternity we have today have obviously grown up with the mindset that links chastity, virginity, marriageability with rape sentencing. So it shouldn’t be strange to expect them to assess the reliability of a woman’s testimony by her past history which in turn is based on stereotypes. We can and should expect changes in court proceedings and decisions when the younger generation of today gets to the high ranks in the legal system.

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    • Your critique of age as a criterion is valid. It’s true that age alone does not determine maturity. One person is more mature at 15 than another person is at 25, this is just a fact.

      Nevertheless there’s also some advantages to use age. First of all, it’s simple and easy. Second it’s objectively measurable, and we already have an official record of a persons age.

      The alternatives are all complicated. What do you suggest ? A certificate of maturity ? A test of some sort to pass to be deemed “capable of meaningful consent” ? Who will administer these tests ? Who will decide what the demands are ? These are tricky, and expensive questions to answer. Age isn’t perfect, but it works ok.

      For this reason, we use age in many situations, despite the fact that it’s not a perfect indicator of anything. We use age to determine if a person can vote. To determine if a person can serve in the military. If a person can drive a car. If a person can get retirement-benefits. If a person can buy alcohol, and for many many other things.

      But though you turn 18 on a specific day, as you correctly point out, there’s no huge difference between 17 + 364 days and 18. This is one reason that it’s *reasonable* to have milder punishments for those who are “close to legal”.

      The law in Norway takes this into account. Here’s the broad lines of age of consent in Norway:

      First, only having sex with someone against their will, or when they’re unconscious or otherwise unable to state their opinion, is considered rape in Norway, sex with a too-young but consenting person, isn’t considered “rape”.

      Second, the age-limits only apply if the participants are different in age and/or development. If both are similarily old, then no crime occured. It’s meaningless to punish a 18 year old girl with a 17.5 year old boyfriend when both consented and both are really similar old.

      Third, there’s two different categories of “sex with a minor”, the age of consent here is 16, and there are different penalties for “sex with a minor under 16” and “sex with a minor under 14”. This matches reality. You don’t magically become adult on one day, instead you gradually mature and your consent becomes gradually more and more informed, and thus more and more meaningful.

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      • “it’s simple and easy” and “it’s objectively measurable”.

        Just because something is simple and easy doesn’t automatically make it right. About the point of age being objectively measurable, that is valid only by measuring age at the time when its assessment is needed.

        If you go by the official record of a person’s age (birth certificate or high school certificate) it is prone to be manipulated. In fact it is extremely extremely common to find people getting false birth certificates to get benefit in their educational or professional life.

        Also, there have been instances where a person undergoing trial for a crime didn’t have any proof of age. In such conditions, a medical assessment of age is done which is obviously much more reliable than a forged document of age. If a medical assessment of age can be done in select cases, why not the same for maturity? We have IQ tests to assess the intelligence of persons. So why can’t we have a MQ test to assess the maturity? Obviously, any test only holds valid when it is done at the time needed. Any previous documentation is always prone to be manipulated.

        Voting, driving or serving in the military are not crimes. But it is wrong to bring benefit of doubt into play in cases of crimes on the basis of age.

        In the recent Delhi rape case, the most brutal of the rapists is supposedly a juvenile. It is absolutely stupid to imagine that whatever his age be, he was unaware of the nature and consequences of the crime he committed. Even if he was 14 years old!

        The problem we have here is that even if age is accurately measurable by whatever means, it shouldn’t be the deciding factor in cases of crime. Suppose a rapist undergoes medical assessment of his age which confirms him to be exactly 16 years, 2 months old. Does that mean he doesn’t understand the nature and consequences of rape? On the other hand, a 25 year old person whose mental age is 12 years cannot be expected to understand that he has even committed a crime. Same goes for a normal 10 year old.

        The point is, you cannot ‘assume’ anyone’s maturity by his or her chronological age. Specially in crimes, you need to know a person’s maturity level to handle the case with justice.

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  3. Pingback: “let me ask – how many girls in city remain pure till marriage ?” | The Life and Times of an Indian Homemaker

  4. Pingback: 40% of rape charges were filed by parents of girls who had eloped consensually with a boy | The Life and Times of an Indian Homemaker

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