Sexual Assault: A Pandemic Problem with No End in Sight

-KEERTHANA CHAVALY (ASSISTANT EDITOR)

“The husband and wife were considered a single entity: the husband” is the basic idea of Coverture¹, the logic that was used to create laws that justified marital rape – in the 17^th century, Sir Matthew Hale stated², “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.” In India, Section 375 of the Indian Penal Code legalizes marital rape by carving out an exemption for it under existing rape laws, a horrific remnant of India’s British colonial history. More specifically, non-consensual sexual intercourse between a man and his wife, provided that the latter is above the age of fifteen, does not allow women to seek recourse from the law. 

Unfortunately, statistics related to this kind of assault are not readily available, not only because of the already prevalent stigma and shame surrounding sexual assault but also because police are reluctant to lodge cases owing to its legal status. Furthermore, the government seems to be exacerbating the problem by socially sanctioning the brutal act. In 2018, RIT and the All India Democratic Women’s Association petitioned the Delhi High Court, challenging the exemption under Section 375. The case, RIT Foundation vs Union of India, served to highlight the government’s patriarchal, discriminatory views surrounding marital rape. In its statement, it reported³ that, “what may appear as marital rape to an individual wife, it may not appear so to others” and seems to opine that illegalization of marital rape can threaten the institution of marriage – in 2017 the government stated⁴ that abolishing marital rape will “destabilize the institution of marriage, apart from being an easy tool for harassing husbands”. 

The laws around rape need to change and not just the ones concerning women. In August 2019, the Parliament passed The Transgender Persons (Protection of Rights) Bill that is discriminatory towards transpersons who are survivors of sexual assault – the Bill allows a minimum sentence of six months to a maximum of only two years to those convicted of threatening the life a transperson – which includes the act of rape. On the other hand, those convicted of sexually assaulting women are liable to receive a sentence of at least ten years to a maximum sentence of life imprisonment. 

The legal problems concerning sexual assault are not limited to legislation – even the judicial system contributes to the pressing issue. When Ranjan Gogoi, former Chief Justice of India was accused of sexual harassment, a committee formed by three Supreme Court judges absolved him of all guilt, while keeping the findings of their investigation secret. This complete lack of transparency is a testament to the absence of accountability that the accused in power possess. Even the conviction rate of sexual assault cases is dismal. The National Crime Records Bureau (NCRB)⁵ reports that only a little over 32% of sexual assaulters were convicted while over 127,800 cases were pending at the end of 2019. The entire legal process is flawed, for even if the accused are convicted, the long and arduous trial that is mentally traumatic for survivors. High-profile cases of rape, such as the Nirbhaya gang rape that took place in 2012 in Delhi, that stoke public outrage and contribute to shaping contemporary society’s attitudes towards rape, involve the sentencing of a death penalty to the offenders. This is a regressive method to deal with sexual assault cases – just one of the many reasons being that capital punishment actively deters conviction⁶.

The situation is growing direr as we speak – according to the latest report of the UN Human Development Index⁷, India has been experiencing a “backlash” in gender social norms bias – unwritten rules of behaviour that reinforce conventional gender roles. This could imply that rules reinforcing traditional masculinity, that emphasize brute force and power, and traditional femininity, that emphasizes docility and obedience, is on the rise. India needs to understand that rape is a problem that needs to be addressed through social interventions and institutional reformation, not through a broken legislative and judicial system.

REFERENCES :

1. Coverture, Encyclopaedia Britannica [online]. Available at : https://www.britannica.com/topic/coverture
2. Cheng Han, Tan (1989). JStor [online]. Available at : https://www.jstor.org/stable/24865602?seq=1
3. Choudhury, Sumedha (2018). Business Standard [online]. Available at : https://www.business-standard.com/article/current-affairs/why-criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html
4. Mittal, Priyanka (2017). Livemint [online]. Available at : https://www.livemint.com/Politics/szDyen0VanBxjJMdm4Y4YP/Centre-argues-against-making-marital-rape-a-crime-in-Delhi-h.html
5. Reality Check Team (2019). BBC [online]. Available at : https://www.bbc.com/news/world-50688435
6. Arya, Divya (2018). BBC [online]. Available at : https://www.bbc.com/news/world-asia-india-44922084
7. Human Development Report. UN [online]. Available at : http://hdr.undp.org/sites/default/files/hdr2019.pdf