Comparative Analysis Of Anti Rape Laws Of India And United States
Author: LawSphereX
Category: Criminal Law
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COMPARATIVE
ANALYSIS
OF ANTI RAPE LAWS OF INDIA AND UNITED STATES Ashutosh Yadav, BML Munjal University, Gurugram Introduction Rape is a plague to the world as it is a crime which can be found in every society be it developed or not but how that law operates or how does it describe in terms of consent is different. Rape has numerous effects on the psychology of the victim as well as the society. Different Society views rape from different point of view, some look it at from the eyes of the victim and the degradation and the stigma that will follow them for the rest of their life or some society term it as the victim’s fault in many cases because of their inviting character, questions about their morality and credibility due to the judgement of their past is often raised in many societies, some societies view rape as gender neutral some classify victims as female only.
There is rape which are done from a position of power or coercion and then there are rape which requires the need for active consent. Just because of how one perceives it differently should not become an impediment in law fulfilling its purpose of criminating the offender and avoid any wrongful conviction simultaneously. Which can only be achieved due to a clear definition of what is what. It is whole heatedly required, to my understanding before we move to the comparative analysis, I can term rape by a temporary collective definition that it is broadly sexual intercourse between people which is forceful in nature and lacks consent. This is a very watered-down definition as we will talk about how rape is defined in different jurisdiction in this paper, as rape is universal and hence there is a need to understand the universal approach for laws which will be against rape i.
e Anti-Rape Laws in different jurisdiction. So, we can successfully answer our research question on how anti rape laws have developed in urban western society like the United States than a developing nation like India, this can be achieved in this paper by categorising our paper into III parts namely part A: Introduction and History of Anti - Rape Laws in Both Countries, part B: Comparative analysis of Anti Rape Laws and part C: Conclusion History of Anti-Rape Laws To understand how the law of the land developed and how the western ideology in terms of law punishing such crimes were developed and the Indian law developed we need to look at the brief history of development of the said laws in India and US respectively.
US and Anti-Rape Laws As the common law developed in the UK so did it in the areas of US and Canada and that is one of the reasons that most of the developed countries have commonalities regarding rape laws and their punishment many of which are given meaning by international communities like the UN or the European conventions. Rape in the western society has developed with the view of how they portray their women in their society, as for how progressive they seem they weren’t. As the earliest written code of law regarding rape comes from the Code of Hammurabi1 which was written in 1780 BC.
The original understanding of rape and its punishment comes from the fact that this code or even in the history of the human evolution we have seen women as property and rape as property crime2, in this code specifically the women who is raped is treated as property where the rapist must pay compensation to the father whose property the rapist has raped i. e the daughter. As with the development of mind so did the idea of rape which cannot be seen narrowly as only a sexual act, with the emergence of sociology as a discipline the western world started looking beyond the sexed bodies and the society started to view rape as crime against the society rather than a property crime and with the help of psychology we also understood the mental footprint which is left behind in such crimes and how a victim tackles it hence a theme for laws to prevent such crime began.
With women as equal abled citizen of the nation, the theory that emerged was that rape was being used as weapon by the patriarchy to oppress women and for the men to justify their control over women as they were and still are viewed as objects. In the 1900s Anti Rape Movement Emerged, after asking for equal voting rights in the second wave of the feminism moment, rape became the central theme of their movement and the demands for strong antirape laws emerged. As United States is a coming together federation where the states come together to form a federation, that is why the development of rape laws and consent have been differently paced in all 50 states. In 1970 rules regarding marital rape (rape during marriage)
1 Eichelberger E and others, “Men Defining Rape
A History” (Mother Jones, August 27, 2012) https://www. motherjones. com/politics/2012/08/men-defining-rape-history/ 2 LeGrand, Camille E. “Rape and Rape Laws: Sexism in Society and Law. ” California Law Review 61, no. 3 (1973): 919–41. https://doi. org/10. 2307/3479776. started gaining influence and by 1993 all 50 states declared martial rape as illegal3. In the 1975s the laws to eliminate stigmatisation of the victim and the unnecessary character assassination laws often termed as rape shield laws were included in the Federal Rules of Evidence rules 412, 413, 414, and 4154. Which significantly helped with the conviction as previously people could faulter the victim’s credibility by showing emphasis on past sexual history or bad character.
In the United State laws like the Violence Against Women Act (1994), and Michigan’s Criminal Sexual Assault law (1974), were created in response to the crime of rape5. In the US we can see the fragmented development of their law due to their system of governance as law regarding rape varies from state to state but the federal definition is within the federal law6 stating sexual assault, including rape, as any form of non-consensual sexual activity. As per the laws developed the legal reformers turned to its execution from legislation since most of the rapes committed were not reported similarly the lack of awareness about the conviction and reporting rates also became a point of concern towards the infrastructure. If we look at the present status, most of the developed countries have removed the term “rape” and has replaced the law with series of sexual offenses.
The severity of the sexual offense decides its punishment, in the US there are different degrees which are prescribed to the sexual offenses. There are four degrees on which such sexual offenses are judged with the first degree attracting a life imprisonment, second and third degree attracting a maximum of 15, fourth degree with 2 years of imprisonment7. India and Anti-Rape Laws Indian codified laws in general have been passed down by the western colonial rule, as most of the acts and statutes have resemblance or exact borrowing from the British. The Indian laws regarding rape emerged with the emergence of the Indian Penal Code of 1860.
Whatever the definition which was left by the colonizers was adopted by the Indian legal system and remined 3 “A Reflection on the History of Sexual Assault Laws in the United States - The Arkansas Journal of Social Change and Public Service - UA Little Rock” (The Arkansas Journal of Social Change and Public Service, April 16, 2018) https://ualr. edu/socialchange/2018/04/15/reflection-history-sexual-assault-laws-united-states/
4 Id
5 Carson, Catie (2007). A Comparison of Sexual Assault in the U.S., Canada, and England. Undergraduate Review, 3, 57-69: https://vc.bridgew.edu/undergrad_rev/vol3/iss1/11
6 18 U.S.C. § 2241
7 Ijalr, “Rape Laws
India and Abroad - Ijalr” (ijalr, October 19, 2020) https://ijalr. in/rape-laws-india-andabroad/ unchanged for almost more than a decade, as the Indian legal system evolved on case-to-case basis and started with interpretation of law in their own language of the state is when acts with only limited applicability or redundant laws came into notice. The Indian judiciary due to this avoided the claims for such definition regarding laws until several rape incidents which shook the society made the wheels of judiciary turn, the first and foremost rape case which is considered a landmark judgment in the Indian judiciary was of Mathura rape case8 in 1972 where a girl named Mathura was raped in police custody and consent in this was acquired through a position of power and coercion, the Supreme Court decided that the absence of struggle marks would mean consent.
After this blunder the concept of custodial rape was added in the statues. The crime defined by the Indian judiciary is gender specific and that it is mentioned in section 375 of the IPC 1860, the developments kept on coming with each and every case for example the Bhanwari devi case9. Which became the defining moment for laws regarding sexual harassment at the workplace and guidelines by the supreme court were also issued which came to be known as the Vishaka guidelines. The law started incorporating the plight of the victim and how to protect the privacy of the victim, laws were amended like the CrPC for not disclosing the identity of the victim10. and in the Indian Evidence Act provision as well were added for not questioning the credibility of the victim and stating the previous conduct or bad character as irrelevant under 114A11.
The brutal gang rape in Delhi in 2012 also known as the ‘Nirbhaya Rape Case’ helped amend the Juvenile Justice Act in 2013 and added the provision of treating minors as adult in certain severe cases and it talked about building for fast track courts for rape case, need to compensate the rape victim and death penalty in case of repeat offenders or in the case where the victim has died or is an a vegetative state12. In the modern state of the Indian judiciary and the rise of rights and safety for women is one of the most important tasks of the Indian state, crimes like voyeurism and stalking have been added in the criminality sphere so that clarity within sexual offenses and their degree of punishment can be reached.
The idea of death penalty has remined a topic of conversation and so has the idea of marital rape which has not been recognised by Indian law yet and is not considered illegal, another modern development in terms of rape against minors and how POCSO Act13 would deal with death penalty came during 2018 with the Asifa
8 Tuka Ram And Anr vs State Of Maharashtra 1979 AIR 185
9 (Vishaka & Ors vs State Of Rajasthan & Ors Air 1997 Sc 3011
10 Indian Penal Code, Section 228-A 1860
11 Indian Evidence Act 1872
12 Aruna Ramchandra Shanbaug vs Union Of India & Ors (WRIT PETITION (CRIMINAL) NO. 115 OF 2009)
13 The Protection of Children from Sexual Offences Act, 2012
Bano14 case also known as “Kathua rape case”. As we can see the brief history of the two countries and their recent developments as latest as 2020, we know that this field of judiciary is trying to understand and interpret the definitions of consent and how consent which is the primary factor. Part B Analysis of Anti-Rape Laws As we see that the development of both India and US have been different in sense of how it was paced, with the origins of both countries as common law system we come back to our research question that how development of anti-rape law is different in developing and developed countries.
The two factors broadly for why is as follows – Development of Consent and Society The development of consent in the United States has mostly been westernised in nature, and most of western policy of consent developed of the backbone of what was defined by Hobbes, John Locke and Jean-Jacques Rousseau, where Hobbes mentioned that about the power dynamic between a parent and an infant to describe that the exercise of power itself is a sufficient argument to assume control15. John Locke presented that consent is based on social contract and voluntary consent and Rousseau justified the idea of why male are generally the aggressors in such cases and that women’s consent is implied after the feminist waves the idea shifted on refining the consent and what it means today in the US and has characters like free agreement, absence of verbal or physical resistance does not imply consent16 .
On this the development of many western theory has come about in the present day. In India the development of consent has been on case-to-case basis as we saw, the influence of colonial understanding behind the meaning of consent is visible and at present its meaning is defined under Section 9017. The Criminal Law (Amendment)Act 2013 talked about how absences of resistance are not considered consent and it should be an unequivocal agreement. As we can see the status of current understanding of consent has been similar, yet the difference in rape
14 Mohd. Akhtar vs The State Of Jammu And Kashmir Writ Petition (Criminal) No.85/2018
15 Pollock, Frederick. “Hobbes and Locke
The Social Contract in English Political Philosophy.” Journal of the Society of Comparative Legislation 9, no. 1 (1908): 107–12. http://www.jstor.org/stable/752187.
16 10 USC § 920(g)(7)
17 Indian Penal Code 1860
crimes in India and US is vast. This is because of weak implementation of the legal system and the idea of weak return from the judiciary. As most of the rape are not registered in police due to several reason like family embarrassment, media trial, social stigma, and harassment by authorities. This is a problem which is faced by India and shows that mere adoption of progressive legal meanings and statues do not always result in the goals they were meant to achieve, with slow paced development and the fact that we got our independence late in comparison to the US, India is a developing nation but it lacks infrastructure to support its visions, as we can see clearly that how the anti-rape laws have developed in India by support of individual incident which pushed the society to take stringent steps.
Death penalty is not the answer because in those cases it does not deter crimes and it additionally places a definite murder of the victim if rape occurs, the reason US has better implementation is because of how their society has developed and how the society collectively sees acts of rape against women and violence against women, such acts which are incorporated which makes meaning of sexual offenses broader like for example the US rape law is gender neutral law in nature and in India rape is an offense which can only happen against women. The discouragement to consider rape from a broader point of view is one of the problems as rape can happen to trans and male members of the society as well further it does not do well for their status in society as they are always seen as the victims of crimes, objects to protect or overpower18.
The status of women in developed countries have been always better than the status of women in developing countries because in the case of US we can see that due to their early and active participation in the labour work force during the World Wars and individualising of the citizen which demand equal pay resulted in improving their overall status where in the case of India such progress was slow due to traditional barriers and confinement of what a women can or cannot do, if we compare the punishment in India it is in fact has stronger punishment regarding rape and sexual offenses than the US, however the statistics explain the opposite effect which definitely points us towards other flaws hence the need for better enforcement and development of society is one of things lacking for India in their development of effective anti-rape laws.
18 “Consent Matters: A Comparative Study of Rape Laws in India, UK and Canada - International Journal of Law Management & Humanities” (International Journal of Law Management & Humanities) https://www. ijlmh. com/paper/consent-matters-a-comparative-study-of-rape-laws-in-india-uk-and-canada/ Cultural Development We have talked about the status of women in both the society and how consent has developed after recognising that implementation is one of the factors responsible for ineffectiveness of laws, here we will talk about how the Indian judiciary has failed to encompass a rape law regarding rape of wife by the husband which is very common in India. This is because of how the two countries understood the idea of implied consent. The Indian idea of man and women’s union being pure of nature is something which is very traditional and now a barrier.
The difference of culture can be one of the reasons why the Indian judiciary has not included marital rape what is shocking to see that under S. 375 this exception has been specifically mentioned. This also means marital rape of a minor will not be considered a rape. I believe it is due to the cultural view of women which restricts India, the image that women have to be “sanskari” which involves serving their husband. This traditional view which has been understood very literally by the society is what limits the role of women in the society. The law is also in fault in not fully understanding that rape can happen in a marriage and the need for active consent19.
Where the marriage is considered a license to rape, this exemption was present in most of the common laws countries but have been abolished as they believe an active consent is required, India has made efforts in criminalising marital rape like in the 42nd Law Commission report however it was unable to do so as the legislation and even the judiciary consider it as “it is not the time” for India. The cultural stigma however regarding the victim and how they are viewed is still similar so we cannot say that the ills of rape have been culturally washed, the idea of victim blaming, and false accusation are present in many western countries as well.
Part C Conclusion As we can see that the steps taken by both legal systems were similar and even the condition they arose in were identical, India however did get independence late which resulted in lack of development of the society and residue of old colonial laws which in turn became traditional notions affecting the power dynamic between men and women, India being a patriarchal society also did not help in the advancement of anti-rape law and the development of consent. The contents of law being similar between India and US and still the two nations reach a very
19 Harris, Lucy Reed. “Towards a Consent Standard in the Law of Rape.” The University of Chicago Law
Review 43, no. 3 (1976): 613–45. https://doi.org/10.2307/1599234. different position in rape statistics, the main difference was the infrastructure to support these progressive laws which were missing in the developing country of India was of two factors which I considered to prove my research question. Development of Indian law was hampered due to cultural and social barriers which affect enforcement of these laws in the modern day.
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