BIAS CUT 6 The Crest Edition THE VIRTUE TRAP THE TIMES OF Virginity and sentencing

A woman who is sexually active, before or outside of raped married women. Further, courts tend to impose lower sentences when a victim who was unmarried when the marriage, is not considered to have suffered offence was committed, gets married during the trial. Since the rape did not too much harm in a rape; and the accused gets impact the victim’s ability to get married, the harm caused by the offence is off with a lighter sentence discounted. An egregious example of this approach is the Supreme Court’s decision in Baldev Singh v. State of Punjab (2011), MRINAL another case that got a lot of media attention. One of the reasons that he horrific gang rape the Court gave for re- incident in has ducing the sentence in led to demands for this case was that the amending the law to victim was now mar- provide for more ried. Tstringent punishment for rape, including a call for DEATHLESS death penalty. Over the last few SHAME? days, there have been various The second stereotype debates about the advisability of that affects rape making such changes to the law. sentencing is the per- An issue that has not been ception that rape is a highlighted in these debates is the matter of shame for existing state of rape sentencing. the victim. The Any attempt at law reform needs Supreme Court has to include an examination of this in fact frequently issue. My analysis is based on my observed that a doctoral study at Yale Law School, woman experi- in which I examined all rape cases ences a “deep decided by all High Courts and the sense of death- Supreme Court over the last twenty less shame” as a five years. consequence of Section 376 of the Indian Penal being raped. Code (IPC) prescribes the punishment Combined with the for rape. For non-aggravated forms of notion that a woman rape, the minimum punishment is considers her chastity and seven years imprisonment, virginity to be invaluable, a myth has and the maximum is life developed that on being inflicted with imprisonment. The minimum this “shameful” act, a woman will neces- MRINAL SATISH is an punishment for aggravated sarily physically resist her attacker, Associate Professor at the rape (gang rape, rape of a girl when sexually assaulted. Such physi- National Law University, under the age of twelve, custodial cal resistance, it is believed, leads to Delhi rape) is ten years imprisonment, injuries on the woman’s body, and the maximum is life imprison- which then demonstrates that sex was ment as well. In both these circumstances, tencing or sentencing in other not consensual. Note, however, that the courts have the discretion to sentence crimes, are entirely different. law does not require the woman to resist below the prescribed minimum term of in which such evidence finds its the attack. The presence of injuries might imprisonment, if they provide “adequate A MATTER OF VIRTUE way into the trial. The crucial fact corroborate lack of consent, but the and special reasons” for so doing. The What makes rape sentencing different that the prosecution has to prove absence of injuries should not imply crucial question is: how do courts deter- from sentencing for other crimes? Unlike in rape cases is the lack of the consent. Although courts do not appear mine the appropriate sentence to be im- other offences, the crime of rape carries its woman’s consent to intercourse. to infer consent from absence of injuries, I posed on an offender? A basic understand- own baggage. Over the years, stereotypical Unlike laws of various other coun- found a marked decrease in sentences in ing of the trial process is essential here. and patriarchal notions have developed tries, Indian law does not require cases where no injuries were present on The Criminal Procedure Code (CrPC) with regard to women’s sexual behaviour. the prosecution to prove that the the woman’s body. divides the trial into two distinct phases — Most of these notions are based on the offender knew that the woman the guilt determination phase and the sen- assumption that the chastity and virginity had not consented, or intended LENIENCE WITH ACQUAINTANCE tencing phase. In the guilt determination of a woman are her most important to rape the woman. The woman’s test,” ostensibly to determine whether The third interesting finding of my study phase, the court either convicts or acquits “assets.” Popular notions consider rape as testimony that she had not penetration has occurred. This highly was that courts consider acquaintance the offender on the basis of evidence a fate worse than death since it robs consented to intercourse is sufficient. invasive procedure involves the doctor rape to be less traumatic than rape by a presented in this regard. If the offender is women of these “virtues” and casts a stig- In fact, SC has consistently held that inserting one, two, or more fingers into stranger. Offenders who were in a roman- convicted, then the sentencing phase ma over victims for the rest of their lives. conviction can be based solely on the the woman’s to determine the tic relationship with the women they raped begins. In this phase of the trial, the court A woman who has already “lost” her testimony of the woman. But, the court elasticity of the orifice. If the doctor is able got lower sentences, compared to their considers evidence and arguments on chastity and modesty by having sexual has to be satisfied that the woman’s to insert two or more fingers, it ostensibly counterparts who raped women they did factors relevant to the determination of relations before or outside of marriage, is testimony is reliable. It is here that indicates that the woman has had prior not know. In cases of where sentence. Ruling on the factors that a court not considered to have suffered too much stereotypes enter rape adjudication. intercourse. The rationale behind this the under-aged girl had consented to inter- should consider in deciding on sentence, harm; and the perpetrator is therefore not “test” is that if two fingers can pass course, courts consistently imposed lower the Supreme Court has held that the na- required to be punished too severely. In THE TWO-FINGER TEST ture of the offence; the presence of aggra- order to ensure that such stereotypical no- An important piece of evidence in rape vating and mitigating circumstances; the tions relating to the sexual behaviour and cases is the report of the medical examina- prior criminal record of the offender; his sexual mores of women are not considered tion of the rape victim. Medical and foren- The Supreme Court has, in a number of cases, noted how age, professional, social, and educational in rape trials, the Indian Evidence Act was sic evidence enables the prosecution to rape adversely affects the chances of a woman finding a background, amongst others are relevant. amended in 2003, prohibiting the defence show that penetration of the vulva by the suitable groom. In this context, the Court has even held Another important consideration is the from impeaching a rape victim’s testimony penis (a pre-requisite for the offence of theory of punishment that should be fol- on the basis of her past sexual history. rape) had in fact taken place. Doctors are that the marital status of the woman can be a relevant lowed — deterrence, rehabilitation, retri- Unfortunately, the amendment required to testify to this fact, as also the factor in rape sentencing bution, etc. Since the IPC does not provide © SHARRON WARD/DEMOTIX/CORBIS guidance to courts on any of these issues, through the vagina, a body of the size of sentences on the offenders, based on the except for prescribing maximum — and in an erect penis could have passed through understanding that the young woman had some cases, as in rape — minimum it at an earlier point in time. otherwise “contributed” to the offence. punishments, judges have the absolute Let me provide a concrete example of Law reform movements, as well as discretion to determine the sentence for how the stereotypes find their way into policy-makers have not paid much atten- each individual offender. Unlike some oth- the trial process through medical exami- tion to issues pertaining to stereotypes er countries, such as the US and England, nation. Assume that in examining an un- surrounding rape sentencing. For justifi- India does not have sentencing guidelines married rape victim, the doctor notes the able reasons, their focus has been on for judges to follow while sentencing. presence of old tears on her hymen. The steps to ensure higher convictions in rape These guidelines generally list factors doctor also notes that she was able to in- cases. In addition to these efforts, there is that the court should (and should not) sert two or more fingers into the vagina of need for reforms to rid rape sentencing of consider while sentencing. Their absence the victim. Although the doctor does not stereotypes. This would include: first, is one of the reasons for the rampant expressly opine that the woman was sexu- changing the nature of medical evidence disparity that exists in sentencing across ally active, this information is conveyed to collected in rape cases. Protocols for med- crimes, including rape, in India. In fact, the court by way of the medical report. My ical examination of rape victims should the Supreme Court has itself repeatedly study showed that in cases where the be modified, and corresponding changes acknowledged the existence of disparity in medical report indicated that the woman should be made to medical education its death penalty practice. It has observed had been sexually active before marriage, syllabi. The second reform required is the that sentencing has become “judge-cen- appears to have impacted only the guilt presence of body fluids and injuries, if any. lower sentences were imposed on the formulation of principles to be followed tric,” instead of being based on principles. determination phase of the trial, and not Note, however, that the law does not re- offenders who raped them. In contrast, in by judges while sentencing rape offend- The same critique applies equally to rape the sentencing phase. The site of stereo- quire ejaculation. The protocols followed cases where the offender had raped a ers. Factors that should not be considered sentencing. But, the causes for disparity in typing has merely shifted from the guilt by doctors in examining rape victims virgin, the sentence was relatively higher. in sentencing rape offenders (such as the rape sentencing, compared to capital sen- determination phase to the sentencing across India go much beyond determining Another factor related to virginity is the victim’s sexual mores) should be listed. phase of the trial, and stereotypes have whether penetration had occurred. They perceived loss experienced by an unmar- Currently, a large number of offenders an adverse impact on rape sentencing. continue to make assessments of the ried victim, in terms of her marriageabili- whose victims do not adhere to the In cases where the woman’s behaviour woman’s sexual history, and play a major ty. The Supreme Court has in a number of stereotypical construct of a rape victim What makes rape sentencing different from does not adhere to stereotypical role in advancing stereotypical notions cases noted how rape adversely affects the get lower sentences. Ensuring principled sentencing for other crimes? Unlike other constructs, the men who raped them end relating to women’s sexual mores, by pro- chances of a woman finding a suitable sentencing in tune with our constitution- up getting lower sentences. viding a scientific veneer to the process. groom. In this context, the Court has even al values is a better guarantee for justice offences, the crime of rape carries its own But, if the law prohibits past sexual This process includes the examination of held that the marital status of the woman to rape victims, rather than legislative baggage. Over the years, stereotypical and history from being considered, how does the woman’s hymen and the distensibility can be a relevant factor in rape sentencing. steps providing for , it continue to impact rape sentencing? of her vagina. Whether the hymen is torn, It is not surprising then that offenders who chemical castration and the like.  patriarchal notions have developed with regard The answer is the nature of evidence and if so, if such tears are old or new are raped unmarried (and virginal) women got This anlaysis first appeared on the to women's sexual behaviour required to prove rape, and the manner noted. Doctors conduct the “two-finger higher sentences in contrast to men who blog ‘Law and Other Things’