Death by rape–Part 1

IN India, rape is still a gendered offence. However, it has shifted away from a purely penial penetration offence. A man is now said to rape a woman when he has sexual intercourse with her without her consent or against her will.

Post-Nirbhaya, this definition was changed to include penetration not only by the penis but also by digit or object by a man not only into a woman's vagina and also into her mouth and anus without her consent or against her will.

These changes were obviously made due to the facts in the Nirbhaya case, where the most gross form of brutality was unleashed by a gang against the woman who has come to be known as Nirbhaya by inserting iron rods into her vagina. Surely the name given to her is strange, to say the least, as who in her position would be free from fear?

It has always been an offence that elicits moral outrage but the outrage focused mainly on the morality or immorality of the woman who “allowed herself to be raped”. She has always been told that she “asked for it”, that she had consented to have sex with the man, and that she was lying to cover up her tracks, as there were no marks of resistance on her body.

The “two-finger test” has always been used to check her virginity, and if she was not a virgin, there was no conviction for rape for reasons we need not go into at this stage, except to say that misogyny, and not the law, governed the outcome of the case. But all this can be done and said to the living woman who survives rape.

Rape was seen as an interpersonal act, an act of lust, an act of passion by a man who sexually abused a woman by raping her. In India, a man engaging in non-consensual sexual acts with his wife is not considered to be raping her. Sexual acts without consent are considered “unlawful” only if the woman is not his wife.

The marital rape exception remains in place up to this day, and at least one judge of the Delhi High Court has upheld the validity of the Section on the ground that to invalidate it would be to destroy the “sanctity of marriage”.

Or, as one judge said in the context of restitution of conjugal rights, “To introduce constitutional law within family law is like introducing a bull in a china shop.”