Response Paper to 'Reconceptualising Rape in Law Reform'
- Shubhangi Agarwalla*
‘What are other women really thinking, feeling, experiencing, when they slip away from the gaze and culture of men?’
-Naomi Wolf. 
The question Shraddha Chaudhary’s article, ‘Reconceptualising Rape in Law Reform’, grapples with is one that requires wide debate. Chaudhary offers a stringent critique of rape law as it currently stands. Her core claim is that the offence of rape should be widened to include non-penetrative acts. This, Chaudhary argues, will allow the focus of the offence to shift from the male perspective that is preoccupied with penetration to one that characterises the offence as a violation of sexual autonomy and bodily integrity. Chaudhary further argues that such a fixation on penetration is detrimental to not only women but also the male victims of rape.
Preoccupation with limiting the definition to penetration can be linked to societal notions of what makes women valuable. Women were viewed as property; first, of the father, and after marriage, of the husband. Thus, rape which criminalised the theft of a woman’s virginity was seen as a serious crime whereas other forms of sexual violence were dismissed as being of a less serious nature. Removing the focus on penetration forces one to re-evaluate what an act of violence or an assault is. An alternative to such a property-based construction is to characterise rape as a violation of the victim’s bodily integrity and sexual autonomy. This acquires interesting dimensions in a patriarchy, where the omnipresent threat of male violence seems to affect every decision women take and every reaction they have, often leading to different perceptions of the same stimulus. For example, ‘normal’ behaviour that men see as amorous may be experienced by women as intimidating or even threatening. Moreover, this shift in characterisation also holds legal significance since continuous reliance on a property-based approach creates a distinction between an honourable victim of rape, whose testimony can be relied upon, and a dishonourable one, who is treated with suspicion.
While I find merit in Chaudhary’s argument that restricting the language of rape to penetration entails discounting the experiences of sexual harassment which might be just as violative to the victim’s sexual autonomy and bodily integrity, I have some concerns in the conclusion she comes to and solution she presents, for the reasons that I have outlined below.
II. Fair Labelling
The definition of rape has remained affixed to the idea that penetrative acts are more violative. Chaudhary rightfully takes issue with this because it requires women’s experiences to be defined from a male point of view.
This notwithstanding, I find myself disagreeing with Chaudhary’s solution of widening the definition of rape because criminal law has an expressive function. This means that not only does the law establish rules, but it also changes the norms of a society. In essence, subsuming the definition of rape into a larger definition of sexual assault or widening it to include non-penetrative acts would risk undermining the social meaning of norms given by the law. This violates the principle of ‘fair labelling’, according to which the label given to an offence must accurately reflect the ‘nature and magnitude’ of the wrongdoing it prohibits. This resonates with the Canadian Supreme Court’s decision in R v. Martineau, that there should be a clear establishment of the proportionality between stigma attached to the offence and moral blameworthiness of the offender. In other words, fair labelling means that the label placed on the offender by the courts must be a fair description in the eye of the public and not just a lawyer’s, of what was done.
The rationale behind this is three-fold; first, at the sentencing stage, the label condemns the accused in a language that the public comprehends, secondly, most people’s knowledge of the offence is limited to the name and the punishment attached to it so the fairness of the label is correlated to the fairness of the warning given to the public. For example, the offence of culpable homicide is essentially different from the offence of murder and conflating the two under one offence would offend the principles of justice. Thirdly, it helps secure consistent prosecutions. Having a broadly labelled offence, greatly increases judicial discretion at the sentencing stage whereas a specific label helps in consistent prosecution. An increase in judicial discretion is harmful when affected by individual biases rather than legitimate factors.
The risk that arises when the offence is ambiguous in the minds of the public was revealed soon after the 2013 Criminal Law Amendment, which widened the definition of rape. Tarun Tejpal, the former editor of Tehelka, was accused of digitally penetrating a co-worker without her consent. This fell within the re-defined offence of rape, and also satisfied the requirement of aggravated rape since the accused was a “person in position of control or dominance”, which resulted in a mandatory minimum sentence of 10 years. However, the complainant herself struggled with the taxonomy of being referred to as a rape victim as she saw the offence as a case of sexual harassment in the workplace. Consequently, it is possible that the survivor in this case would not be satisfied with the Court’s decision. Furthermore, over a year after the 2013 Amendment, the Bangalore Mirror reported a case in which the police officer reduced the charges against the accused to molestation as the offence did not involve penile penetration and the new definition contradicted his understanding of the offence. This is indicative of a huge gap between the social understanding and legal definition of the offence. The fact that this ambiguity was caused by widening the provision to all penetrative acts, without even encroaching upon the question of non-penetrative acts, merits attention.
III. Risk of pathologising victims
An attempt to desexualise rape is motivated by the hope that this will also bring about a change in pervasive social norms regarding how men and women should interact, which is a natural outgrowth of a culture where sexual objectification is rife. To paraphrase Cohen and Backhouse, sexual penetration as an expression of hostility is only possible in a culture that treats women as sexual objects. However, for someone who has internalised gender norms, it is difficult to conceptualise ordinary sexual relations in terms of violence. For them, the offence of rape is problematic because it corrupts an intimate act into an expression of contempt or hate. The psychological harm of rape stems from the fact that they were forced to perform a highly intimate act. Desexualising rape is absurd to them because rape’s sexual nature is intrinsic to why they felt violated. In this regard, Cohen and Backhouse wrote that, “Rape victims perceive rape as an act that is qualitatively different from other forms of assault... As one rape victim said, ‘For me, the trauma was the total humiliation of not being treated as a person. There’s something worse about rape than just being beaten.’”
Furthermore, many rape victims struggle with their sexuality, following the rape. Recent feminist positions emphasise that a full account of a rape's harm must include both- its denial of victim’s bodily integrity and its intimate, sexual nature. Cahill, for example, says that, “Rape must be understood fundamentally … as an affront to the embodied subject …. a sexually specific act that destroys (if only temporarily) the intersubjective, embodied agency and therefore personhood of a woman.”
Irrespective of the correctness of this approach, by ignoring the experience of those who are insufficiently 'enlightened' to appreciate that their experience of the attack as sexual has been socially constructed, one risks pathologising victims of rape. One must not forget the political and social meaning of penetration in patriarchies where rape is associated with an innate degree of degradation, unlike other offences. To deny the sexual character of rape would amount to rejecting the lived reality of such victims.
IV. The failure of a similar model in Canada
Chaudhary refers to the Canadian model to support her arguments. In Canada, a hybrid offence of sexual assault was created after the reforms in 1983. This was to show that penetrative acts were not fundamentally different from non-penetrative acts.
However, the Canadian model is not without its shortcomings. In fact, it drastically failed to produce the desired result of ending the rape culture in Canada. Despite the claim that removal of the term “rape” from the Criminal Code would encourage victims to report, rates of reporting have not increased. In a study conducted by Perreault & Brennan in 2010, it was shown that nine out of ten sexual assaults were not being reported to the police. More than three-fourths of the victims who did not report the crime felt that it was, among other reasons, not important enough to take the time to report. Given the high “unfounding” rates, it is evident that the stigma still exists despite the removal of the term “rape”. Instead, it has been argued elsewhere that, this has led to the opposite result as the absence of “rape” could have led the victims to believe that their experience of sexual violence was not serious.
Moreover, while the minimum punishment for the hybrid offence of sexual assault was as low as 90 days, the lawmakers recognised a need to create a gradation of punishment where penetrative acts would be given more serious punishments, which was to be decided at the sentencing stage by the judiciary. In other words, the judiciary had been given a huge degree of discretion. Thus, what Chaudhary neglects in her article is the fact that, in essence, Canada had just delayed the focus on penetration plays in rape cases to the sentencing stage. The consequence of such discretion at the sentencing stage was that there were variations in judgements across and within the ten different provinces of Canada. Limits are usually placed on judicial discretion. For example, judges are confined within the limits of maximum and minimum sentencing. However, this limitation is only effective when there is a clearly defined offence, and not when the offence is ambiguously defined, as such a broad definition of rape would undoubtedly be, as pointed out in the previous section. This is reflective of the Canadian experience where, given the lack of guidelines on sentencing, an accused was given minimum punishment for penetration in one case whereas in another he was given maximum punishment for groping. This is because an individual judge’s perception of the moral blameworthiness of the crime dictated the level of punishment. Allowing this would be inconsistent with the principle of fair sentencing, which is indispensable to the objective of the legal system.
This is especially telling in India, given that judges rarely explain why a particular sentence was accorded in rape cases or what theory of punishment guided such a decision. Instances abound of judges relying on their own prejudices to pass sentences. For example, there are cases where courts have considered past sexual experience or absence of injuries or old age of the victim as a mitigating factor. Judges are not immune to stereotypes and such a change would simply shift the stereotyping done during guilt determination to the sentencing stage.
Moreover, considering such an approach has hardly achieved the goal it had hoped to, would it be prudent for India to do the same considering it would also contradict existing laws, namely S. 7 of Protection of Children from Sexual Offences Act, 2012 [“POCSO”] wherein, sexual assault is limited to non-penetration? Thus, if rape were substituted with sexual assault in the IPC, it would contradict the meaning attached to sexual assault in the POCSO.
I have argued that rape must be retained as a distinct offence, punishing all non-consensual penetrative acts within the broad offence of sexual assault. A similar approach was taken by the South African Sexual Offences Act. The arguments made by the Law Reform Commission of South Africa included the risk of reducing the gravity of the offence and securing apt and consistent sentences. Inspired by the example set by South Africa, the Justice Varma Committee report, which had been constituted in the aftermath of the December 16th gang rape case to review sexual offence laws, also recommended that rape should be kept as a distinct offence but there should be a new offence of sexual assault replacing S. 354 and S. 509 of the Indian Penal code. It further noted that ‘sexual assault’ must include “all forms of non-consensual non-penetrative touching of a sexual nature.”
This might be useful from the point of view of both the victim and the accused. From the victim’s perspective, the class of victims presently ignored in the legal system will have adequate legal redress. With the shadow of the ‘outraging modesty’ and ‘intent to assault modesty’ clauses removed, the new offence of sexual assault can be judged on its own merits. This recognises the various kind of violations from a female perspective and, hence, it doesn’t disparage the victim’s experience. From the accused’s perspective, a distinct offence promises more accuracy and consistency in determining the nature of the crime and the level of culpability. Crucially, it will secure more faith in the criminal justice procedure from the perspective of both these stakeholders.
Lastly, the State should support all kinds of activities and social institutions that aim at enhancing the public perception of sexual assault. These would include the setting up of sexual assault centres, instituting sexual harassment programmes, and implementing programmes that aim at reducing violence against women.
*Shubhangi Agarwalla is pursuing B.A., LL.B (Hons.) at the National Law University, Delhi, India.
 Naomi Wolf, How Images of Beauty are Used Against Women, at 76 (1991).
 Jennifer Temkin, Rape and the Legal Process, 57 (1987).
 UN Doc. E/CN.4/Sub.2/1998/13, 22 June 1998, para. 24.
 Leslie Kerns, A Feminist Perspective: Why Feminists Should Give the Reasonable Woman Standard Another Chance, 10(2) Colum. J. Gender & L., 195, at 215 (2001).
 Kim Lane Scheppele, The Reasonable Woman 1(4) Responsive Community, Rts., & Responsibilities, 36-47(1991).
 At the outset I would like to clarify that I will only attempt to respond to her arguments on widening the offence to include non-penetrative acts and not her proposal to make the law gender neutral as I believe that that will require a more nuanced deliberation that goes beyond the scope of this paper.
 Herbert Lionel & Adolphus Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 236 (2008).
 R v. Martineau  2 SCR 633.
 Michael Plaxton, Implied Consent and Sexual Assault: Intimate Relationships, Autonomy and Voice (2015).
 Mrinal Satish, Discretion Discrimination and the Rule of Law, at 190 (2016).
 Mihira Sood, Tehelka case: it is rape, call it that, NDTV (Dec. 2, 2013), http://www.ndtv.com/india-news/tehelka-case-it-is-rape-call-it-that-543050.
 Indian Penal Code, § 375.
 Indian Penal Code, §376 (2)(k).
 Tehelka case: What Tejpal did to me is legally rape, she says in this statement, NDTV (Nov. 29, 2013), https://www.ndtv.com/india-news/tehelka-case-what-tejpal-did-to-me-is-legally-rape-she-says-in-this-statement-542788.
 Chaitanya Swamy, Frazer Town’s Friday horror: 22-year-old girl is abducted, sexually assaulted in car
Bangalore Mirror (July 15, 2014) <http://bangaloremirror.indiatimes.com/bangalore/cover-story/frazer-town-cox-town-rape-sexual-assault-car-police-bangalore-crime-FIR-refusal-to-file-complaint/heroesshow/38385007.cms>.
 Michael Plaxton, Should we reintroduce “rape”?, Huffington Post (Jan. 24, 2014) <www.huffingtonpost.ca/michael-plaxton/rob-anders-rape-bill_b_4661698.html>.
 Leah Cohen & Connie Backhouse, Desexualizing rape: Dissenting view on the proposed rape amendments, (Canadian Woman Studies 1980) quoted in Plaxton, id.
 Cahill, Rethinking Rape, at 13 (2001).
 Canadian Criminal Code, § 271.
 Markin, K., How Canada's sex-assault laws violate rape victims The Globe and Mail <https://beta.theglobeandmail.com/news/national/how-canadas-sex-assault-laws-violate-rape-victims/article14705289/?ref=http://www.theglobeandmail.com&page=all> last visited on 9th March 2018.
 Sexual assault in Canada: what do we know? Sexual Assault Services of Saskatchewan <http://sassk.ca/about-sexual-assault/sexual-assault-in-canada> last visited on 9th March 2018.
 Samuel Perreault and Shannon Brennan, Criminal victimization in Canada, 2009 30 Juristat (2010) <http://www.statcan.gc.ca/pub/85-002-x/2010002/article/11340-eng.htm>.
 Samuel Perreault, Reasons for not reporting victimization incidents to the police, by type of offence, Statistics Canada (2014) <http://www.statcan.gc.ca/pub/85-002-x/2015001/article/14241/tbl/tbl10-eng.htm>.
 Supra note 23.
 Renate Mohr, Sexual Assault Sentencing: Leaving Justice to Individual Conscience, in Confronting Sexual Assault: A Decade of Legal and Social Change, 157, at 192 (Julian Roberts and Renate Mohr eds., 1994).
 Satish, supra note 14, at 65.
 Justice Varma Committee Report, Report of the Committee on Amendments to Criminal Law (New Delhi, Justice Verma (Retd) Committee, 2013) [JVC Report], Appendix 4 at 434.
 The Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007.
 SALRC, ‘Project 105: Sexual Offences, Discussion Paper 85: Sexual Offences – The Substantive Law’ (1999).
 supra note 32.
 JVC, Report, para 68.
 JVC, Report, para 69.