- Karthik Rai*
Introduction
In August 2019, a student complained of rape against the Director, ex-Cabinet Minister Chinmayanand, of the institution she studied in, who facilitated her college admission process. She stated that, after being blackmailed, she was continually raped by Chinmayanand. [1] However, the Special Investigation Team [‘SIT’] charged him under S. 376C of the Indian Penal Code [‘IPC’], instead of S. 376. He was, therefore, charged under the section dealing with sexual intercourse by a person in authority, the offence consequently ‘not amounting to rape.’ The SIT defended its actions, claiming that the charge under S. 376C would be easier to prove in court for the victim. However, one thing was ignored: the fact that there is no choice but to unwillingly consent to intercourse, due to power imbalances being carried onto sexual relations. This, in common terms, is called sex by abuse of authority (‘SAA’).
SAA is a common phenomenon in India and is underreported, and unfairly perceived as not constituting rape. Therefore, through this paper, the author argues that S. 376C of the IPC is a vaguely-worded provision, with a theoretical backing that reinforces rape myths and disadvantages affected women. First, I shall theoretically describe the offence of SAA. Next, I shall examine the fault-lines in S. 376C. This is important to understand how S. 376C can be unfairly used by institutions against the victim. Lastly, I provide suggestions to modify S. 376C to tackle the problem of SAA.
I. S. 376C: What it Seeks to Criminalize, Jurisprudence and Statutory Conundrums
S. 376C states that anyone in a “fiduciary relationship”, inter alia, will be criminally liable if they ‘abuse’ the trust reposed in them to “induce or seduce” women under their influence, to have sex with them.[2] The latter, and controversial part of the Section, states that SAA will “not” constitute “rape”. Moreover, the minimum punishment of 5 years of rigorous imprisonment for an offence under S. 376C is also lower than rape, which gets punished for a minimum of seven years.[3]
Before delving into specifically examining the cases under, and relating to the interpretation of S. 376C, it becomes pertinent to have a brief understanding of what S.376C seeks to criminalize – that is, the offence of SAA.
A. Sex by Abuse of Authority: What Does It Entail?
Catharine MacKinnon states how rape expresses social inequalities motivated by hierarchies.[4] Nowhere could the hierarchies be better pronounced than in fiduciary relationships, with significant trust and respect placed in the influencing figure. Thus, the fiduciary has to act in the best interests of the weaker party, who is emotionally vulnerable.[5] Unfortunately, this gives leeway to the authority to extort sex from that subordinate, through indirect threats like destroying the employee’s career,[6] failing a student,[7] or even manipulating the patient.
In SAA, power equations are expressed through ‘illegitimate pressures’ to compel the decisions of the impuissant woman.[8] The subordinate knows of the enormous influence the fiduciary exercises on her, and that refusing his offer is extremely costly.[9] It warps her perspective and stupefies her.[10] Even if she initially refuses, which occurs in most cases, the superior further coerces her, and with no practical agency, she reluctantly gives in to the fear of retaliation.[11] Such sexual acts are often as painful as rape,[12] violating sexual autonomy. It psychologically impacts her, shattering her dignity.[13] Thus, the Verma Committee Report introduced S. 376C to address SAA.[14] In light of this theoretical contextualization of S. 376C, the next section describes cases where SAA was examined.
B. Examining the Cases and the Contradictions
In Maltya Gavit v. State of Maharashtra,[15] the prosecutrix, a tribal student residing in a hostel,[16] was repeatedly raped by the school’s rector. He forcibly removed her clothing and committed sexual intercourse on her.[17] Despite her verbal resistance, she was silenced by his abuse of authority.[18] He did this on ‘four’ occasions, even getting a foetus aborted on one occasion.[19] The High Court declared that the consent, though obtained, was vitiated due to his undue influence, and would be of no avail.[20] However, the Court, in a complete non-sequitur, stated that this would not constitute rape, charging him under S. 376C,[21] ignoring the lack of an “unequivocal voluntary agreement” to have sexual intercourse.[22]
In Kamalanantha And Ors. v. State of Tamil Nadu,[23] a spiritual guru repeatedly raped his disciples for several months, in spite of their resistance, betraying the fatherly faith imposed on him by the victims.[24] The court observed that the said consent had been obtained by the abuse of authority. This was because he had conveyed to his victims that they were under his dominion, with no place to go if he abandoned them.[25] He was, therefore, charged for rape by a person-in-authority under S. 376(2)(c).
Both cases evidence a refusal to engage in sex by the vulnerable party, followed by a callous abuse of authority, and concluding with the unfortunate and involuntary submission to sexual intercourse. Yet, what one case treated as rape, the other did not. Even in the Chinmayanand fiasco, the complainant reported forcible rape for over a year, paralleling the previous cases.[26] However, the SIT charged him under a non-rape Section, S. 376C, while he should have been charged under S. 376(2)(f) for “rape” by a fiduciary. Thereafter, S. 114A of the Evidence Act would create a presumption of non-consent, which the accused had to rebut.[27] However, the police acted contrary to the Supreme Court’s directions of registering an FIR immediately, disclosing a cognizable offence (here, rape).[28] They filed a non-rape charge, wrongly re-transferring the burden of proving non-consent on the rape victim.
The afore-highlighted lack of clarity is due in part to S. 376C – first, no guidelines are available either in S. 376 or S. 376C to differentiate cases falling under each section. The Verma Report provides no direct reason for introducing S. 376C (S. 376A in the proposed amendment). Only normative expositions about how consent should entail the characteristics of ‘withholding’ and ‘revoking’ consent are provided.[29] The other significant cause of concern is the manner in which S. 376C is phrased. The phraseology seems to reinforce gender stereotypes and blurs the distinction between rape and SAA.
C. S. 376C’s Problematic Phraseology: A Theoretical Perspective
S. 375 defines rape as certain acts under “any” of seven “descriptions”, 2 of which are – “against her will” and “without her consent”. However, ‘both’ will and consent are ‘equally’ important elements to consensual sex.[30] This overlap is indicated by Explanation 2 to S.375, which states that consent is a “willingness” to perform intercourse.[31] Moreover, legislative intent has been that consent should be given “out of choice”.[32] This is supported by cases defining consent as involving “reason” and “deliberation”, with an “active will” and “voluntary participation’.[33] Thus, “consent” in the IPC refers to ‘volitional’ consent, the lack of which is grounds for a rape conviction, even if there was ‘apparent’ consent. For instance, the thirdly clause of S. 375 criminalizes sexual intercourse, where consent is obtained by extortion, as “rape”.[34]
S. 376C does not use the word “consent”, but words like “induce” or “seduce” indicate that S. 376C caters to situations wherein some form of consent was provided by the weaker party. This has led to S. 376C only requiring the defence to show that there was ‘apparent’ or ‘notional’ consent to avoid a rape conviction. Yet, in rape cases, ‘consent’ requires ‘reason’ and ‘deliberation’. Having separated ‘consenting’ from ‘wanting’, even if the victim unwillingly agreed to the intercourse, merely to prevent the fiduciary from sabotaging her life/career by using his authority, it will not be viewed as rape. Thus, by placing greater importance on ‘apparent’ consent over willingness, S. 376C provides an avenue for fiduciary-rapists to exploit their authority to solicit non-consensual sex.
S. 376C also perpetuates rape myths. Since SAA falls outside usually-assumed notions of rape involving physical force, it is considered consensual.[35] ‘Frozen fright’ responses, leading to passivity, are common during rape.[36] However, women’s lack of initiative in forcefully resisting the rapist is still considered sufficient consent for applying S. 376C.[37] Courts even consider a ‘no’ without resistance as a ‘yes’. Similarly, courts unfortunately uphold the ‘yes’ given under pressure as valid.[38] Illusions about SAA not being grievous like ‘traditional rape’, fuelled by S. 376C’s wording, have overshadowed the fact that rape is an offence penalized not because it is gruesome, but because it violates a woman’s sexual autonomy.[39]
This distracts courts from the question of ‘why’ that apparent consent was given. S. 376C ignores the ‘constructive force’ the fiduciary uses to overwhelm the victim, and overlooks the fact that fiduciaries are cognizant of their actions, but proceed anyway.[40] Coupled with this is the problem of a lack of clear understanding of what “induce or seduce” would mean. Would veiled threats by fiduciaries amount to inducement?
Thus, in a S. 376C case like Chinmayanand’s, the fact that a woman submits to sex without complaining for a long time convinces the court that it is not rape.[41] The court overlooks allegations that he had helped her significantly with finances and exercised extensive authority over her.[42] Conversely, courts desire evidence of greater-than-normal force to convict the person for rape, imposing an insurmountable burden on the prosecutrix.[43]
It could be claimed that S. 376C’s rationale parallels negligent homicide, which attracts lesser punishment, because there was no intention, except for recklessness in committing the act. This analogy is problematic – it is relatively difficult to murder someone and make it ‘look’ like negligent homicide. With S. 376C, however, it is possible to rape someone with the intention penalized under S. 376, and yet escape liability for rape.
Since a S. 376C conviction is not for “rape”, the woman is viewed as having willed the intercourse, sometimes even considered extortionate for having filed the rape claim when she ‘consented’ to the act.[44]After the 2020 Amendment to the Medical Termination of Pregnancy Act (‘MTPA’), under normal circumstances, women have to terminate their pregnancy within twelve weeks (or twenty, given certain conditions). However, women who have been raped would have the option of terminating their pregnancy caused due to such rape within twenty-four weeks.[45]As the twenty-four-week period is applicable to rape victims,[46] women impregnated due to involuntary intercourse with fiduciaries are deprived of such succour due to S. 376C’s phraseology. They have to live with the trauma of an unrecognized rape, and with the burden of an unplanned child. Thus, S. 376C, though possibly well-intentioned, precipitates undesired outcomes. Modifying S.376C is necessary to prevent misuse of the penal law.
II. The Changes Proposed to S.376C
Many fiduciary relations, like those between a woman and her teacher/psychotherapist, involve high levels of ‘transference’. As complete trust placed in the fiduciary, the subordinate develops filial affections for the superior.[47] Thus, just like the limited presumption of non-consent applicable in rape cases, the Evidence Act could be amended to provide for a presumption of abuse-of-authority in S. 376C cases as well. This suggestion is premised on the assumption that consent in such cases is highly suspect owing to the ‘power dependency’ in the relationships in which SAA is claimed.[48] A person charged under S. 376C will have to disprove a presumption of abuse of authority and prove that the subordinate had freely exercised her choice, without being exploited by him.[49]
The victim’s passive disposition cannot provide grounds for assuming consent. Factors such as the kind of fiduciary relationship, who initiated the sexual act, if provable, could be relevant in deciding the charge and amount of punishment. For instance, an SAA case against a psychotherapist or a religious leader, associated with greater transference levels, should attract higher punishments than a case against employers. Admittedly, the presumption of abuse-of-authority could be rendered irrelevant by rape myths that pervade judicial reasoning. That is something that provisions cannot entirely solve; that requires sensitization about rape trauma.
That the woman pleads sexual abuse in a voluntary social relationship indicates how serious a case of sexual abuse it could be.[50] Moreover, SAA often parallels rape in terms of the psychological trauma of being assaulted by a fiduciary and being coerced to unwillingly submit to intercourse.[51] Statistically, there is reluctance to report instances of SAA owing to societal attitudes towards rape.[52] Many cases are wrongfully transferred from a ‘rape’ charge to a S. 376C charge, and many non-reported SAA cases therefore exist.[53] Thus, S. 376C only further discourages women from reporting SAA, because they could be viewed as complicit in the intercourse, and the act ‘not amounting to rape’.
Thus, I advocate for a radical proposal – to merge S. 376C with S. 376(2)(f), a strict-liability category of ‘rape by fiduciaries’, with the same ‘minimal’ penalty that rape entails. This will curb section-shopping, where incrimination is done under the section offering lesser punishment and proof requirements.
Admittedly, arguments for preserving the status quo exist, including that S. 376C protects men who obtained consent but are now being harassed by fake rape claims. Notwithstanding this, from a utilitarian viewpoint that the IPC embodies, the number of victims who will be protected from this modification would outweigh the number of false cases made under S. 376C. The more exceptions are made, the more is the scope for evading punishments deserving of an act like SAA. A hard-line stance might be the only course of action here.
A categorization of SAA as “rape” will also enable women to obtain the succour provided to rape victims under the MTPA apropos seeking an abortion. This solution is evidently pro-victim, and might disadvantage innocent fiduciaries in their defence against SAA claims. Even so, the problematic implications for SAA victims, psychologically and physically, on maintaining the status quo, make for a compelling utilitarian argument in favour of such reform. Moreover, both rape and SAA are equally abusive of women’s sexual autonomy. Irrespective of the extent of force used and methods employed, violation of sexual autonomy must constitute rape. SAA significantly parallels extortion-based rape, as the victim has to unwillingly choose between sexual autonomy and not having her future worsened by the fiduciary, though she is legally entitled to both.[54] Thus, having similar punishments for both seems justified.
Moreover, the intention of modifying S. 376C is to ensure that fiduciaries are deterred ‘completely’ from indulging in sexual acts which attract high suspicions of abuse. The new S. 376C would uphold the ‘Thin Ice’ principle – the fiduciary has a responsibility to desist from sexual relationships with his subordinate. This abstinence must continue, at least until the period of existence of such relationships gets over.[55] This would ensure that, in case the fiduciary wishes to proceed anyway, he will be cognizant of the risks involved and would ascertain the woman’s consent and willingness properly.[56] If he proceeds anyway, he must bear the consequences in the form of a charge of SAA against him.[57]
Conclusion
Through the paper, I detailed the implications SAA portends for its victims, and why S. 376C is problematic. Next, I portrayed the lack of clarity regarding S. 376C’s interpretation and identified the problems that S. 376C’s phraseology entails. The existing situation, evidenced by available statistics and the prevalent rape myths, unfairly militates against the victims. Moreover, utilitarian analysis suggests that the benefits of effective justice would outweigh occasional aberrations. Thus, I suggested modifications to ensure that SAA be treated as rape and punished on an equal footing. Employing the theory of deterrence to render S. 376C stricter, and upholding volitional consent as the standard of ascertaining SAA may help achieve greater societal consciousness about these morally-deplorable acts of sexual intercourse.
Additionally, the authorities involved at each stage of this offence, beginning from the police to the court, must be sensitised about the trauma adjoining rape. They must realize the inappositeness of rape myths. Ultimately, it is up to the parties involved to obtain the necessary volitional consent, indicating their intentions clearly. Then, arbitrary presumptions concerning consent could reduce. Combinedly, these factors would aid women placed in vulnerable sexual relationships to obtain justice, equality in treatment; and protect their sexual integrity.
*Karthik Rai is a III Year student at the National Law School of India University, Bangalore. He would like to thank the editors at the NLS Socio-Legal Review for their incisive comments on an earlier version of this essay.
[1] Sumeda, ‘Chinmayanand-UP law student saga explained’ (India Today, 27 September 2019) <https://www.indiatoday.in/india/story/chinmayanand-up-law-student-explainer-arrest-rape-case-shahjahanpur-1603750-2019-09-27> accessed 22 March 2020 [2] The Indian Penal Code 1860 (IPC 1860), s 376C. [3] ibid. [4] Catharine Mackinnon, Women's Lives, Men's Law (Belknap 2005) 241. [5] Linda Jorgenson, ‘Sexual Contact in Fiduciary Relationships’ in John Gonsiorek (ed), Breach of Trust (SagePub 1995) 239-240. [6] Jin v. Metro. Life Ins. Co., 310 F.3d 84 (2d Cir. 2002). [7] State v. Thompson, 792 P.2d 1103 (Mont. 1990). [8] Michal Buchhandler-Raphael, ‘Sexual Abuse of Power’ (2010) 21 U. Fla. JL & Pub. Pol’y 21, 117-120. [9] Stephen Schulhofer, Unwanted Sex (HUP 1998) 168. [10] Susan Brownmiller, Against Our Will: Men, Women, and Rape (Fawcett 1975) 283. [11] Buchhandler-Raphael (n 8) 136. [12] D. Russell, The Politics of Rape (Griffin 1975). [13] Buchhandler-Raphael (n 8) 89. [14] Apoorva Mandhani, ‘What Is Sexual Intercourse Not Amounting To Rape That Chinmayanand Is Accused Of’ (The Print, 20 September 2019) <https://theprint.in/india/what-is-sexual-intercourse-not-amounting-to-rape-that-chinmayanand-is-accused-of/294762/> accessed 25 March 2020. [15] (2010) SCC Bom 1879. [16] ibid [2]. [17] ibid [3]. [18] ibid [17]. [19] ibid [4-8]. [20] ibid [18]. [21] ibid [8]. [22] IPC 1860, s 375, Explanation 2. [23] (2005) 5 SCC 194 (‘Kamalanantha’). [24] ibid [3], [40]. [25] Ibid [40]. [26] Saurabh Shukla, ‘Filmed, Blackmailed, Raped’: Student’s Charge Against BJP’s Chinmayanand (NDTV, 11 September 2019) <https://www.ndtv.com/india-news/chinmayanand-rape-case-filmed-blackmailed-raped-students-charge-against-bjp-leader-2098953> accessed 26 July 2020. [27] Shailesh Kumar Singh v. State of Bihar (2014) SCC Pat 868. [28] Lalita Kumari v. State of Uttar Pradesh (2014) 2 SCC 1. [29] JS Verma Committee Report, Amendments to Criminal Law (2013) 74. [30] State of U.P. v. Chotteylal AIR 2011 SC 697 [13]. [31] IPC 1860, s 375, Explanation 2. [32] K.I. Vibhute, 'Rape' And the Indian Penal Code at The Crossroads of The New Millennium’ (2001) 43(1) JILI 25, 31. [33]DhruvaramMurlidhar Sonar v. State of Maharashtra (2019) 18 SCC 191; KainiRajan v State of Kerala (2013) 9 SCC 113 [12]. [34] IPC 1860, s 375, Thirdly clause. [35] Michal Buchhandler-Raphael, ‘The Failure of Consent’ (2011) 18(1) Mich J. Gender & L. 147, 183. [36] Schulhofer (n 11) 74. [37] David Archard, Sexual Consent (Westview 1998) 131. [38] Mahmood Farooqui v. State (Govt. of NCT of Delhi) (2017) 243 DLT 310 [78]; Arun Sagar, ‘Judicial Narrative and Rape Myths’, (2019) 15 Socio-Legal Rev. 43, 50-52. [39] Stephen Schulhofer, ‘Taking Sexual Autonomy Seriously’, (1992) 11(1/2) Law and Philosophy 35, 36. [40] Catharine MacKinnon, ‘Rape: On Coercion and Consent’ in Kelly Weisberg (ed), Applications of Feminist Legal Theory (Temple University Press 1996) 471, 478. [41] Swami Chinmayanand v. State of Uttar Pradesh, Criminal Misc. Bail Application No. 44814 of 2019 [13] (‘Chinmayanand’). [42] ‘UP law student says BJP leader raped her for a year, threatened family’ (The News Minute, 10 September 2019) <https://www.thenewsminute.com/article/law-student-says-bjp-leader-chinmayanand-raped-her-year-threatened-family-108663> accessed 26 March 2020. [43] MacKinnon (n 40) 474-475. [44] Chinmayanand (n 41) [8, 30]. [45] The Medical Termination of Pregnancy (Amendment) Bill 2020, s 3. [46] K.D. Gaur, ‘Abortion and the Law’ in K.D. Gaur (ed), Criminal Law and Criminology (Deep 2002) 220. [47] Phyllis Coleman, ‘Sex in Power Dependency Relationships’ (1988) 53 Alb. L. Rev.. 95, 95-96. [48] ibid. [49] Buchhandler-Raphael (n 8). [50] Susan Estrich, ‘Rape’ (1986) 95(6) Yale L. J. 1087, 1143. [51] Keela Johnson, ‘An evaluation of the methods used to prevent sexual assault within colleges’ (2000) University of Wisconsin, 6 <https://core.ac.uk/download/pdf/5065643.pdf> accessed 24 March 2020. [52] The Hindu Centre for Politics & Public Policy, Enabling Reporting of Rape in India (2015) 31. [53] Ashwaq Masoodi, ‘Acquaintance Rape: When Trust Turns to Torment’ (Livemint, 9 October 2015) <https://www.livemint.com/Politics/D6RcYtPEqPcNBA8nnHck5J/Acquaintance-rape--When-trust-turns-to-torment.html> accessed 26 March 2020. [54] David Bryden, ‘Redefining Rape’ (2000) 3(2) Buff. Crim. L. Rev. 317, 447-448. [55] K. Pope and J. Bouhoutsos, Sexual Intimacy Between Therapists and Patients (Praeger 1986) 24. [56] Bryden (n 54) 317, 337. [57] Andrew Ashworth, ‘Interpreting Criminal Statutes’ (1991) 107 L.Q.R. 419, 443.