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.”

The irony was that the bull was already in the shop, and the demand was to take the bull out of the china shop. While the narrative was made in the intimate domain, it nevertheless normalises all rape as something that naturally happens to women.

Death by rape 

What happens when the raped woman is dead as has been happening in several well-documented cases? Surely then she cannot be blamed for having invited the rape? Dead women tell no lies, and neither do dead bodies tell lies. Increasingly, we have seen rape and murder go together over the years. The conscience of society has always been outraged when the raped woman is dead, not necessarily when she is alive.

Rape as atrocity

Rape, when it occurs outside the framework of the family or intimate relationships, mainly when accompanied by murder, evokes outrage. This is a trend I have noticed while dealing with domestic violence. When women allege cruelty by their husbands while they are still alive, they are told they are misusing the law, victimising their husbands and harassing elderly parents.