Storytelling is an important (and unavoidable) part of law. On 30 July 2016, a special fast track court in Saket delivered its judgment in State v Mahmood Farooqui. The following weeks have witnessed the emergence of a carefully constructed narrative of "one of us" at the receiving end of harsh rape laws for a crime he did not quite commit. Several debates on the judgment have surfaced -- on the new rape laws which were used in Farooqui's case, and on the quantum of sentencing that he received. Farooqui was convicted under the expanded definition of rape (forced oral sex) and received the minimum mandatory punishment of seven years imprisonment. An assortment of debates has emerged broadly on two grounds -- the issue of forced oral sex and the issue of mandatory minimum punishment of seven years for forced oral sex.
The (false) distinction between oral sex and penile sex is based on moral considerations that put centrality on loss of honour in peno-vaginal rape.
A careful look at the new rape laws is essential to have a meaningful engagement with these two issues. A 23-year-old student was brutally gang-raped in a moving bus in Delhi in the winter of 2012 and was later left to die on the streets. She succumbed to her injuries and died after two weeks. This was followed by a massive public outrage on the streets against what was held to be a failure of governance to provide a safe and dignified environment for women in India. The government responded by setting up a committee, headed by retired Justice Verma, to look into possible amendments of criminal law to provide for quicker trial and enhanced punishment for sexual assault. The Verma Committee, after rigorous consultation with women's groups and other stakeholders, submitted a report with recommendations, some of which were incorporated in the Criminal Law Amendment 2013 which expanded the definition of rape, introduced some new offences and took away judicial discretion in minimum sentencing amongst other things. The Verma Committee had recommended that the definition of rape be expanded to include non-peno-vaginal penetration. Penile penetration into vagina, mouth, urethra and anus was incorporated to do away with the high premium courts put on peno-vaginal penetration to determine rape. The committee also noted that definition of rape should require the existence of "unequivocal and voluntary agreement" as well as proof by the accused of steps taken to ascertain whether the complainant was consenting.
The 2013 amendment incorporated the expanded definition of rape recommended by the Verma Committee and also introduced a definition of "consent" as "unequivocal voluntary agreement", when the woman by words, gestures or any form of verbal or non-verbal communication, indicates willingness to participate in the specific sexual act. The Criminal Law Amendment 2013 also took away judicial discretion in reducing punishment below the mandatory minimum of seven years although there was no such suggestion from the Verma Committee.
Should the woman resist "enough" to ensure that she suffers sufficient physical injury so as to satisfy everyone that seven years is not too harsh...?
In the context of State v Farooqui, it has been argued that forced oral sex is less grave than penile sex. It has also been argued that rape by a known person is less grave than rape by a stranger. In addition, it has been contended that the court ought to be able to objectively measure trauma caused by any form of rape and on that basis prescribe a sentence, and that taking away that discretion does extreme disservice to penal laws. The (false) distinction between oral sex and penile sex is based on moral considerations that put centrality on loss of honour in peno-vaginal rape. For years, penetration was interpreted as being peno-vaginal in nature and courts awarded punishment on moral consideration of loss of virginity (and hence loss of marriageability). There was a high premium only on penile penetration. The women's movement fought tooth and nail to expand the definition of rape to remove this moral yardstick to measure gravity in penile rape. It was on this consideration that the law was amended. To now say that oral sex is "less grave" than penile sex takes the gains of the feminist legal movement several years backward.
It is also being argued that there ought to be a distinction made between rape accompanied by physical injury, and where the woman under the fear of possible violence "consents" to sexual intercourse and thus there is an absence of physical injury. This is reminiscent of Mathura and other regressive decisions by the judiciary, where "lack of physical injury" was read as "consent". When consent has been obtained by putting the woman in fear of death (a circumstance recognized by Section 375 as rape), chances of physical injury are likely to be less or non-existent. Should the woman then resist enough to ensure that she suffers sufficient physical injury so as to satisfy everyone that seven years is not too harsh for forced oral sex? This is antithetical to any feminist engagement with law and reinforces the widely condemned patriarchal and regressive stand of the judiciary in cases like Mathura.
It is being argued that rape by a known person is less grave than rape by a stranger. This... denies the fact that 98% of rapes in India are by known people.
It is also being argued that rape by a known person in his drawing room is less grave than rape by a stranger. This is prescriptive of women's trauma and also denies the fact that 98% of rapes in this country are by known people -- by partners in intimate relationships, friends, relatives and acquaintances. Rape is also committed by husbands but a statutory blindness exists in the form of marital rape exemption. It needs reiterating here that even in the current sentencing regime, a "brutal" (Nirbhaya like) rape and a sexual assault unaccompanied by physical brutalities, as in the Farooqui case, are assessed differently. The former will invite a higher sentencing and will act as an aggravating circumstance when quantum of sentencing is measured. The minimum sentencing of seven years has been around for a while and a lack of "grave physical injury" is not a special circumstance. Rather, a grave physical injury would have been an additional aggravating factor.
The Criminal Law Amendment Act 2013 removed the proviso to Section 376 which provided for discretion to the sentencing judge to award sentences less than the prescribed minimum (of seven years) for adequate and special reasons. An examination of the "adequate and special reasons" used by the courts, however, show the deployment of irrelevant considerations to award less than the minimum sentence of seven years. This is primarily because there are no sentencing guidelines in India unlike in the USA, UK, Australia and other jurisdictions.
Courts have constantly used irrelevant considerations such as age of the accused, his social status or chastity, or the sexuality of the victim as "adequate and special reasons".
The 47th Law Commission Report (on the Trial and Punishment of Social and Economic Offences) had noted factors that go into determining a proper sentence, such as nature of offence, prior criminal record, circumstances aggravated or extenuating the offence, age of the offender, etc. and also that offenders must be classified as casual, repeat etc. Later, the Malimath Committee (2003) and Madhav Menon Committee (2007) both advocated the need for statutory sentencing guidelines. However, there has been no dedicated work on studying sentencing policy in India; in the absence of this, no sentencing guidelines have been formed. As a result, there is no clarity on how courts determine the quantum of punishment to be imposed. This is even more dangerous when one scrutinizes the discretionary role of the judges to award less than (or more than) the minimum sentence prescribed. For example, in a 1994 case, a young woman was raped by two accused in a lodge; the court reduced the punishment from the statutory minimum of seven years to three years because "both the accused were young boys who could not have controlled their lust when the woman agreed to share a room." In yet another case, the Court noted that the "daughters of the accused (who had raped a child of one and a half years) had come of age and were soon to be married", and so the sentence was not enhanced to life imprisonment.
Courts have constantly used irrelevant considerations such as age of the accused, his social status or chastity, or the sexuality of the victim as "adequate and special reasons". Equally disturbingly, courts have frequently not recorded any reason while reducing sentences below the minimum. High courts in India have even considered mediation between parties in rape case even though rape is a non-compoundable offence. These factors seemingly are the immediate reasons for deletion of discretion in sentencing in an offence under Section 375.
To now say that oral sex is "less grave" than penile sex takes the gains of the feminist legal movement several years backward.
Is seven years too harsh a punishment for penile rape in the absence of discretion to reduce the sentence? Or is it harsh only when the rape is non-penile? There ought not to be any classification between forced penile sex and forced oral sex, and if such a classification exists, the same is ostensibly on moral grounds and must be avoided.
Moreover, to say that trauma of the survivor must have a role to play in deciding the quantum of punishment is dangerous because trauma can neither be measured nor standardized for all victims. It potentially also leads to a lynch-mob policy being built into law. More often than not, we will then witness trauma of society being imposed as trauma of the victim and have courts sit in judgment on the "collective consciousness of the society". This is undesirable.
Sentencing policy dictates that "harm" should be taken into consideration while deciding quantum of punishment. Since there is no way to conclusively measure trauma, it should be kept outside the universe of calculating harm. Moral hierarchies of rape i.e. "grave" (traumatic) rape in case of a peno-vaginal penetration and "drawing room" (less traumatic) rape in case of forced oral sex by a known person should best be avoided, especially by progressives, including feminists.