The offence of rape was first identified as the theft of a man's property. The woman belonged to her father or husband, and to have intercourse with her was to deprive the father of a suitable bride price and the husband sole ownership of his wife's body. As women became the keepers of society's honour, it became a slur on a family's dignity and a woman's modesty to have been defiled by another man.1 This belief continued long throughout history, until as recently as 1945, when countries started reforming rape laws. In an analysis of worldwide rape law reform, Franck, Hardinge and Wosick- Correa noted that the growth of individualism in the post-war era led to the newfound classification of both offenders and, more significantly, victims as free standing individuals. Rape, therefore, was no longer an assault on the family but on the individual, her body, and her modesty.2It took many waves of feminism to do away with the criteria of modesty, which stands upon a patriarchal bedrock refusing to recognise the concept of individual autonomy and bodily integrity3 and relies on the inspection of the victim's past sexual behaviour. Unfortunately, this progress was not uniformly undertaken by all countries. Even today, India has a separate provision for outraging the modesty of a woman.

To have a comprehensive understanding of rape it would be useful to begin with differences in definitions across jurisdictions. Variously termed as rape, sexual assault or sexual abuse, the scope of and sentences for penetrative sexual offences differ widely. The Bill in India has chosen to define rape as penetration of a woman's body by a man with any part of his body or any object or applying his mouth to the vagina, anus or, urethra of a woman.

Table 1: DEFINITIONS OF AND PENALTIES FOR SEXUAL OFFENCES AND HIGHEST PENALTY AVAILABLE.

Sources: Section 9, Criminal Law Amendment Bill, 2013; Sections 1, 2, 3 and 4 Sexual Offences Act,

2003; Sections 375 and 376, Singapore Penal Code, 1871; Section 5, Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, Section 1, Criminal Law (Sentencing) Amendment Act, 2007, Schedule 2, Criminal Procedure Act, 1977; DC ST § 22-3001, 22-3002, 22-3003 and 22-3004, District of Columbia Official Code, 2001; Sections

261 and 264, California Penal Code, 1873.

The debate surrounding rape laws encompasses two major issues—the framing of broad and comprehensive laws and an efficient enforcement mechanism. Within enforcement there are three subissues—reporting, investigation and prosecution.5

Reporting becomes an 'issue' while enforcing rape laws because of the hesitation to register complaints. This hesitation arises only in situations where it is easier for a victim to swallow her grief rather than approach the authorities. The media reported the horrific incident in which police officers in Punjab harassed a victim with such indecent questions that it drove her to suicide.6The National Crime Records Bureau showed a conviction rate of only 26.4 for rape cases in 2011.7 Studying the withdrawal of rape cases in a regional court in South Africa, Vetten and Motelow found that most cases were withdrawn due to maladministration of court procedures and police inefficiency.8 Given the situation, it is hardly surprising that most cases of rape go unreported.

It is questionable whether lower incidences of reported rape indicate a safer environment for women. As Denise Snyder, Executive Director of the DC Rape Crisis Centre put it, “With sexual assault, seeing higher numbers should often be interpreted as a positive sign, if it means that more women are feeling comfortable to step up and say 'I was raped and I demand justice'.”9 Studies indicate that as gender parity increases in both private and public spheres (workplaces and households) there is a social backlash that expresses itself in terms of an increasing number of rapes.10

Table 2: RAPE STATISTICS

Sources: National Crime Records Bureau; Office for National Statistics; Crime Situation for 2011, Singapore Police Force; Crime Report 2010/2011, South African Police Service; Uniform Crime Report 2011, Federal Bureau of Investigation

It is not easy for a rape victim to submit to evidence collection. So soon after one's bodily integrity has been attacked, it is particularly traumatic to allow a stranger to touch and examine all areas of the body yet again. It is an activity that doctors and counsellors need to carry out jointly, sensitively, not as another routine job. Yet, it is a mark of how horrifying the crime is that such examination is absolutely necessary to collect evidence. The second round of trauma is the first step towards justice. It is, therefore, particularly unfortunate when collected evidence is left untested.

The process of evidence collection involves using a cotton swab to collect evidence from the vagina, noting bruises on the body, and collecting hair and other fibres left on the victim and at the site of the crime. It is much more invasive for the victim than the accused, who is asked to provide DNA samples only much later.11 Evidence collection in India also includes the “two-finger test”, to check the laxity of the vagina, which some activists have termed as 'second rape'.12

In the US, rape kit costs, unavailability and improper implementation have presented huge problems for rape survivors in their search for justice. The Violence Against Women Act of 2005, which came into effect in May 2009, requires state governments that want to continue receiving federal grants to pay for anonymous rape tool kits, a process where data collected from the victim is disclosed only to very few people.13 However, in far too many cases, evidence collected remains untested in laboratories, preventing the prosecution from providing sufficient incriminating evidence. California has the largest backlog of untested rape kits lying either in storage facilities or submitted to crime labs but not yet examined.14 In Washington, D.C., not only are rape kits short in supply, but there are not enough hospitals staffed with specially trained staff, and the victim is expected to receive police authorisation before being examined.15

A study on the adoption of statutory rape laws in the US claims that religious conservatives and radical feminists both agreed on the need for statutory protection for adolescent women. However, liberal feminists believed that young women should not only be protected but also empowered to take their own decisions, and thus sought an “age-span” provision, which would allow minors above a certain age to engage in sexual activities if they so wished.17Thus, the age of consent became an important  issue.

Most countries fix the age of consent at 16 years, with a corresponding age limit for statutory rape. This allows adolescent minors to engage in sexual activities corresponding to normal hormonal growth while protecting younger children from being involved in activities whose implications they may not completely understand. It also works as a shield against paedophiles. In Singapore, the limit for statutory rape is lower than the age of consent, with a reduced punishment for offences against teenagers between 14 and 16 years of age, leaving them at a greater risk of harm, but incapable of consent as well. The D.C. approach is better. Instead of fixing an age for statutory rape, they have declared age of consent to be 16 and allowed for a space of four years within which people can consensually engage in sexual activities. This approach is more helpful than the UK model where a definite age is specified for teenage romance. Imposing such clear limits will be problematic in cases where the partners are of different ages and one crosses the age of 16 before the other. India, however, has muddled up the age span provision by increasing both age of consent and the age for statutory rape to 18, which signals the death knell for any kind of legal teenage romance.

Marital rape was not considered a criminal offence for much of history because wives were initially considered part of their husbands' property. Later, the marriage contract was supposed to be a sign of perpetual consent.18 Presently, many jurisdictions still refuse to criminalise marital rape on the grounds that finding evidence of lacking consent within the bedroom will be difficult. There are also voices of “concern” that believe marital rape laws will be widely misused.19 A study on the likelihood of adoption of marital rape laws indicates that when many small changes are made to 'marital rape' laws a complete or major overhaul becomes less likely.20 Though this view is based on empirical evidence, we can certainly link it to the Indian scenario, where both marriage and criminal laws have undergone amendments several times. On the other hand, we can also simply link India's acceptance of this offence as a clear symptom of the insensitive, patriarchal structures that frame and draft our laws.

Disregarding ideology and making a case for criminalising marital rape solely on merits, it is rather pretentious to say that evidence collection will be difficult when sexual abuse has been made an offence under the Domestic Violence Act. It is a further sign of disregard for a woman's dignity that sexual abuse under the DV Act is merely a civil, not criminal, offence.21 Where a married woman does not desire reconciliation or restraining orders but wishes her rapist imprisoned, the option simply does not exist.

India has thus failed to live up to its international legal commitments in fora such as the Convention for the Elimination of Discrimination Against Women (CEDAW), which expects state parties to provide men and women the same rights and responsibilities throughout their marriage and the same personal rights as husband and wife.22When it signed the CEDAW, India also undertook to repeal all national penal provisions which constitute discrimination against women.23 By not repealing the exception to marital rape provided in the IPC, India has been in violation of its international commitments.

Reducing the crime rate of a city would ideally involve dangling the stick and the carrot together—mass awareness campaigns and felicitation of “well-behaved” cities on the one hand, and severely deterrent laws and enforcement on the other. Efficient enforcement would again require sensitising the police force and awarding “citizen-friendly” police stations and taking strict disciplinary measures against officers who harass complainants or fail to register First Information Reports.

At the same time, the power of the law to change societal attitudes can definitely not be undermined. Article 3 of the CEDAW expects state parties to take all appropriate measures,including legislation, to ensure the full development and advancement of women.25 Article 5(a)requires all state parties to modify the social and cultural conduct patterns of men and women to eliminate prejudices, customs and practices based on stereotypes or ideas of inferiority of either sex.26Read together, state parties have the obligation to legislate, where necessary, to modify social conducts that are derogatory to either gender. Law and sociology experts speak extensively of the constitutive quality of law in manipulating social behaviours. They consider the law to be an integral part of society and, therefore, instrumental in bringing about social change. “Lead laws” are a very valuable tool when seeking to direct society along a more civilised path.27

The struggle for sexual autonomy and bodily integrity has been long in the making, but it is gradually increasing the scope for women from all sections of society to gain their voices and agency. The movement has now gone beyond women's rights and sexual assaults to the very roots of patriarchy, challenging the constraints it poses to both men and women. Social media plays an active role in mobilising public opinion in this regard, but it is limited primarily to more privileged classes. Reaching out to the entire Indian population and explaining the contradictions inherent to a system that ignores the well-being of half its population remains a complex challenge. However, with some amount of dedication, reconciliation is not only possible but absolutely achievable.

Endnotes:

1.               See: B.A. MacFarlane, “Historical Development of the Offence of Rape” in 100 years of the Criminal Code in Canada: Essays Commemorating the Centenary of the Canadian Criminal Code (ed. J. Wood and R.C.C. Peck, Canadian Bar Association, 1993).

2.               D.J. Frank, T. Hardinge and K. Wosick-Correa, “The Global Dimensions of Rape-Law Reform: A Cross-National Study of Policy Outcomes” in 74(2) American Sociological Review 272 (2009).

3.               “ India: Reject  New  Sexual  Violence  Ordinance”,  Human  Rights  Watch,  available  at

<http://www.hrw.org/news/2013/02/11/india-reject-new-sexual-violence-ordinance> (27 February 2013).

4.               J. McMahon-Howard, J. Clay-Warner and L. Renzulli, “Criminalizing Spousal Rape: The Diffusion of Legal Reforms” 52(4) Sociological Perspectives 505 (2009).

5.               K. M. Hess and C.H. Orthmann, Introduction to Law Enforcement and Criminal Justice (New York: Delmar Cengage Learning, 2009).

6.               “Rape Victim Suicide: What did they open first, shirt or jeans, asked cops”, The Indian Express, available at

<http://www.indianexpress.com/news/rape-victim-suicide-what-did-they-open-first-shirt-or-jeans-asked- cops/1051709> (27 February 2013).

7.               “Figures at a Glance – 2011”, National Crime Records Bureau, available at <ncrb.nic.in> (27 February 2013).

8.               L. Vetten and D. Motelow, “Creating State Accountability to Rape Survivors: A Case of Boksburg Regional Court” in 62 Agenda: African Feminisms 45 (2004).

9.               A. Hess, “Test Case: You're Not a Rape Victim Unless Police Say So”, Washington City Paper, available at

<http://www.washingtoncitypaper.com/articles/38671/test-case-youre-not-a-rape-victim-unless-police- say/page2/> (27 February 2013).

10.          R. B. Whaley, “The Paradoxical Relationship between Gender Inequality and Rape: Toward a Refined Theory” in 15(4) Gender and Society 531 (2001).

11.          Supra A. Hess at note 11.

12.          “India: Prohibit Degrading 'Test' for Rape”, Human Rights Watch, available at <http://www.hrw.org/news/ 2010/09/06/india-prohibit-degrading-test-rape> (27 February 2013).

13.          K. Wyatt, “Anonymous Rape Tests Are Going Nationwide”, ABC News, available at <http://abcnews.go.com/ Health/story?id=4847901&page=1> (27 February 2013).

14.          “Testing Justice”, Human Rights Watch, available at <http://www.hrw.org/node/81825/section/2> (27 February 2013).