Mumbai HC’s decision shows how rape is being legally redefined

  • Advaita Kala
  • Updated: Mar 11, 2016 16:53 IST
The judgement of the Bombay high court shows that rape has been “otherised”, and is secondary to the claimant’s level of education or literacy. Instead of trying to define consent, our courts are seemingly trying to bowlderize our understanding of rape. (Representative Photo)

The problem with the half hearted attempts at defining “consent” is that more often than not it focuses on the victim and not the act itself. A recent Mumbai high court judgment granted bail to a man who had been accused of rape by a woman, who he had been in a relationship with. The judgment stated that because the woman was educated, she was mature enough to understand the consequences of a physical relationship.

By defining her consent in the context of her “privilege”, this denies the complainant the right to present her experience as she experienced it. The focus should have been on the act itself and not the woman in question, thereby setting a legal precedent for dismissing charges of rape on the basis of a woman’s educational qualifications. How is this any different from the contextualising in terms of “what she was wearing”? Or why was she out late at night? It is but yet another caveat, “She is educated and should know better!”

Now consider the other side, recently the government said that the concept of marital rape is not suitably applied in the Indian context because of factors like poverty, illiteracy and religion. As a result of these limitations, a woman’s ability to understand the violations to her body is impaired!

It is a shocking subjugation of the rights of women over their bodies. The defence is that she is either illiterate or hyper-literate. In either case her body is separated from her. The act of violation “otherised”. Even an animal knows when it is being taken to a slaughter house for its inevitable demise, articulating its “dissent” in a language that it knows its human captors will not understand or heed. Despite knowing of the futility of its cries, it protests.

And yet a woman educated must be hyper conscious to rape and an uneducated one, numbed to it? Is a woman’s voice as incomprehensible as that of animal speak?

What is our takeaway then? A woman whether educated or not, married or single, has no right to define what she considers a violation of her body? If in one case her privilege impairs her right to call a sexual act rape, on the other her lack of privilege incapacitates her understanding of physical violation.

In the Mumbai high court judgment, it was stated in the “context” of the educated woman that, “ if you consider western culture then this is consensual”. Western culture also applies consent to situations when women have been in a relationship with a man, this is ignored. On the other hand, the government says that the western understanding of marital rape cannot be applied in the Indian context?!

We separate women from their bodies. We selectively apply western versus traditional concepts of understanding of rape to disempower women and invalidate their experience. We want women to believe that rape happens to them “because of and worst of all we want them to understand that in most cases it does not happen at all.

We avoid defining consent because it empowers women, so instead we attempt to delete rape from our collective lexicon.

(Advaita Kala is a social commentator, award-winning writer of Kahaani and the bestselling novel Almost Single.)

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