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Habitual Victim-Blaming

Posted: February 16, 2014

I was reading the Readers’ Digest, February 2014 issue, in which I chanced upon an article by one Rajiv Wagh, a lawyer practising in the Bombay High Court, and who was earlier a journalist with the Times of India. The article is titled A New Draconian Law and talks about the Criminal Law (Amendment) Act 2013 relating to the post-Nirbhaya changes in rape and sexual assault law. (Editor’s note: The piece doesn’t appear to be available online).

The writer-lawyer admits that India is a country where women are at the receiving end of unwanted male attention and that crimes against women are rampant. He talks of the Gopal Kanda-Geetika Sharma case, the Nirbhaya case, etc, but then says that maybe Dr. Farooq Abdullah is right that in the post Criminal Law (Amendment) Act 2013 scenario, men will be genuinely scared of even hiring women for their offices. In the same breath he says that if the rules that saw the exit of iGATE CEO Phaneesh Murthy in the US became applicable in India, there will be a spate of exits from different positions of power.

yes-to-consentTowards the end of the article the writer-lawyer’s confusion completely gets the better of him, and I quote, “There is no doubt that the Criminal Law Act as amended last year is draconian to say the least…Consent given in a state of inebriation may not amount to valid consent…Lack of physical violence is no defence that there was consentNow, an accused cannot rely upon evidence to show that the “accuser” woman had freely mingled with men in the past and that she had only done the same with him…”

But then he is only a lawyer. I had written an earlier post- much before the gruesome Nirbhaya episode, Section 000, Indian Penal Code: Attempt to Rape in which I had pointed out some pathetically narrow judicial pronouncements by judges, such as, “If a woman meekly submits to sexual intercourse it would be a case of consent…”; [State of Maharashtra v. Suresh Nivrutti Bhusare, (1997) 2 Crimes 257 (Bom)].

More recently, Additional Sessions Judge Virender Bhatt, presiding over a fast-track court set up to expedite cases of sexual offences against women in Dwarka, New Delhi, said, “Girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying later that it was rape…The girls in such cases are mostly … mature enough to understand the consequences of their acts and not so numb to get carried away…they voluntarily elope with their lovers… and on return to their homes, they conveniently fabricate the story of kidnap and rape in order to escape harsh treatment from parents…”

Getting back to the article in the Readers’ Digest, and if I have understood the quoted part correctly, pre-Nirbhaya, men had the right to rape women used to “mingling” with men, and such “mingling” would be evidence in court that the raped women wanted to be raped!

I am no expert on the law of evidence or the law of criminal procedure, but I have definitely heard of the legal term ‘habitual offenders’. This is the first time I am hearing of habitual victims!

Pic credit: Ben Schumin (Used under a Creative Commons license)

I am a former bureaucrat, and have worked a lot on gender issues, disaster management

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