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The recent judgement in the Achey Lal rape and murder case of a maidservant has larger implications for women in Indian society, says this post.
This post contains descriptions of violence that may be triggering for some readers. Please use your discretion.
The ugly question of rape has raised its head again. And most of us feminists, tired and frustrated out of our wits by now, have felt worn down and baffled by the Indian state, which almost perpetuates this sexual violence on women by ruling in favour of rapists and acquitting them, through complicated and insidious judgements about what increasingly constitutes and defines rape in India.
The most recent gem in this direction has been the Achey Lal against the Government of NCT Delhi state judgement of October 30th 2014, wherein the Delhi High Court has set aside the conviction of the appellant for rape and murder.
What has provoked furore among feminist circles has been the biases and inferences held by the court about what constitutes rape and sexual violence in the case of menopausal women, demonstrated in the rape and murder of the maid servant in question (and many of us in similar situations). My discussion about the legal aspects of this case are mostly drawn from an article written by Vrinda Grover, a Supreme Court Lawyer, in the Indian Express Newspaper.
The deceased maid servant in question, who was between 65-70 years of age, was found drunk, raped and murdered (asphyxiated) on December 31st, 2010 by Achey Lal of age 45 years, who was also found present and drunk in the same room with her during the time of arrest. Her clothes were in disarray and post-mortem reports revealed injuries and bleeding inside and around her vagina and genitalia demonstrating forceful sexual assault before her death.
Moreover, the post-mortem reports also revealed that such had been the force of the sexual assault or intercourse on her body that food from her stomach had entered her lungs and this had been the cause of her death, since this food entering her trachea and lungs from her esophagus had served to choke and kill her, the formal term for which is asphyxiation.
Despite such overwhelming evidence suggesting the violent murder and rape of the deceased woman, the judgement has concluded that the sexual intercourse was not only according to her wishes (because there were no other physical signs of protest on her body apart from on her genitals, assuming then that the act was consensual) but that the dead woman was an accomplice in her own death and hence responsible for it, because she had also been drinking with Achey Lal, a man who was not married to her and also significantly younger than her.
This act, in the scenario of a working class environment could, according to the court’s held assumptions, only constitute an invitation for sexual intercourse, if not itself a bold sexual advance. The third and most damning of judicial assumptions that served to acquit Achey Lal of rape by the court was that the deceased woman was menopausal.
The judgment specifically states that since the deceased woman was between 65-70 years of age, she was menopausal. Vrinda Grover, in her article, points to the way in which this statement about the deceased woman being menopausal without further elaboration about this point appears puzzling at first glance, unless a careful reading of it is made to understand the manner in which the judgement commences to attach no importance to the injuries sustained by the deceased woman around her vagina.
…the court then proceeded to acquit Achey Lal of murder and rape, stating that he could not have intended to rape the deceased woman and could not have known that such a forceful act of sex (which became forceful only because she was menopausal) could lead to her death.
These are treated as an effect of her menopausal condition, rather than of rape. Considering the sexual intercourse to be consensual then (because she drank with him and had no other marks of resistance on her body apart from the vagina), the court then proceeded to acquit Achey Lal of murder and rape, stating that he could not have intended to rape the deceased woman and could not have known that such a forceful act of sex (which became forceful only because she was menopausal) could lead to her death. The judgement acquitted Achey Lal then on the basis of formulating the category of ‘forceful’ penetration as distinct from ‘forcible’ penetration, with only the latter constituting the offence of rape.
There are various anomalies within the assumptions held by the judgement: if the deceased woman was too old to be interested in sex and therefore did not initiate it and simply gave in to it (in order to perhaps avert Achey Lal\’s violence), then the sexual encounter was obviously rape, whether the deceased woman was vaginally prepared for intercourse or not. It is well-known by now that many women succumb to rapists in order to escape the backlash of physical violence.
A corpus of evidence on rape, marital rape and domestic violence go on to demonstrate how consent is often treated as a ‘one-time’ given that is often taken for granted when women are treated as owned objects. It is a known feminist goal agitating against sexual violence to create awareness about consent as an ‘each-time’ process that has to be constantly re-initiated and earned, and even built into a part of foreplay. And the court should (and has to) know and heed to this, while ruling on rape for not just elite and fertile women, but also maid servants who are menopausal.
To continue with the anomaly, if the deceased woman was interested enough in sex to initiate it, then the way in which it took place, along with the wounds present on her vagina, still does not rule out that Achey Lal did indeed murder and rape her. After all that terrible force enough to kill her was used on the deceased woman, even when and despite the fact that she wasn’t vaginally prepared to facilitate penetration (because of her alleged menopause) makes the ‘forceful’ sexual encounter tantamount to being ‘forcible’ enough to kill her does itself amount to crime in any case.
…are the courts suggesting that pre-menopausal women are constantly in a vaginal state of preparedness for acts of penetration, even when intercourse is non-consensual?
To carry on with the anomaly, are the courts suggesting that pre-menopausal women are constantly in a vaginal state of preparedness for acts of penetration, even when intercourse is non-consensual? Are the courts saying – by pronouncing the rape as a technical result of forceful sex with a menopausal woman – that pre-menopausal women are incapable of being forcefully raped and are always only forcibly raped (only against the will being involved but not against the body)?
So then, how does the court explain the vaginal wounds sustained by pre-menopausal women during rape? Or were these also women who became menopausal for only the brief period of their rape, in order to sustain special vaginal wounds? What kinds of stereotypes is the court trying to perpetuate about women, when it separates their body from their will?
What kinds of stereotypes is the court trying to perpetuate about women, when it separates their body from their will?
To finally complete the anomaly, even if penetration is facilitated for purposes of sexual intercourse, whether by a menopausal woman, a pre-menopausal woman or a gay man, it is completely possible for consensual sexual encounters to turn into rapes half-way within these encounters in any case. The right to consent asserts the ability to withdraw from sex at any given moment of the act, when discomfort, humiliation or pain is generated for either partner (s) without the fear of any kind of reprisal or force against his or her will by the other participant(s).
What are the implications of this rape case and its terrible judgement for women and feminists? In my opinion, this judgement concerns us all and is not just relegated to protecting the interests of maidservants or menopausal women.
(i) The ruling judged a woman who broke age stereotypes.
According to accepted social and patriarchal norms, she should have taken up a motherly role versus Achey Lal, who was probably some 20 or 25 years her junior. We don’t even know whether she did.
Even if she did, the court judges her for belonging to ‘low’ society and engaging in low practices of drinking with him, despite being married to some one else and crossing what are understood as normative mother-son status barriers. The court tacitly accepts that what Achey Lal did to her was right as a sort of punishment for such women who engage in ‘low’ practices, by raping and murdering her most brutally.
(ii) The ruling judged a woman who broke gender norm stereotypes.
These are considered even more heinous in patriarchal society, if in this case the deceased woman really did show any sexual interest in Achey Lal at all, despite being menopausal.
Sex within patriarchy, and even rape, is considered a crime of the ‘forcible’, only among the fertile. Those who don’t fall within the category of the fertile, such as the menopausal or the gay or the transvestite for example, or even the child, cannot even approach the category of rape, because the patriarchal mental block about women facilitating their own vaginal penetration and vaginal preparedness, despite it being forcible, is a dualism that can simply not be overcome.
Finally, it is as if everything else that is included within the ‘forceful’ category here (according to such judgements cannot approach ‘rape’ accusations that only entertains the ‘forcible’ description) also falls beyond the pale of engaging with questions of consent, since it does not need to engage with what it does not define as rape in the first place.
This judgement has significant and perilous ramifications for the freedom and safety of older women in India, who will be punished by younger men for their ‘misbehaviour’ of breaking age and gender norms and be acquitted for it, since what they will have committed will not be even considered rape.
They will increasingly be at the mercy of a system that will now unleash sexual violence against them that will be non-definable as rape.
Pic credit: Image of a gavel via Shutterstock.
This post was first published here.
Deepra Dandekar is a feminist historian working on narratives of religion, community and violence in India, currently living with her husband in Germany.
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