Gang Rape Accused’s SC Acquittal Raises Questions On Rape, Prostitution & Consent

Many years ago, a bus I was traveling in hit a scooterist and badly injured him, maiming him for life. I was one of those who accompanied him to the hospital. I was asked to attend a court hearing about five years later in a case filed by the police in the said accident case. I could only vaguely remember the place where it had occurred and other details of the chronology of events of that day from the time I alighted from the bus till his relatives had turned up at the hospital. If I was asked to testify in the case now, I would only be able to say that it was something that had happened 15-20 years ago and name the road where it had happened, but not the exact spot, nor the date, nor any details of the bus or the driver, nothing, in fact, that would have made my testimony beyond doubt. So, did the incident not happen? Did the man not lose one of his arms and did he not become a cripple?

Raja and others versus the State of Karnataka, decided by the supreme court pertains to a woman, who had filed a complaint in the police station in Karnataka around 2.30 am on October 11, 1997, of having been gangraped. This case has been winding its slow course from the trial court, which acquitted the men, thence, to the high court, which found them guilty and sentenced them to 10-year imprisonment, and from there to the Supreme Court via a petition filed by the accused in 2011 against the high court judgment, which was finally heard and finally adjudicated upon in 2016, that is, 19 years after that fateful night.

The authenticity of the woman’s version has been questioned by the Supreme Court because of the in-congruencies between what appeared in her oral report, as narrated by her in the police station, which was recorded by a police official there, and what she is stated to have said during the trial. Because of these mis-matches , a view had been taken by the court that her version was not reliable and may have been cooked up to falsely accuse the concerned men. Upholding the judgment of the trial court, the Supreme Court held that the motive , might have been “a feeling of frustration, stoked by an intense feeling of deprivation of something expected, desired or promised”.

It all boils down to this.....even if the men were known to her, even if she was someone who prostituted her body, even if she had approached them for money earlier and had been refused, would that have justified her being subjected to sex forcefully? If she was a prostitute, wouldn’t she be the first one to realise that an accusation of rape would not generally be accepted,because the expected response would be “how can a prostitute in the very business of providing sex on demand be raped? Why would anyone need to rape her when she would willingly lend her sexual favours for money? “So isn’t it reasonable to think that a grave act of physical violation had indeed taken place which motivated her to seek redressal?

So what really happened? Did they pick her up with the promise of money for time spent with them? Did they just force themselves on her with the threat of physical harm, without any intention of paying for her services? What is the definition of rape? Isn’t anything other than consensual physical relations to be construed as rape? If the understanding was that she would be paid and she refused to have sex with them when they did not do so, and instead subdued her with physical force and forced themselves upon her, would that not be rape?

Or does the society and the law preclude a prostitute from getting any redress in case of physical violation, whatever be the circumstances, and whatever be the harm done to her? As far as rapes go, aren’t women in this profession, which is said to be the oldest in the world, the most vulnerable victims, for the simple reason that no act of outrage against them is deemed a crime, but something that they are compelled to accept as collateral damage of their trade? Is that why the highest court of the land has extended the benefit of doubt to those who may have been the perpetrators and disregarded her right to not be raped, treating it as something of no consequence?

Would legalising prostitution make it easier for them? A vast majority of people, who have done researches on rape, have opined that by legalising prostitution, incidence of rapes against innocent women will decrease. On the other hand, there are an equal number or more studies that have concluded that legalising prostitution will not make any considerable difference because rape is not just about lack of opportunities for legitimate sex, but involves a lot more complex twists and turns in the mental landscape of the perpetrator. It may be anything from the desire for power, childhood abuse, a sense of victimhood, plain male chauvinism, lack of self-esteem and a lot more and legalising prostitution could increase violence against the women in the trade.

In a report,Melissa Farley, PhD, Founding Director of the Prostitution Research and Education, in the Oct. 2004 journal Violence against Women article "Bad for the Body, Bad for the Heart," wrote:"Legal sex businesses provide locations where sexual harassment, sexual exploitation, and violence against women are perpetrated with impunity. State-sponsored prostitution endangers all women and children in that acts of sexual predation are normalized..." Obviously, the same mindset can prevail even in a case where the legal stamp is not there. Is what happened in this case something akin to the apprehensions voiced by Melissa Farley and others?

Even in a society, where prostitution is a legal undertaking, the element of consent should be the determining factor in concluding whether an act of violence has been committed or not. As one read in a related article on the Internet, “unlike most forms of physical violence, sexual violence is context-dependent. It is not the behaviour per se (e.g., sexual intercourse) that is violent; it is the context in which the behaviour occurred (i.e., without the other person’s permission) that makes it violent. If the other person gave permission or consent, we call it sex. Without that permission, we call it rape or sexual assault. Since the presence or absence of consent is the dividing line between sexual respect and sexual violence, we must have a clear definition of consent if we hope to build sexually safe communities.” Sadly, the Supreme Court seemed to have deliberated very little on these facets, while delivering the judgment in this case.

Nadira is a Social Worker.

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