Interview: How Courts Use Stereotypes And Myths In Sentencing, Explains Academic & Author, Mrinal Satish

Prof Mrinal Satish is Associate Professor of Law, and Executive Director, Centre for Constitutional Law, Policy, and Governance at the National Law University, Delhi.

He is a graduate of Yale Law School and the National Law School of India University, Bengaluru. He holds masters and doctoral degrees in law from Yale Law School. His doctoral dissertation examined sentencing policy and practice with a special focus on rape sentencing in India.

He was part of the research team that assisted the Justice J.S.Verma Committee (2013) on amendments to rape laws. He assisted the Twentieth Law Commission of India on multiple projects involving criminal law. He was appointed an amicus by the Delhi High Court in a death sentence matter, to assist the court on the issue of determining the appropriate sentence.

His book, ‘Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India’ was released recently at the India International Centre, New Delhi, by Justice Madan B Lokur of the Supreme Court, and was followed by a panel discussion in which legal experts Indira Jaising, Usha Ramanathan, Prof Mohan Gopal, and Vrinda Grover participated. The book was also the subject of a panel discussion at the recently-held 4^th International LASSnet Conference, in New Delhi last month.

In this interview with LIVELAW, Mrinal Satish answers specific questions on the book and its concerns. Excerpts

LIVELAW: In your book, you observe that shift of stereotyping from the adjudicatory to the sentencing phase is one of the causes of unwarranted disparity in rape sentencing. Is the stereotyping permissible in the adjudicatory phase? Can you tell us how this shift caused an “unwarranted disparity” in rape sentencing?

MRINAL SATISH: Let me first explain what I mean by stereotyping in the context of rape. Courts through their interpretation (especially in the 1970s and 80s) had observed that a “typical victim” reacts to rape in a particular way – she resists the attack, she reports it immediately, she feels ashamed while testifying, she ‘treasures her chastity’ etc.

These fed into ‘rape myths,’ which are defined as “prejudicial, stereotyped and false beliefs about rape, rape victims, and rapists.” The most prevalent rape myth is that women usually make false allegations of rape. Hence, in order to decide whether to believe the testimony of a complainant of rape, courts devised various methods, which were informed by myths and stereotypes. They looked for injuries on the woman’s body, expected her to promptly report the offence, required her to feel ashamed while testifying etc.

Courts also said that the prospect of not finding a suitable man to marry her (if the victim were unmarried), that her chastity/virginity had been “lost,” that her “honour” had been impacted will deter women from falsely alleging rape. Hence, by the mid-1970s, rape adjudication was informed completely by rape myths and stereotypes.

The law reform movement, post the Mathura case, tried to rid rape adjudication of some of these stereotypes. The Supreme Court in various decisions in the 1990s ruled that the sole testimony of the woman should be sufficient to convict an offender of rape. Sexual history was held to be irrelevant, the lack of injuries on the woman’s body were not considered important, delay in filing FIRs were condoned. Thus, the Supreme Court attempted to rid rape adjudication of stereotypes.

Parliament intervened as well, repealing Section 155(4) of the Indian Evidence Act, through which the defence could bring evidence of “general immoral character” of the victim.

I argue, and show through my study, that the site of stereotyping shifted from the guilt adjudication to the sentencing phase of the trial. Since the law now prohibited some of these rape myths and stereotypes being used in the guilt adjudication phase, courts started using them in the sentencing phase – a phase which hardly got any attention from academics, lawyers, and policy makers. Hence, the marital status of the victim, whether she was a virgin or not, whether she had resisted the attack, her relationship with the offender, all started negatively impacting the sentence imposed on the man convicted of raping her.

LIVELAW: You suggest providing the Courts a sentencing range, in order to reduce unwarranted statutory disparity. Can you cite any country/countries with such a sentencing range, because of which unwarranted statutory disparity has been brought down?

MRINAL SATISH: Sentencing reform has been a major focus of law reform in various countries over the last three decades. Countries have established Sentencing Commissions to draft sentencing guidelines, and to monitor sentencing by courts. Reforms of the nature I propose in my book are in place in England & Wales, the United States, Israel, and Sweden – to name a few countries. I discuss various models of sentencing reform in some detail in the book. Studies have shown that these reforms have been successful in reducing unwarranted disparity in sentencing.

LIVELAW: One also gets the sense from the book, that the 2013 Criminal Law Amendments exacerbated this disparity in sentencing. Did the question not come up during the Government’s discussions with the stakeholders prior to the enactment of these amendments. Considering that the 2013 Amendments followed the submission of report by Verma Committee, did the issue of sentencing come up during the committee’s deliberations or figure in its report?

MRINAL SATISH: I don’t argue that the 2013 amendments exacerbated unwarranted disparity in sentencing. I argue that mandatory minimum sentences, where sentencing discretion of the judge is taken away instead of being controlled, is not the solution to the problem with Indian rape sentencing.

In fact, the Law Commission of India in its 172^nd Report noted that the suggestion to remove judicial discretion to reduce sentence below the minimum by stating ‘adequate and special reasons’, had come from Sakshi. However, the Commission recommended against doing so.

However, the Criminal Law (Amendment) Bill, 2012, which had been introduced in the Lok Sabha prior to the incident of December 16, 2012, removed these words and with it judicial discretion to impose sentences below the minimum. The Verma Committee recommended multiple changes to the Bill, but did not make changes with respect to mandatory minimum sentences. In fact, it recommended introduction of mandatory minimums in other sections as well.

LIVELAW: The objective behind reducing the sentencing disparity is that same sentence should be imposed on convicted offenders who are similarly situated, consistent with the principle of equality. However, the terms “warranted” and “unwarranted” to describe the degrees of disparity in sentencing appear to be relative and value-laden. What is warranted to some, may be unwarranted to others. Do you think this perceived inconsistency is more imagined than real?

MRINAL SATISH: No, that’s not the objective. The aim of sentencing guidelines is to ensure consistency of approach, not consistency in outcome. I don’t agree that the terms are value-laden and would mean different things to different people. I argue in the book that disparity in sentencing is actually essential – that it would be unfair to impose the same sentence on everyone convicted of a particular offence.

I make a distinction between “warranted” and “unwarranted” disparity. I argue that unwarranted disparity results when there is a deviation from an established set of norms or values. For instance, if the statute identifies deterrence as the theory of punishment, and a judge uses reformation as the theory of sentencing in a particular case, that sentence would be disparate.

Similarly, if a judge considers factors that the law considers to be irrelevant, such as past sexual history of the victim in rape cases, the sentence imposed by that judge would be disparate. Unwarranted disparity arises since another judge who follows the law and the norms would not consider past sexual history as a relevant factor, and will sentence accordingly. Laws and norms cannot mean different things to different people. Hence, what is unwarranted as per the law, will have to be considered unwarranted by every adjudicator, irrespective of his/her personal opinion on the issue.

The inconsistency in sentencing is real, and not imagined. I demonstrate this in my book through a study of 25 years of rape sentencing by appellate courts in India. The Supreme Court has commented on inconsistency in sentencing in multiple judgments over the last decade. The Law Commission of India in its 262^nd Report on the “Death Penalty” noted inconsistency in capital sentencing in India. All this is evidence of “unwarranted” sentencing disparity.

LIVELAW: Another difficulty is that preparing an exhaustive list of Dos and Don’ts to a sentencing Judge, in order to reduce the sentencing disparity, will result in reducing his discretion, which you argue in the book, should not be compromised.

MRINAL SATISH: I don’t advocate preparing an exhaustive list of do’s and don’ts. I propose that a theory of punishment be identified in advance, and legally relevant (and irrelevant) factors be accordingly identified. This is most relevant in the context of identifying relevant and irrelevant mitigating factors in sentencing. For instance, the age of the offender will be a relevant factor if reformation is the theory of punishment adopted. However, if deterrence is the identified theory, it will not be.

Currently, the judge’s personal penal philosophy determines the sentence the offender gets. This, I argue leads to unwarranted disparity, and is also unfair both to the accused and to the victim.

What I propose is that once a theory of punishment is identified, a non-exhaustive list of relevant and irrelevant factors is prepared by a Sentencing Commission. Permissible and Impermissible aggravating and mitigating factors should also be identified.

I carry out this exercise for rape sentencing to demonstrate how it can be done. I say that a “typical sentence,” be identified for each offence – the sentence which should be imposed if there are no aggravating or mitigating circumstances present.

If there are aggravating factors, a higher sentence should be imposed; if mitigating factors exist, a sentence lower than the “typical” may be imposed. I emphasize that the judge needs to provide reasons for deciding on a particular sentence, even if it is the “typical” sentence. I in fact argue for retaining judicial discretion in sentencing, not for discretion to be taken away. What I propose is proper exercise of discretion, and I argue against improper exercise or “abuse” of discretion.

LIVELAW: How does one find the relevant principles and mechanism to decide whether a particular approach to sentencing would result in unwarranted disparity in sentencing? How can Judges from the trial courts to the Supreme Court be exposed to such principles and the mechanism? In other words, how can they be taught to unlearn what they learnt all these years, and adopt a fresh approach? Do you think only a Sentencing Commission can do this? Can India learn from international experience in this regard?

MRINAL SATISH: It is not that the judges have learnt the wrong approach – there has been no approach. Like the Supreme Court has often observed, sentencing in India is “judge-centric” and not “principled.”

I propose a model for ensuring “principled sentencing.” I propose that a Sentencing Commission be established, with the mandate of identifying the theory of punishment to be employed, and for identification of relevant and irrelevant factors.

LIVELAW: Your book has an interesting section on the merits of mandatory minimum sentence. You argue against mandatory minimum because you support the discretion of a Judge to impose a term of sentence below the minimum sentence, by giving reasons. What is the official stated justification for mandatory minimum sentence, and is that justification a valid one? Can we think of better alternatives to this justification, if at all there is one?

MRINAL SATISH: When mandatory minimum sentences for rape were introduced in 2013, an official justification was not stated. The argument has been for removing the discretion that judges had to impose below minimum sentences by giving ‘adequate and special reasons.’

Studies (including mine) found that courts were providing irrelevant reasons for imposing below minimum sentences. That was certainly a problem that needed to be addressed. I argue that sentencing guidelines, which would “structure” sentencing discretion, would have been the right solution, not removing discretion altogether.

LIVELAW: If there is a mitigating factor for rape, what is it? How it should be weighed by the courts?

MRINAL SATISH: As I have noted earlier, before identifying mitigating factors, one needs to identify the theory of punishment that should be used while sentencing offenders convicted for a particular offence. Mitigating factors that are relevant for the identified theory of punishment can then be listed. The same exercise needs to be done for the offence of rape.

In the book, I identify deterrence as the theory of punishment, and identify permissible and impermissible mitigating factors accordingly. I also argue that the burden should be on the defence to prove the existence of these mitigating factors, on a preponderance of evidence. If the prosecution argues that there are aggravating factors present, they have to prove their existence beyond reasonable doubt.

Once the court is satisfied of the existence (or non-existence) of aggravating or mitigating factors, it can decide on whether to impose the “typical” sentence or a higher/lower sentence. It has to provide reasons as to why it took (or did not take) these factors into account. If reasons are not provided, that will be “abuse of discretion” and will be a ground for appeal.

LIVELAW: You have suggested that mandatory minimum sentences will increase the number of acquittals, because Judges may find the mandatory minimum too high in many cases. Is this just an assumption, or an inference based on the data?

MRINAL SATISH: There are scholars, like Prof. Andrew Ashworth, who argue that mandatory minimum sentences are counter-productive. Studies in other countries have shown that when a person is charged for an offence with mandatory minimum sentences, judges tend to acquit for that offence and punish for a lower offence which does not have a mandatory minimum. I discuss these studies in my book.

LIVELAW: You also express the apprehension that if judges are deprived of the discretion to impose a sentence below the mandatory minimum, it may lead to the police and the prosecution exercising that discretion, and framing exaggerated charges accordingly, so that such cases do not result in acquittals. Again, is this an assumption, or a valid inference from your research?

MRINAL SATISH: This is not an inference from my research, but studies in the US have demonstrated such impact. When the US Federal Sentencing Guidelines were enacted in 1984, they took away judicial discretion in sentencing. It soon emerged that sentencing discretion had shifted to prosecutors, who now had the final word on sentence, based on the offence that they charged the offender for.

My argument is that discretion will shift to the police, who are the least accountable branch. They are empowered to charge-sheet the offender for offences that don’t have mandatory minimums, or have lower maximum sentences, or to exaggerate charges and charge-sheet for an offence that has a mandatory minimum.

We see this already happening in the context of bail, in situations where judicial discretion to grant bail has been restricted for some offences. Once the police registers a FIR and arrests a person for one of these offences (like NDPS or terror-offences), bail becomes very difficult, since the judge has to virtually be satisfied that the person is “not guilty” of the offence.

LIVELAW: Some accused in the rape cases are subjected to potency tests. How relevant and useful are these tests to prove the guilt or innocence of the accused?

MRINAL SATISH: The latest edition of Modi’s Medical Jurisprudence and Toxicology states that potency tests are irrelevant and have little scientific value. Legally, with the expanded definition of rape, potency does not matter in cases which do not involve penile penetration. So, in any case, rape accused should not be mindlessly tested for potency in cases which do not involve penile penetration. Even in cases of penile penetration, a man who is impotent can still commit the offence of rape, as defined in the IPC and penetrative sexual assault as defined in the POCSO Act, 2012. Hence, the utility of potency tests, for determination of whether a man is incapable of having sexual intercourse, is largely irrelevant.

LIVELAW: Recently, the Supreme Court in the case of Raja & Others v State of Karnataka, acquitted the accused in a gang rape case, pointing out serious gaps in the version of the prosecutrix. Obviously, the judgment suffers from the stereotypes and myths that you discuss in your book. What are the myths that the bench which delivered this judgment can be blamed for sustaining, and how could the Judges in Higher Judiciary be insulated from making use of such myths?

MRINAL SATISH: The Supreme Court in Raja, relied on multiple stereotypes and rape myths in arriving at its decision. The Court firstly observed that the woman on being abducted “did not scream or cry for help.” It noted that this was “of utmost significance.” The Court also faulted her for not screaming for help during the rape and between the incidents of rape. The Court noted that “she had consumed food as offered to her by her molesters.”

The Court further noted that “her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition.” The Court concluded that her behavior was inconsistent with that of an “unwilling, terrified and anguished victim of forcible intercourse.”

Thereafter, the Court faulted her for her conduct post the incident. It observed that “instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in and around the place of occurrence.”

The Court faulted her for trying to collect information about the accused, and for her “confident movements alone past midnight.” The Court also noted that the victim “was accustomed to sexual intercourse and that no sign of forcible intercourse was discernible.”

It relied on the testimony of another woman (who had been declared a hostile witness) who had suggested that the victim used to take financial help from the accused persons and “indulge in dubious late night activities” with them.

Thus, the Supreme Court in this judgment clearly expected a certain type of behavior from a woman complaining of rape. It was not that it found the testimony of the woman unreliable because there were contradictions. It disbelieved her testimony (and instead believed the testimony of a hostile witness), since they felt that her behaviour prior to, during, and after the incident did not match that of a rape victim.

This is a clear case of stereotyping – where the court had in mind what a victim of rape would do – she would scream, resist, feel ashamed and head back home right after the incident, be chaste and not have multiple sexual partners or be a virgin, not be a sex worker. Since the woman in this case did not match any of these traits of a “typical” rape victim, the Court did not believe her version.

The only way of ensuring that the Supreme Court and High Courts do not continue to use these stereotypes is to call them out on it when they do it. That is where I think academic writing is important. It is a job of a legal academic to write about these judgments, and bring it to the attention of the judges so that they realise how these observations amount to stereotyping.

You see such healthy interaction between academia and the judiciary in the United States and the UK, and that is definitely lacking in India. Courts, where appropriate, may also seek the assistance of academics. Academics regularly file amicus briefs in the U.S. Supreme Court, and these briefs are of great value to the Court.

LIVELAW: Section 155 (4) of the Indian Evidence Act, dealing with past sexual history of the prosecutrix was deleted in 2003. But many Judges continue to comply with this deleted provision, as if it is still on the statute. Has the deleted provision been restored through the backdoor?

MRINAL SATISH: That is precisely my argument in the book – that past sexual history made a comeback at the sentencing stage. I demonstrate this fact through my empirical study. Medical evidence also played an important role in this. The proforma for medical examination required (and some states still require) doctors to note the state of the hymen of the victim, and to assess whether two fingers can be inserted into her vagina. So, essentially doctors commented on the sexual history of the woman. This would be introduced into evidence by the prosecution.

There was no need for the defence to even argue that the woman was sexually active – the doctor had already commented on it. Now, with changes made to the Indian Evidence Act in 2013, and through changes made to the proforma for medical examination of rape victims, reliance on past sexual history will hopefully finally cease.

LIVELAW: What is your view about the fast-tracking of the recent rape cases? Is justice the casualty in fast-tracking? At the same time, cases like that of Bhanwari Devi in Rajasthan have been languishing for years at the trial court. What, according to you, are the reasons for disparity in access to justice in the rape cases?

MRINAL SATISH: Prior to 2013, when fast track courts began to be introduced again in rape cases, there was a view emerging that the experiment of fast-tracking has failed. Courts had also noted this. However, with the establishment of fast track courts in Delhi after the incident of December 16, 2012, these courts have reemerged especially for rape cases.

Trying to complete trials at breakneck speeds is a never a good idea. The Constitution recognizes that the accused has a right to a fair trial, and this implies that he should be able to effectively defend himself. Lawyers should get time to prepare for their case and to put up an effective defence, albeit in a time-bound manner. So, putting pressure on courts to finish trials in 2 or 3 months would certainly lead to miscarriage of justice in some cases.

Accessing the legal system has always been a challenge in rape cases. That is the reason why rape and other acts of sexual violence are underreported. The Justice Verma Committee recognized this, and recommended multiple changes in the Cr.P.C and the Indian Evidence Act, which were accepted by the legislature and enacted into law in 2013. These amendments seek to make it easier and simpler for women to access a police station and report a sexual crime, to ensure that women are not re-victimized during medical examinations and during trials, that they are not asked irrelevant questions during cross-examinations etc. These were, and continue to be some of the barriers that victims of sexual violence face when they attempt to access the legal system.

LIVELAW: In 2013, the Supreme Court observed in Lillu v State of Haryana, that the two-finger test violates the right of rape survivors to piracy, physical and mental integrity and dignity”. If it is unconstitutional, why it has not been formally banned by the authorities?

MRINAL SATISH: In Lillu, after saying that the test violates the right to privacy etc., the Court ruled that “this test, even if the report is affirmative, cannot ipso facto, be given (sic) rise to presumption of consent.” The Court did not expressly bar doctors from conducting the test or ban it. It concluded that evidence of prior sexual activity should not be taken to imply consent.

LIVELAW: Although compromise in rape cases is illegal, it appears as though Higher Judiciary is inclined to condone it. The Supreme Court’s judgment in Baldev Singh vs State of Punjab on February 22, 2011 is one instance which illustrates this phenomenon. Was that judgment reviewed, and if the review plea stands rejected, should not the State file a curative petition in this case?

MRINAL SATISH: The Court used compromise not as a factor to acquit the accused but to reduce the sentence imposed on them, which the Court was permitted to do by providing ‘adequate and special reasons.’ If the Court had acquitted the accused, that would have been illegal. I argued in a blogpost that I wrote in 2011, right after the judgment was delivered, that considering compromise as a factor to reduce sentence is also illegal. However, a counter argument may be made that compromise is in fact an ‘adequate and special reason,’ that should be considered and hence, was one amongst the reasons cited by the Court to reduce sentence. Consequently, it could be argued that this was not ground enough to review the judgment. I am not aware if a review was ever filed.

LIVELAW: What is your view about raising of the age of consent to 18 and the legal recognition of the offence of marital rape of girls who are below 15. How do you think this inconsistency in the legal provisions can be bridged, in the absence of concern among Parliamentarians. A case pending in the Supreme Court raises this issue, but it is not clear whether and when it will be heard and decided.

MRINAL SATISH: That’s an easy question - the inconsistency can be bridged by criminalizing marital rape. As the Justice Verma Committee had recommended, intercourse without the consent of the wife, should amount to rape, irrespective of her age. If Parliament does not act, the Supreme Court should consider striking down the Exemption.

On the question of age of consent, I believe that the age of consent should not have been raised from 16 to 18 years, without introducing an age-proximity clause. An age-proximity clause is one where the law treats underage sexual activity between people in the same age group differently, since it recognizes that sexual experimentation amongst teenagers is natural. That is the approach that various countries have taken.

Under the current approach in India, a 19 year old boy who engages in a consensual penetrative act with a 17 year old girl, will be convicted of rape and the court will have to sentence him to a minimum of seven years in prison.

If the aim of the state is to stop underage sexual activity and sexual experimentation, education should be the strategy that is used, and not criminal law. In my book, I discuss how in nearly every statutory rape, where there was evidence of consent between two similarly aged individuals, trial courts, High Courts and the Supreme Court on convicting the boy, sentenced him to a below-minimum term (less than seven years). I argue that this was a clear indication from courts that criminal law is not the approach to deal with underage sexual activity and sexual experimentation.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.