We hear about rape constantly but there is little understanding as to what rape actually constitutes or entails for the many different kinds of victims that exist. While rape laws have changed over the years, the implication of the laws on society remains the similar. This is how socio-legal rape culture erases victims.
Written by Aarushi Ahluwalia
I had just broken up with my partner after eight years of dysfunction, and though the relationship was not a happy or even safe environment, it was still difficult to get used to not having him in my daily life. I imagine it was difficult for him too, which is why the day after we separated, I still took his calls. I was doing a story in a town close to my parents’ home and had decided to visit them for the weekend when he started to beg to see me one last time. He said he would even drive down to where I was just to do it. I didn’t want to but I hate watching anyone beg so I told him to come. He brought hazelnut chocolate and a bagful of empty promises. I told him my mind was made up and when he tried kiss me, I pulled away and told him I wasn’t comfortable with him touching me anymore. He kept saying he just wanted to feel close to me and before I knew it he was on top of me, holding me down. I felt violated. I can still taste the hazelnut and bile mixing together in my throat. I told him repeatedly to stop but he didn’t. He just kept saying he needed to be close to me while I couldn’t fathom a distance that would be far enough for me to run.
For many years I couldn’t describe that experience as rape even though I woke up with sweats, I couldn’t eat anymore and my anxiety was almost constant. I experienced a deep alienation from my body on a level so visceral, I often felt like I wasn’t there at all. I realise now my understanding of rape was influenced by the law and social environment surrounding rape at the time, and I felt like I couldn’t call it rape because I had already been in a sexual relationship with this man. Even though I categorically said no many times that time, it still felt like I couldn’t complain about just one more time with the same man. A part of this goes back to the history and evolution of rape law in India.
Rape as criminal offence was first added to the penal code in 1860 and its definition has remained largely unchanged from then. Rape is legally defined as sexual intercourse without consent, but this definition does not exist in an unconditional vacuum. Sexual intercourse necessarily involved a penis, though. That being said, there have been many developments surrounding rape law. The first thing I ever learnt about rape was from an article about the custodial rape in Mathura in 1972 where the supreme court acquitted multiple policemen for the rape of an Adivasi girl on the basis that she was “already habituated to sex” and that “there were no physical markers of force” strongly indicating that the sexual encounter was peaceful. The article also pointed out other gaps in the law that deal with sexual violence, gaps such as the lack of the definition of the word “modesty” when it came to the outrage of the modesty of a woman. The same gap allowed many child-rapists to walk free because a judge once ruled that a child was incapable of modesty, and therefore said modesty couldn’t be violated. In 1972 there was a shift in rape laws after the widespread protests over the Mathura case and then another shift in 2013 with the passing of the Criminal Law (Amendment) Act on the recommendation of the Justice J.S. Mehra commitee after the Nirbhaya gangrape in 2012. These laws focused on expanding the nature of crimes committed against women to include stalking, intention to disrobe etc and it increased the punishment for various extant offences.
It did not, however, change two things. The first is of legal importance and it has to do with the evidence-based evaluation of the victim. Victims in India are expected to show physical signs of rape to have a chance of being believed not only by the people around them, but also for a successful conviction. There is no mandatory psychological evaluation of a victim conducted during the physical examination that is conducted after the complaint is filed. Sumit Chander, a high court lawyer, once explained to me that while it is possible to file for rape on the basis of psychological damage with no physical signs of damage, it is highly unlikely such a case would lead to conviction, and in any case we wouldn’t know, because no such case has ever been filed. If one is unable to display physical signs of abuse, or god-forbid a woman sleep them off, judges in India have no problem ruling that there was no rape on the basis of the imagined morality of an Indian woman who would never sleep right after being raped. Not only does this stipulation insinuate that a woman is only “really” raped if she is brutalized, it also insinuates that the law expects all women to be virgins when raped. Psychologically-speaking, just because a man is raping you doesn’t mean he is leaving signs of violence in your vagina and as far as the law is concerned semen can be left there consensually in the absence of signs of violence. Biological responses are reflexive in many ways and obviously a woman who had been “habituated to sex” will have different reflexes, does that mean she is incapable of being raped? A woman has to make sure that her vagina is physically displaying resistance and as a result sustaining damage for the law to acknowledge the sex might not have been consensual. It’s just funny that the only time I am allowed to be incharge of my biology is when I am being raped (but I also have a strange sense of humour, it could just be sad).
The second thing that did not change after the massive overhaul of rape laws in 2013 was rape culture. Rape culture is legally propelled but socially engrained, and while we can change laws in a decisive manner, we cannot shift culture at will. It’s a slow burn and it brings with it counter-cultural movements (looking at you, MRAs) that actively resist and keep down emerging causes. We resist change as individuals as much as we resist change socially because change requires actually watching for how your ideologies play out into action on a constant basis and modifying them. It’s not a thing that happens when you are drinking chai on top of a mountain you just flew a 1000 kms to climb in search of peace. Things changed in society after Nirbhaya. A lot of women became more comfortable talking about sexual violence more openly and that’s what happens. When you see legal change in favour of something a community has suffered for silently for generations, you start to feel like you should speak so that you can help instill further change.
Women spoke. People got tired of women speaking really fast. Obviously with the creation of this space for speech, there were more stories and cases of rape being shared and reported than ever, the more stories that were told, the more we started to feel like that was all anyone wanted to talk about anymore. At the heart of all of us there is a tiny Trump complaining about Covid, Covid, Covid being the only thing we are hearing, and that’s horrifying. We are not allowed to be tired of hearing about the ills of a society when we form a part of it, that’s not what civic duty is about and since we’re so nationalistic these days perhaps it would be worth trying to uphold the actual symbol that makes us a nation (no, not Ayodhya), the constitution. This resistance to believing women when they tell stories of rape is partly because of how the law has taught us to view rape but it’s also because we have been socially taught to evaluate the woman making the allegation before considering the allegation itself.
Over the course of my life I have heard many reasons why people don’t believe women who make complaints from educated, uneducated, employed, young and older people alike. A woman once said she didn’t believe a student’s complaint because “she was always hanging out with boys”. The law itself doesn’t believe that any married woman can be raped. We automatically believe a woman who was living with her rapist less because, she was already living with him, how can we give her the right to not want sex when she doesn’t want it? I’ve heard people say things like women shouldn’t turn everything into rape just because they broke up with someone. They say that women think everything is rape these days. They minimise everyday sexism and sexual harassment as that’s just life. And some just outrightly deny rape culture and say women should just be taught better morals, and much to my horror, these people are often elected officials. In this environment, the social and legal feedback that is sent to women, makes then question their own validity as victims of rape.
The law puts you under the spotlight and examines your vagina for your truth. Society casts aspersions on your character. Yet as a victim you often cannot even forgive yourself, you wonder whether what actually happened to you really happened to you. Ultimately the law only deals with the aftermath, and society is not quite the village it takes, but the person who has to deal with rape, is ultimately the individual.
I couldn’t say I was raped in that instance with my former patner. I just couldn’t because everything around me said that I wasn’t. However my mind, it said something different. The effects of sexual trauma reignite previous sexual trauma, impact sexuality and also have the potential to trigger depression, anxiety, self-loathing and suicidal tendencies. Most rape victim’s I know, don’t qualify as such as far as the law or society goes, but we qualify in the impact it has had on our minds. We handled it. That’s apparently just what women do. We handle our pain and accept that someone will still call us the weaker sex. We’re expected to be raped but never call it that. We’re expected to swim the ocean of pain that accompanies that but never ask to be recognised lest rape become too repetitive a reference. I said no, and I am given to understand that consent is the definitive deciding factor when it comes to rape, but I am living proof that it isn’t.
I’m expected to look at the changing law and celebrate, but I still can’t eat hazelnuts, and I really used to like hazelnuts.