Rena Bivens & Amy Adele Hasinoff. Information, Communication, and Society. Volume 21, Issue 8, 2018.

Introduction

In August 2015, I spent the day at an All Women Police Station in Uttar Pradesh, India sitting in on interviews and talking to female police officers.

The first woman walked in followed by a procession of both family members and respected neighbours. She had been suffering from domestic violence and dowry harassment at the hands of her husband. Although both are crimes recognised by the Indian Penal Code 1860 (IPC), she repeatedly emphasised that she did not want to register a First Information Report (FIR) with the police. In fact, to avoid going to the police, her family had previously gathered the community together to gain their approval to be separated from her husband and to recover the dowry her family had given him on their wedding day. Although the community agreed that the couple should separate, the husband refused to comply. The family, desperate and unable to part with more dowry, felt compelled to involve the police.

In many parts of India, sociocultural factors and the sensitive nature of family disputes mean that the police play an incredibly important role as community mediators (Kethineni & Srinivasan, 2009). Most complainants in India experiencing family violence approach police officers in order to help them reach a “compromise” with the offender (Berti, 2010, p. 237; Natarajan, 2005, p. 93). The police, in its mediation role, hear both parties and then set a future date for the couple to meet again – hopefully a step closer to finding a socially acceptable solution for both parties (Natarajan, 2005, p. 92).

The day that I happened to be sitting in on complaints was the date the husband had requested for the second mediation session. While the woman’s family had arrived for their appointment, the husband was conspicuously absent. Clearly, he did not wish to compromise. The next step therefore was to lodge an FIR. Although theoretically, this sets the wheels of the criminal justice system in motion, both the police and the complainant knew that the FIR’s purpose was to offer a further incentive to the husband to compromise. The family’s plan was that he would return the dowry, agree to separate and she could then withdraw her case. For many Indian families, maintaining the social fabric is much more important than pursuing legal avenues (Baxi, 2010, p. 232).

I was completely taken aback by the chasm between the process envisioned in legislation and the approach taken in reality. However, P. Darbyshire reminds us that all over the world, the gap between the “law in books” and the “law in action” is akin to that between the “contents of Larousse Gastronomique” and “Kentucky Fried Chicken” (Bronitt, 1998, p. 111). Although this paints an amusing picture, this gap has the potential to become dangerous.

In this essay, I argue that the Indian police, legislature, and judiciary are failing to openly acknowledge and account for the local cultural dynamics of violence against women. One of the most commonly reported categories of rape, and unsurprisingly one of the most controversial “new” crimes against women in India, is that of “rape by false promise” – where consent to sexual intercourse is procured under a fraudulent promise of marriage. The prevailing belief in India, that this law is manipulated and misused by middle class and elite women, (Basu, 2011, p 188) is colouring the public perception of women who complain of all gender violence in India. Withdrawals of complaints are widely misinterpreted as stemming from false complaints, uncooperative, or hostile witnesses are seen as liars and the laws protecting women are viewed in the wider community as being misused by deceitful and manipulative women and their families.

Tracking the recent law reform in India, this essay will draw parallels between the fear of women as false complainants and the experience of reform in other Commonwealth jurisdictions – constantly asking: How can the legal system more effectively combat misconceptions held by the public, police force, and judiciary about rape?

The Indian Penal Code (IPC) 1860

When the IPC was enacted in 1860, India was at the forefront of one of the most progressive and liberal definitions of sexual offences (Yeo, 2011, p. 50). The concept of lack of consent was central to the provision, at a time when it did not even appear in the common law concept of rape. Unlike the English common law of carnal knowledge, which required sexual penetration by force, and proof that it was against the woman’s will, (Hale, 1736, p. 627) the prosecution had only to prove that the intercourse occurred without consent (IPC, s 90). While the English courts were debating whether or not sex with an unconscious woman could be rape (see R v Sweenie, 1858; Commonwealth v Fields, 1832) in India, this “absence of consent” clearly fell within the purview of section 375 IPC.

Consent, however, was undefined in the IPC and judges were “left entirely in the dark concerning the correct approach to take to resolve an ambiguity, gap, or inconsistency in the IPC” (Yeo, 2011, p. 8). Although against the drafters’ wishes (Yeo, 2011, p. 8), the local courts drew extensively on nineteenth century English common law, which emphasised “the character and prior sexual experience of the woman … the presence of clear physical proof of her violation and on prompt complaint of the alleged rape” to inform concepts of consent, relevance, and credibility (Kolsky, 2010, p. 111).

Rape law reform

The drafters of the IPC intended that the Code would be periodically reviewed and revised, to keep pace with societal changes (Yeo, 2011, p. 5). This however has not happened. Reform of the sexual offence provisions has been characterised by knee-jerk legislative responses following public outcry in high-profile cases. The piecemeal nature of law reform is evident through examining the context and outcomes of the 1983 and 2013 sexual offence amendments, which expose that many of the assumptions surrounding a woman’s sexuality, chastity, and honour, imported from English common law, have remained largely unchallenged (Kapur, 2013, p. 4).

The “Mathura” rape case and the 1983 amendments

One hundred and twenty-three years after coming into force, the rape provisions in the IPC were amended for the first time with the passage of the Criminal Law (Second Amendment) Act 1983 (India). It was public outrage that mobilised the reform following the rape of “Mathura,” an illiterate, young tribal girl by two police officers. The main issue on appeal before the Supreme Court was the truthfulness of Mathura’s testimony – with no injuries on her body, it was contended that there was no independent evidence of the lack of consent to support her oral testimony (Tuka Ram & Anr v State of Maharashtra, 1979).

Although Indian criminal law has never formally required corroboration for sexual offences, by the 1920s, the general approach to a victim’s testimony was one of “disbelief” (Maung Ba Tin v Emperor, 1926; Kolsky, 2010, p. 116) a woman being understood to be naturally predisposed to fabricate sexual allegations (Lyon, 1888, p. 3). This “rule of prudence” (Deshpande, 1984, p. 41) that a rape victim’s testimony should be corroborated, can be traced to the approach of the English courts where the initial judicial practice of giving corroboration warnings over time transformed into a mandatory jury warning; the failure to give such a warning about the dangers of relying of this class of witness would result in a miscarriage of justice (Bronitt, 1991). Along with this warning, the relevance of evidence of past sexual history, lack of physical resistance, and recent complaint similarly went to both the issue of consent and credibility. The effect was that these “independent” sources of evidence provided “infinitely more trustworthy” indicators than a woman’s oral evidence (Ali & Woodroffe, 1898, p. 26).

In testing Mathura’s credibility therefore, it should have been unsurprising that the Supreme Court mistrusted her allegation of rape in the absence of physical injury, and inferred from findings that “the hymen revealed old ruptures” and the “vagina admitted two fingers easily” that Mathura was “habituated to sexual intercourse” and a liar (Tuka Ram and Anr v State of Maharashtra, 1979). The circumstances of Mathura’s rape were horrifying. Yet the court positioned Mathura as a member of a presumptive, untrustworthy class of witnesses, and the correlation drawn between her sexual experience and the validity of her consent was responsible for the unjust outcome.

The 1983 amendments, however, side-stepped these obvious deficiencies in the rules of evidence (Westmarland & Gangoli, 2012, p. 108). Rather, the legislature simply appeased public outrage by enhancing punishments and introduced custodial rape as an aggravated form of the offence (IPC, s 376 (2); Agnes, 1998). Although the issue of consent was targeted with s 114 A (Indian Evidence Act 1972) introducing a “presumption as to absence of consent” in situations of custodial rape (Gaur, 2011, p. 673), Pratiksha Baxi suggests that this amendment has been largely symbolic (2014, p. 213). The defence case has increasingly revolved around the character of the complainant, relying on inferences made from the “two finger” test to successfully subvert the reversal of the burden of proof and establish consensual sex as opposed to rape (e.g., Revella Sivaiah v State of AP, 2005; Public Prosecutor v Yejjala Ramswamy, 2004).

The Supreme Court and the corroboration requirement

The authority of the corroboration requirement imported from English common law came under increased scrutiny in a string of cases before the Supreme Court beginning in the 1980s. These cases held that viewing a woman’s testimony as inherently unreliable was a denial of justice (Rafique v State of Uttar Pradesh, 1981; B.G. Hirjibhai v State of Gujarat, 1983; State of Maharashtra v Chandraprakash Kewal Chand Jain, 1990). Although this approach seems progressive, a feminist reading of these judgments reveals the patriarchal assumptions about womanhood that continue to dominate the discourse of the rape trial. The judgments reason that unlike “permissive” and “gold digging” women in the west, (B.G. Hirjibhai v State of Gujarat, 1983) the Indian woman is both unwilling and unable to lie about rape, being inherently more virtuous and subjected to scrutiny (Gangoli, 2007, p. 93).

Although this reflects in part the very real social stigma surrounding rape in India, it creates a “Catch 22” situation where a woman’s testimony can only be believed if she is a “woman of honour”, while maintaining that honourable women do not come to court complaining of rape (Deshpande, 1984, p. 41). The courts have created a legal fiction of the reasonable Indian woman who, if raped, is necessarily “looped into a vicious cycle of shame and honour” (Verma J, Seth L & Subramanium G, 2013, pp. 83–84). In B C Deva v State of Karnataka (2007), for example, the Apex Court upheld a rape conviction in the absence of eye witness testimony or independent corroborative medical evidence. Importantly, the bench placed significant weight on the victim’s immediate complaint of the incident as well evidence that she subsequently attempted suicide, suffering from extreme emotional and mental trauma. Against the backdrop of her “deep sense of deathless shame” (Rafique v State of UP, 1981), her prompt complaint allowed her to maintain the appearance of virtue and reliability in the eyes of the court.

In cases where the victim fails to act in the manner a reasonable rape victim should, she is much less likely to be protected by the law. In 2013, the Supreme Court indicated that although a rape victim’s testimony commands “great respect …, there are some circumstances … where it is not safe to rely on the uncorroborated version of the victim of rape” (Kaini Rajan v State of Kerala, 2013). These circumstances often include the absence of “hue and cry” or a much delayed complaint – both of which have been labelled by judges as “strange” behaviours for victims of sexual assault (Kaini Rajan v State of Kerala, 2013). In Ramdas and Others v State of Maharashtra (2007), the Supreme Court acquitted the accused as the Court was not convinced beyond “a shadow of doubt” of her “veracity”. Here the complainant was a married woman living separately to her husband. She not only took 8 days to formally report the rape to the police, but her family also withheld news of the assault from other villagers. This behaviour was considered to be “most unnatural,” and a factor material to establishing that the appellants were, in all probability, “falsely implicated”.

Doubting a woman’s credibility for failing to parade her injuries around town can be traced to the medieval common law requirement of “hue and cry” (Bronitt, 1998, p. 44). The Indian Supreme Court has, however, recognised that delay in lodging an FIR should not always be fatal to the prosecution’s case (State of Himachal Pradesh v Gian Chand, 2001). In cases of sexual assault, the Court has recognised that fear of social stigma (Karnal Singh v State of M.P, 1995; State of Punjab v Gurmeet Singh & Ors, 1996) and the difficulty of travelling to the police station (Sheikh Zakir v. State of Bihar, 1983) are both sufficient reason for some delay in reporting. On the other hand, both judges as well as legal textbooks, still perpetuate the belief that a “reasonable woman” would at least consult family members after having been raped (Satyapal v State of Haryana, 2009; Babu Lal & Anr v State of Rajasthan, 2001; Devanand S/O Shri Balbir v State, 2003; Modi, 2011, p. 675). As failure to do so at the first available opportunity can be detrimental to the prosecution’s case (e.g., State of Punjab v Gurmeet Singh, 1996; Ramesh Baburao Devaskar & Ors v. State of Maharashtra, 2007; Satyapal v State of Haryana, 2009), the erroneous assumption that women are both physically and emotionally capable of reporting their abuse, even to close relatives, continues to drive acquittals.

“Nirbhaya” – criminal law (Amendment) act 2013

In 2013, the Committee on Amendments to the Criminal Law (“Verma Committee”) was tasked with advising the Indian government on rape law reform following the highly publicised gang rape and murder of a university student on a bus in Delhi (Verma, Seth and Subramanium, 2013, p. i). Despite anticipation that the amendments would entail a comprehensive overhaul of Indian rape laws (Talwar, 2013, p. 51), the Criminal Law (Amendment) Act 2013 (India) made no serious attempt to tackle the archaic, entrenched patriarchal attributes of rape law in India. It was again public outcry and punitive discourse of law and order, not the discourse of human or gender rights, which influenced the legislature (Kapur, 2013, p. 3). Indeed, Parliament rejected the Committee’s recommendation against capital punishment (Verma, Seth & Subramanium, 2013, p. 117), introducing the death penalty in situations of aggravated rape (IPC, ss 376 A, D, and E), retained the marital rape immunity (IPC, s 376 (2)) and intensified the security apparatus of the state (Kapur, 2013, p. 4). By enhancing sentences in this way, the 2013 amendments may have decreased access to justice by encouraging appeals (Tonry, 2009). This results in more trials, delay, and emotional cost to all involved. Furthermore, there is evidence to suggest that judges are less likely to convict an accused where the mandatory minimum sentence seems disproportionate to their understanding of the accused’s moral culpability (Greenblatt, 2008, p. 2; Deffains & Rouillon, 2009, p. 161). National statistics indicate that rates of conviction in rape trials have declined from 36.4% since 1981 (National Crime Records Bureau [NCRB], 1981, p 58) to the current figure of 28% in 2014 (National Crime Records Bureau [NCRB], 2014). Veena Das points out that following the rape law reforms, “one would have expected that the new directions … given for interpreting consent, may have made conviction easier rather than making it more difficult” (Das, p 2413).

Focusing law reform not upon harsher punishments, but instead on incentivising guilty pleas in appropriate cases is widely recommended as a means of avoiding the humiliating process of the trial (Braithwaite, 2002; Combs, 2006; Daly & Bouhours, 2010, p. 569; McGlynn, Westmarland & Godden, 2012). This has great significance in India where the “boast of successfully terrorising a rape victim during a cross-examination and the slandering of [her] character typify defence lawyering” (Baxi, 2014, p. 89). This continues despite the fact that not only has the Criminal Law (Amendment) Act 2013 (India) clarified that reputational evidence is inadmissible (Indian Evidence (Amendment) Act 2002, s 146 E; (Jagadeesh, 2010), p. 110), but a witness’ previous sexual history with any person is also irrelevant to establishing consent and cannot be adduced (IPC, s 155 (4); (Indian Evidence Act 1872), s 54).

Effects of the criminal law (amendment) act 2013 (India)

The 2013 amendments, notwithstanding the limitations noted above, have been responsible for several positive outcomes including increased community awareness of the issue (Shakil, 2013), as well as reporting of sexual assault (Immigration and Refugee Board of Canada [IRB], 2012). This may be in part due to the increased media coverage of the issue, which has made sexual assault a more acceptable topic of public discussion – at least in New Delhi (Chatterjee, 2013; Lahiri, 2013; Kumar, 2014, p. 451). A more open public discourse surrounding rape is extremely important in India, as social stigma remains one of the largest obstacles to sexual violence survivors’ access to justice (Agnes, 2008, p. 269). Another impact of the 2013 amendments is to encourage more women to report their victimisation. Data provided by the Ghaziabad police indicate a significant rise in the number of rapes reported by women in its district since the Criminal Law (Amendment) Act 2013 (India) was enacted. Although between 2010 and 2012, the number of rapes reported never exceeded 30, the year 2013 saw this reach 78, with 110 being reported in 2014, and as of July 2015, 71 cases have been reported. This finding is replicated at a national level with the NCRB’s annual statistics showing a spike of 35.2% in reported rapes reporting in 2013 following “Nirbhaya,” with a total of 33,707 cases being reported as opposed to the 24,923 reported in 2012 (NCRB, 2014).

With 36,735 reported rape cases in 2014 for a country of 1.25 billion, India has one of the lowest incidences of reported rape worldwide (NCRB, 2014). However, reported rape accounts for only the “tip of the iceberg.” Comprehensive studies on underreporting of gender violence in India indicate that between 1.17% (Palermo, Bleck & Peterman, 2014, p. 605) and 5.8% (Gupta, 2014, p. 3) of survivors formally report to the police. Although it is problematic to compare these figures with those obtained in other studies, an analysis of major sexual victimisation surveys can help develop an idea of where India stands internationally. On average, Daly and Bouhours (2010) provide that the rate of reporting is as low as 14–18% in England and Wales and 12–20% in Australia (p. 572). While this figure is significantly higher than those estimated in India, it still means that on average, 86% of victims choose not to report rape and sexual assault to the police.

Backlash

Although the 2013 amendments may have stimulated survivors of abuse to report incidences of gender violence, male rights activism groups dismiss the increased reporting to a belief that both the 1983 as well as the 2013 amendments have created a tsunami of false complaints (see Yadav, 2013, p. 192; Lodhia, 2014; Verma, 2015). Mainstream media has become an ally of this movement, exemplified by an article in the India Times that reported: “You truly are damned if you’re a man in India. You’re damned if you’re a guy and accused of anything against a woman” (Anand, 2015). This widespread view, reflected and then shaped by media (Hamlin, 1988, p. 244; Gavey & Gow, 2001), is pervasive in Indian society. Many men now feel victimised by the “broader” laws that criminalise “eve-teasing,” a form of routine sexual harassment and indecent touching that is considered an inherent aspect of a woman’s daily life (Rao, 2006; Lodhia, 2014, p. 906). This view is reflected in the concerns of one government Minister who voiced his fear of talking to or hiring a female employee for fear of “ending up in jail because of a complaint” (Elsesser, 2015, p. 189).

Such outcry against laws protecting women from abuse is not unique to India. Feminist scholars document that this “backlash” is characteristic of the surges of counter-assaults on feminism whenever there appears to be progress in challenging patriarchal belief systems (Jordan, 2004, p. 3; Temkin, 2003, p. 224). The counter-blows by male dominated institutions often insist that men now have the marginalised voice and are being victimised by the law (Jordan, 2004, p. 3). Michael Flood (2010) points to the Australian Fatherhood Foundation’s open letter to Prime Minister John Howard as axiomatic of the world view of father’s rights groups (p. 329). The letter reads: “For too long Aussie dads have been libelled by media, vilified by feminists, and denied justice by our court system.” A routine complaint advanced by this group is that ex-wives fabricate accusations of abuse to gain the upper hand in family law proceedings (Flood, 2010, p. 329). The new victims internationally therefore are argued to be “not women and children, but the men they supposedly falsely accuse” (Jordan, 2004, p. 4).

The origins of the misuse argument

The argument that survivors of abuse, as a class of witnesses, are “making it all up” is traditionally traced to English law, and the corroboration rules that presumed the falsity of rape allegations in the absence of independent, corroborative evidence (Kolsky, 2010, p. 111). The rationale for this rule is commonly grounded on the opinions of Sir Matthew Hale, the distinguished seventeenth century English jurist, who regarded “rape [as] an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent” (Hale, 1736, p. 634). Hale’s caution about the reliability of rape complainants was incorporated and perpetuated by medico-legal textbooks (Bourke, 2007, p. 28). For example, The Student’s Handbook of Forensic Medicine and Medical Police (1883) cautioned doctors to be wary as the vagina could be manipulated with any number of hard objects in order to “substantiate a false charge of rape” (Husband, p. 117), while in Forensic Medicine and Toxicology (1898), mothers of children with venereal infections were accused of deliberately injuring their children’s genitals in order to make the story of abuse appear believable (Dixon-Mann, 1898). This belief was similarly echoed in mainstream media. In an article published on 16 July 1866, The Times warned that there was “no small danger” that women “may have at their disposal the reputation of any man whom they happen to meet” (Bourke, 2007, p. 28). The motive for making such a false charge varied, depending on the class of female complainant; however, malice, hysteria, or financial gain were the motives cited most prominently.

This medieval English mindset, that continues to find its way into English and Australian textbooks and jurisprudence (Larcombe, 2002, p. 96), travelled to India with the colonial administration. However, in addition to the prejudicial presumptions faced by English women, Elizabeth Kolsky explains that Indian women had the burden of contending with “colonial ideas about the unreliability of native witnesses” (2010, p. 111). In Dr Norman Chevers’ widely taught manual on Indian medical jurisprudence, he cautioned that deceit being inherent in the “native’s” character, “a Surgeon’s first inquiries should be – Was this injury self-inflicted? and – Was it inflicted in the matter alleged?” (1856, p. 257), adding that in cases of rape, “persons are, by no means rarely, charged falsely with its commission” (1856, p. 460). This view was similarly propagated by “every significant medical jurisprudence textbook” (Baxi, 2014, p. 66), including Lyon’s Medical Jurisprudence for India with Illustrative Cases (1888) that claimed that “there is no commoner class of false accusations in this country than that of rape” (Lyon, p. 3). Police surgeons, students, as well as the legal and medical profession were therefore reminded constantly of the need for heightened vigilance when dealing with this exceptionally unreliable class of witness.

The reference tool used by most legal practitioners in India today is the twenty-fourth edition of Dr Jaising Modi’s Student’s Handbook of Medical Jurisprudence and Toxicology (1920). Although amended to incorporate legal reforms, the section on sexual violence continues to “reek of deep-rooted hostility against women” (Agnes, 2005, p. 1859). This most recent edition continues to warn of the ease of making a false allegation of rape (p. 664), that women of “excitable and emotional temperaments” are prone to confabulate rape allegations (p. 675) as well as the tendency of women having “consented” under the influence of alcohol, to awake, “realise her mistakes, repent of her conduct and [try] to lay all the blame at the door of her companion” (p. 675). Until 2002, updated editions of Modi’s textbook continued to warn practitioners that children are often tutored to tell a “circumstantial story of rape,” stating further that:

false charges of rape are not uncommon in India. Occasionally parents may introduce chillies into the vagina of their female child to cause irritation and inflammation … for the purpose of substantiating a false charge of rape … with a view to take revenge or extort money (2011, p 503).

This observation has been referred to in obiter dicta by high courts as recently as September 2015 (M Veerabatharappa v The Secretary to the Government, 2015). Furthermore, the Punjab–Haryana High Court expressed doubt over the ability of a “healthy adult female” to be “violated against her will” given Modi’s opinion that this would be nearly impossible (Labh Singh v Pb St, 2015)!

As the Australian Law Reform Commission (ALRC) has noted, this rape myth – that men accused of rape are more vulnerable to false accusation than other types of crime – is deeply entrenched:

The belief is connected with the emphasis on corroboration and ideas about what a “real” rape looks like. It is a powerful notion not only in positioning women and children as potential liars, but feeds into other conceptions of particular women as vindictive or vengeful – for example, a woman who makes allegations against a former spouse might be characterised in this way; and wanting to hide their sexual behaviour – the suggestion that some young women, in order to hide their sexual activities from their parents, “cry rape.” It is one basis for the ever present concern about “false” allegations (2010, p. 1112).

The effect of the misuse argument

The belief in the prevalence of misuse has had three significant effects in the Indian context. First, while there is no historical evidence to support Modi’s fear of malicious prosecutions, the allegation that an innocent accused is being targeted for an ulterior motive remains a common and effective defence strategy. Common motives cited are that either the girl or a family member is seeking to avoid repayment of a debt or to extort money (e.g., State v Kunal Kumar, 2015; State v Mukesh Sankla, 2015; State v Abhishek S/O late Sh. Jitender, 2014; State v Dharmender @ Ajay Kumar, 2015) to gain the upper hand in property disputes or to coerce an accused into marriage (see e.g., Rukmini, 2014; Manoj Bajpai v State, 2015).

A further significant effect of the “misuse” argument is to support advocacy for increased protection for men accused of sexual violence. In Anil Dutt Sharma vs Union Of India & Ors (2015), a public interest litigant heard by the Delhi High Court reasoned that the high acquittal rate in sexual offences was evidence of the prevalence of false complaints. The need to protect men, vulnerable to these complaints, was said to warrant the extension of the marital rape immunity to “live in” relationships and to justify granting compensation for any hardship suffered by men acquitted of a sexual offence. Fortunately, the Delhi High Court rejected both arguments finding on the first issue that acquittals do not necessarily equate with innocence. The question of extending the marital rape immunity was thought to be a matter best left to the legislature.

Legislative intervention, however, has not been forthcoming. Implicit in politicians’ concerns about the “practical difficulties” (Rediff News, 2013) of removing the immunity is the apprehension that husbands would be unable to defend themselves against false charges. The third effect of the misuse argument thus becomes apparent: Women’s tendency to lie to the grave detriment of innocent men has become an excuse to deny extending to women their human rights. Explaining why the government decided against including marital rape in the 2013 criminal law amendments, the Law Minister stated “There is a need for introspection and reflection to ensure that laws are not capable of being abused. If there are gaps in the law, it can lead to gross violation” (Mandal, 2014, p. 262). This anxiety was also shared by 12 out of the 29 members debating the amendments in the Lower House of Parliament who voiced their concern over the potential for misuse of such laws by women (Mandal, 2014, p. 262).

Complication: India’s unique cultural context?

Publicly, the retention of the marital rape immunity has been justified on the basis of culture, tradition and the sacrosanctity of Indian marriage (Agnes, 2015a, p. 12). It is pertinent to point out here that the United Nation’s Convention to End All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence against Women (DEVAW) explicitly prohibit this use of “custom, tradition, or religious consideration” as excuses to deny women their human rights (DEVAW, Art 4; CEDAW, Art 5 (a)). Nevertheless, the rebuttal remains that India’s unique family dynamic is fundamentally different to that of other countries. This family dynamic means that women here are in fact more likely than not to lie about rape. As a result, laws advocated for in international human rights forums apparently cannot work in such a unique and family-oriented setting (Bedi, 2015).

As proof of the distinct dynamic surrounding complaints of sexual offending in India, I am routinely referred to India’s unique jurisprudence surrounding premarital sex litigation, popularly referred to as “rape by false promise.”

Rape by false promise of marriage

In most parts of India, there is significant social stigma surrounding premarital sex (see e.g., Moti lal v. State of MP, 2008) stemming from the prevailing ideology that a woman’s chastity is directly linked with the “integrity of the Indian family, culture, and nation” (Kapur, 2005, p. 36). As public sexuality (“i.e., consensual sex outside of marriage, same sex relations, or commercial sex”) is conflated with Western values, premarital sex is perceived by society as a direct affront upon Indian values and as such a family’s honour (B.G. Hirjibhai v State of Gurujat, 1983; Kapur, 2005, p. 33; Satyapal v State of Haryana, 2009). Loss of virginity often risks losing the respect of her own relatives, and it becomes “difficult to secure an alliance with a suitable match from an acceptable family” (B.G. Hiribhai v State of Gujurat, 1983). With marriage perceived as the “be all and end all of a woman’s life,” this consequence is seen as detrimental for women and their families (Agnes, 2015a, p. 13).

Responding to a need to protect vulnerable women from the extreme social consequences of premarital sex, the doctrine of rape by fraud has recently developed to criminalise the actions of men who “intentionally exploit vulnerabilities and lie to them in order to induce premarital consent” (Bronitt & Misra, 2014, p. 46). In 1984, the Kolkata High Court in Jayanthi Rani Panda v State of West Bengal was the first appellate court to consider the validity of consent when given in consequence of a false promise of marriage. In this case, a young girl alleged that she had been tricked into having sexual intercourse with the defendant who falsely promised to marry her. She came to learn of his deception when he left her after she fell pregnant. The prosecution relied on s 90 IPC, which provides that consent is vitiated when given under a misconception of fact, to argue that her consent was no consent at all. The lower court acquitted the accused on the basis that a false promise as to a future, uncertain date did not create a misconception as to a “fact” (Bala & Saha, 2008, p 151). On appeal, the High Court reached the same verdict, but disagreed with the trial court’s reasoning. They noted that s 3 (d) (Indian Evidence Act 1872) recognises as a fact “that a man holds a certain opinion [or] has a certain intention.” A lie, therefore, as to his present intention to marry her, would fit this description. Nevertheless, the prosecution’s case failed as there was no independent evidence that the accused had never intended to marry her. Simply changing his mind due to an unwanted pregnancy amounted to a “breach of promise.” Short of a “false promise,” this was not rape.

The Kolkata High Court’s reasoning in Jayanthi Rani Panda has been affirmed in a string of recent decisions by the Apex court (Uday v State of Karnataka, 2003; Deelip Singh v State of Bihar, 2005; Yedla Srinivasa Rao v State of AP, 2006; Pradeep Kumar Verma v State of Bihar & Anor, 2007; Deepak Gulati v State of Haryana, 2013). It is now settled law that where a woman’s consent to sexual intercourse was elicited through a fraudulent promise of marriage, the man will be guilty of rape. However, where the promise was made with “the best of intentions,” but is unable to be fulfilled due to unavoidable circumstances (including a change of heart), the accused will not be criminally liable (Deepak Gulati v. State of Haryana, 2013).

Some Indian legal feminists, however, believe that this category of “rape by fraud” should be excluded from the ambit of rape law. One view is that criminalising consent obtained in this way demeans women by implying that they are so victimised as to be incapable of exercising free choice (Basu, 2015, p. 200; Johari, 2014). In response, it is pertinent to note that this same argument was utilised to criticise the designation of “date rape” in the 1970s and 1980s. These criticisms were countered by pointing out that it “also demeans women to be raped and to be disbelieved because we do not hold men responsible for what they do with their penises” (Bourke, 2007, p 47). Furthermore, as Julie Stubbs explains:

We need to move beyond polarised debates that characterise women as either free agents empowered through choice or as too victimised to act in their own interests and to recognise agency as constrained by material circumstances and cultural narratives and practices (2007, p. 180).

In comparable common law jurisdictions such as Australia, England, and Canada, the legal position would likely be different (see R v Clarence, 1888; Papadimitropoulos v R, 1957). In those countries, cases of “rape by fraud” only rarely come before the court and it is apparent that not all lies to procure consent will vitiate consent (Crowe, 2014, p. 236). In India, however, females deceived in “rape by fraud” cases are usually very young, belong to the lower socio-economic strata and are often illiterate (Agnes, 2015b). Their “consent” to premarital sex is given within this web of values, practicalities, and relationships (Hudson, 2003).

Collection and analysis of judgments

The Delhi Commission for Women (DCW) reports that over half of the 250 cases reported nationally every month fall into the category of rape by false promise of marriage (Bronitt & Misra, 2014, p. 46). In fact, a survey of the Delhi District Court databases reveals that between October 2014 and October 2015, the District Courts heard over 110 cases where rape by false promise of marriage was alleged.² Despite their prevalence, these cases are characterised by low conviction rates, due in large part to the high number of witnesses who are declared hostile to the prosecution case; their testimony at trial materially contradicting their statement made to the police at the time of investigation. Out of the 110 cases heard by the Delhi District Courts, only seven ended in convictions.³ In 80 of the cases that resulted in acquittals, the prosecution witnesses denied that any crime had been committed against them.

This is not a phenomenon unique to India. Caroline Dunn explains that in Medieval England, many women who had initiated rape appeals later chose not to continue with prosecutions. This may have been due to fear that false allegations were unlikely to succeed, or it may also have been because the uncertainties, such as coercion, bribery or abduction, behind the scenes of the trial made pecuniary settlement or an offer of marriage a safer solution (Dunn, 2013, p 76). Similarly in India, practitioners and academics explain that most witnesses turn “hostile” having entered into compromises of marriage or other out-of-court settlements with the accused (Nagarathinam, 2015; Berti, 2010). According to Pratiksha Baxi’s empirical research on the rape trial, “compromise acts as a tool in the hands of defence lawyers and the accused to pressurise complainants and victims to change their testimonies in a court room” (Baxi, 2010, p 110). Police investigators, however, see compromise as the woman’s weapon, deployed to coerce the accused to marry her (Lahiri & Rana, 2013). When this outcome is obtained, there is no need to sustain criminal proceedings.

The details of the out of court compromise entered into however are not apparent from reading the court transcript. Since compromise in cases of rape is illegal (IPC 1860, s 213), the potential reasons for hostility are only exposed on the public record through denials to leading prosecution questions, often adhering to the following formula:

She denies the suggestion that she had stated to the police that rape was committed.

She denies that the accused raped her under the false promise to marry her.

She denies that she has forgiven the accused as he has married her.

She denies the suggestion that she is deposing falsely as she has been won over by the accused.

At trial, in order to explain the denial of earlier statements, the witness often deposes that she signed “blank pages” at the police station, and/or that her statements were made “at the instance of other people and in anger.” Having retracted her earlier allegations, the inevitable outcome follows – an acquittal. All that appears on the face of the record is that a complaint was wrongfully brought against an accused, who continues to benefit from the presumption of innocence. As a woman and her family’s initial statements to the police contradict their later testimony in court, the inference is that the woman and her family have lied in bringing the complaint.

This inference, unsupported by independent research or data, has been perpetuated and reinforced by members of the judiciary. Nivedita Sharma, Additional Sessions Judge in Delhi, has frequently used the witness’ denial of her original FIR to call into question the “veracity” of women as a class of witnesses. Her Honour presided over 22 cases alleging “false promise” in the case sample, and the transcripts show that she has ended the majority of her judgments reciting the following paragraph:

Here I would also like to mention that in recent times a new expression is being used for a rape victim i.e. a rape survivor. The prosecutrix, a woman or a girl who is alive, who has leveled allegations of rape by a man is now called a rape survivor. In the present case, the accused has been acquitted of the charge of rape, after trial, as the prosecutrix retracted and turned hostile. In the circumstances, such a person, an acquitted accused, who may have remained in custody for a considerable period during inquiry, investigation and trial and who has been acquitted honourably after the prosecutrix has deposed that he has not raped her and she had physical relations with him with her free consent, should he now be addressed as a rape case survivor? This leaves us with much to ponder about the present day situation of the veracity of the rape cases.

It is important to note that this observation is just one of many identical paragraphs recycled in judgments where the victim–complainant is declared hostile. Paradoxically, her Honour systematically pastes into paragraph 13 of these judgments that she has “heard arguments at length” and given her “conscious thought and prolonged consideration” to the case at hand (see [13] in State v Dimple Panchal; State v Mr Dhirendra Singh; State v Mr Pawan Kumar Morya; State v Randhawa Chandela; State v Rohit Kumar; State v Tanvir Ahmed; State v Tarun Kumar; State v Titu; State v Tofic; State v Yogesh Kumar Sharma see [12] in State v Pankaj; State v Shitanshi Patel; see [14] in State v Manish Kakkar; see [18] in State v Devraj). However, the script-like formula of each transcript beginning with a quote by Kurt Cobain, and ending with her considered view that “precious Court time should not be wasted” recording further evidence when the prosecutrix is hostile, gives the appearance of prejudice. This is especially so as the court may still convict the accused in situations where the leading prosecution witness has denied his or her initial allegation where there is sufficient evidence to do so (see e.g., State v Karan Bhasin, 2015).

Similarly failing to openly acknowledge the dynamics of compromise in rape cases, Virender Bhatt, District Judge in Delhi, has voiced that where a complaint of rape results in the marriage between the accused and the witness, “the irresistible conclusion [follows] that there is no truth in the prosecution case …. She had used the police machinery to create pressure upon the accused to marry her [in a] classic illustration of the misuse of rape laws” (State v Shyam Sunder, 23 February 2015).

It is true that out of the 82 cases before the Delhi District Court where the prosecution witness refused to testify against the accused, 37 women deposed that they had since married the accused and were now “living happily together in their matrimonial home.” That being said, however, reading these cases in line with their cultural context demonstrates that a legitimate complaint of rape and a subsequent compromise of requiring the accused to marry the woman are not mutually exclusive. In cases of sexual offences, the Supreme Court has recognised that other family members often bear the ultimate decision of whether taking the matter to court is the best course of action to restore family honour (Satyapal v. State of Haryana, 2009). Regardless of whether the sexual intercourse was forceful or obtained under false pretences, marriage as a solution to rape is frequently seen as the woman’s only option.

The idea that acceptance of marriage “settles” the wrong occasioned by rape accords with the historical notion that rape is not criminalised to protect the autonomy of individual women, but rather to “protect a father from the loss of a daughter’s value as a transferable asset” (Forster, 2009, p. 836). In India, this medieval view continues to prevail in many communities – a common solution for rape in informal community courts (known as the “Khap Panchayat” courts) is that the complainant marries the perpetrator (Deshpande, Mathur, Kislaya & Mazumdar, 2013). The “irresistible” conclusion that complainants who marry their alleged rapists are liars, therefore, ignores the prevalence and culture of compromise that “underwrites rape prosecutions” (Baxi, 2010, p. 207). This is a circular argument – these judicial statements both sustain and provide the evidence for the view that innocent men are vulnerable to false accusations.

Responding to the alleged increase in false allegations, the DCW released a report in 2014 which stated that 53% of complaints of rape filed between April and July 2013 were false (DNA India, 2014). As these conclusions are not based on convictions for perjury or malicious prosecution, we can only assume that none of the women whose complaints were assessed as false, benefitted from the procedural safeguards nor the presumption of innocence that come with the justice system. While the DCW explain that their conclusions are the result of “cross questioning” (Tewari, 2014), evidence suggests that “[i]n the context of sexual investigations, expectations of … guilt or innocence can have an effect on questioning style … in almost every professional domain” (Darwinkel, Powell and Tidmarsh, 2013, pp. 896–897). When the prevailing belief, sometimes expressed from within women’s rights and feminist organisations (Basu, 2011, p 188), is that women make false accusations, this may have had “a self-fulfilling prophecy effect” (Darinkel, Powell and Tidmarsh, 2014, p. 897). Importantly, international research on false allegations varies in terms of adopted and accepted methodologies, as well as definitions of what constitutes a “false” case (Rumney, 2006, p. 132). While the DCW’s results may be accurate, without a transparent and reliable methodology, these potentially destructive and far-reaching claims should not be so readily used to condemn women as a class.

How does the law affect police practice?

Pronouncements from the judiciary and respected organisations positioning women as a class of untrustworthy witnesses have also shaped police culture, which approaches victim reports of sexual assault through a lens of suspicion. In fact, I first became aware of the perceived widespread misuse of rape laws in India through a conversation with a police officer, who told me that false complaints are often picked up by a “sixth sense” acquired over years of experience. This claim to an “intuition” that determines a false complainant the moment she walks through the door, has been made by police officers internationally (Jacobs, 2013, p. 5). However, in India, such intuition has now been legally validated by the Supreme Court, whose recent judgments point to the tendency for laws protecting women in India to be misused.

Multiple empirical studies have identified those factors, believed by police to be probative of a “true” rape complaint. These include physical injuries, immediate reporting of the incident, limited or no previous sexual activity, and no prior social contact with the assailant (Feldman-Summers & Palmer, 1980; Du Mont, Miller & Myhr, 2003; Jordan, 2004, p. 66). Unsurprisingly, these factors align with the traditional rules of evidence, such as the desirability of corroboration, and directions relating to relevance of recent complaint and past sexual history to both the issue of consent and credibility (Henning & Bronitt, 1998). The reforms have attempted to restrict past sexual history from being admitted at the trial (Jordan, 2004, p. 73; Bourke, 2007, p. 28), though there remains an implicit model in all cases of sexual abuse that authentic “real” rape is based on one-off violent incidents with strangers, and a victim who promptly seeks to the report the crime to authorities. This ideal complainant however is a mythological product of nineteenth century English common law (Bourke, 2007) – in fact, victimisation research suggests that a complainant is much more likely to have been raped by an acquaintance, friend, relative, or partner (Jordan, 2004, p. 72) and then never have reported the abuse (Daly & Bouhours, 2010, p. 572; Palermo, Bleck & Peterman, 2014, p. 605).

In India’s current climate of denial, boyfriends and family members are presumed to be incapable of rape. Earlier this year, the India Times reported that the Mumbai Police Commissioner blamed false complaints and hostile witnesses for the low conviction rates in rape cases (Natu, 2013). In justification of this stance, the Police Commissioner referred to the high percentage of rape accusations against “boyfriends, relatives, and friends” (Natu, 2013), and in so doing equated accusations against family members with false complaints. The considerable media attention given to this issue reveals that many police officers share this view (e.g., Ansari, 2014; Prasad, 2013).

The prevalence of such prejudicial beliefs in policing weakens legitimate cases of rape in several ways. The first is that the scepticism towards women has shaped official policy and police “best practice” for dealing with crimes against women. In 1992, for example, the Deputy Inspector General of Police issued a directive that “unless women approach the police station with bleeding injuries, cases of harassment, and cruelty [under s 498 A] should not be registered” (Manohar, 2010, p. 25). Although this overtly discriminatory directive has since been withdrawn, gender prejudice continues to be influential in the investigative process. Perceptions of the truthfulness and probity of the complainant’s evidence influences the decision to pursue a case (Statewide Steering Committee to Reduce Sexual Assault, 2006; Powell, Murfett & Thomson, 2010) and how the investigation is conducted, including the “questioning style” utilised (Hill, Memom & George, 2008). The Human Rights Watch Report (2010) conducted into rape investigations in India indicates that the availability of forensic, medical evidence also influences the level of commitment with which the investigation is conducted (p. 6).

A second effect of these prejudices in policing crimes against women is that the investigating officers form the view that, in order for the story to be believed at trial, the complainant’s “story” must conform to the most credible rape narrative. As a result, the complainant with assistance of the investigating officer may seek to “enhance the brief of evidence” in order to secure a conviction. This enhancement may involve deliberate fabrication of evidence so that the account of rape will be more believable (Jordan, 2004, p. 72) and easier for the police to establish at trial.

An examination of the rape trial involving rape by fraud heard by the Delhi District Court (between 20 October 2014 and 20 October 2015) reveals that acquittals followed in cases where the complainant appears to have made significant subsequent “embellishments” to her initial allegation of rape. Out of the 110 cases before the Court, 20 cases were similar in supplementary facts emerging at trial that were not included in the initial, written complaint to police (usually alleging sexual intercourse on the pretext of a false promise of marriage). Later statements by way of FIR, in front of the magistrate, and/or at trial included allegations that the complainant had been raped by the accused while unconscious, having been drugged with a “stupefying” or “cold, intoxicating substance.”

Again, on the face of the transcript, the wider context in which these additions are made is hidden from the public. It is possible that these changes suggest the woman is deposing falsely, or perhaps as one witness explained during cross-examination, “she may have forgotten the said incident at the time” (State v Sanjeev Kumar, 2015). Empirical research, however, indicates that police officers are in fact applying an informal script when recording sexual assault cases – this same phenomenon of hundreds of rape victims being given “intoxicant laced cold drinks” having been discovered by The Hindu’s report into cases of “alleged elopement” (Rukmini, 2015; Baxi, 2010, p. 218). Although reasons for police scripting cases of false promise in this way are not explicit, it seems possible that it is in fact the failing, evidentiary requirements of the law that are determining police practice. The low conviction rate in these cases is caused not only by hostile complainants, but the difficulty in proving that the accused never intended to fulfil his promise when intercourse took place. This may be the impetus behind these complaints being “reframed” into cases of non-consent that appear easier to prove. Not only does an allegation that the woman was raped while unconscious, intoxicated by a stupefying substance, fall squarely within the fifth description provided for rape under s 375 IPC, but it also absolves the complainant of any complicity in the “shameful” act of premarital sex.

Assuming that police “embellishment” of the complaint is made with a view to bolstering the prosecution case and prospect of conviction, then paradoxically these efforts only damage the integrity of the investigative process, and undermine the complainant’s credibility further. The complainant’s inconsistent statements, with accounts varying from the complainant’s first statement to police, to magistrates and ultimately to the trial court, may strengthen the defence claim that her evidence is “untrustworthy” and/or that she has fabricated a false story, and ultimately lead to an acquittal.

Conclusion

Few people seem to be questioning the prevailing discourse in India surrounding the recent law reforms: the idea that women who report abuse cannot be trusted and laws enacted to protect women are widely misused with destructive consequences for men.

The recent amendments to the law have produced a backlash against reform – the police, judiciary, and media continue to sweep women who report abuse indiscriminately into a class of malicious false accusers. Even though both the legislature and Supreme Court have diluted overtly discriminatory evidentiary provisions such as the corroboration requirement, doctrine of recent complaint, and the uses to which past sexual history evidence can be put at trial, the position of a female alleging rape continues to mirror that of the nineteenth century English common law. Rather than recognise the cultural context that pressures women to recant or revise their complaints (namely the shame attached to premarital sex), the focus of injustice is shifted to the accused, who is presented as a victim of a malicious and false complainant. In this process, the police practices, as mediators in compromise or through enhancements to the brief of evidence, only damage the credibility of complainants further. This cycle of negative reinforcement not only adversely impacts upon access to justice for women, but also generates forceful resistance against enacting further protections for women advocated for in international human rights forums.

India’s reactive and piecemeal response to rape law reform has been ineffective. Rather than simply increasing penalties, the legislature needs to systematically target the gaps in the justice system (such as those created by archaic rules of evidence, and judicial prejudice), supporting women who report abuse and tackling the cultural context which shapes attitudes in the police, legal and wider community. The Indian legislature and judiciary need to account openly for the wider culture dynamics of sexual offending, and acknowledge that many acquittals and “hostile” witnesses are symptoms of a failing criminal justice system. Subverting the current discourse in this way would reshape both police culture and the law to a more progressive stance in relation to violence against women.