Perpetuating myths of women as false complainants in rape cases in India: culture V. The law

ABSTRACT

Despite public outrage over our global “rape culture,” sexual offences continue to be characterised by low levels of reporting, prosecution, and conviction in many countries. Attrition rates for sexual assault internationally, although varying in pattern, are consistently high. As a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Declaration on the Elimination of Violence against Women (DEVAW), the Indian Government acknowledges the need to afford better protection to victims of gender violence. Assessing the effect of rape law reform in India, using crime statistics and a survey of recent judgments from the Delhi District Courts, the author argues that the legislature has failed systematically to address the many injustices experienced by women who allege rape. The Indian Parliament responding to the moral panic generated by the Delhi gang rape case with knee-jerk reforms, focused mainly on increasing penalties, maintaining an outmoded view of rape as a crime against morality rather than as a violation of gender rights and human rights. By closely investigating the sociocultural context in which sexual crimes against women occur in India, the author reveals that India’s “cultural” arguments for rejecting further reform (such as repeal of the marital rape immunity) are merely entrenched gender biases, bearing strong parallels to nineteenth century English common law perceptions of women who allege rape as a class of false complainants.

KEYWORDS:

• Sexual assault
• law reform
• India
• rape
• false complaints
• domestic violence

Acknowledgements

The author would like to thank Dr Ashutosh Misra for all of his support and guidance and Meadow O’Connor for her research assistance. Special thanks goes to Professor Simon Bronitt – without whom, neither this paper, nor this research would have been possible. Of course, any error(s) are the author’s exclusively.

Notes

1. The specific sections of the IPC that would likely apply were: (Indian Penal Code 1860) ss 498A (Wife subjected to cruelty by husband or in-laws), 326 (Voluntarily causing grievous hurt), 504 (Intentional insult with intent to breach peace), 506 (Punishment for criminal intimidation).

2. Indian Kanoon and SCC Online databases were searched using terms “rape,” “false,” and “promise.” Results were limited to cases heard in the Delhi District Courts between 20 October 2014 and 20 October 2015. Upon a close reading of the 130 results, 110 were cases where rape by fraud was alleged.

3. See State v Karan Bhasin (20 October 2015), State v Kamaluddin (24 July 2015), State v Chanderhas Yadav (3 December 2014), State v Gurbachan Singh @ Manny (13 July 2015), State v Prashant Kaushal (24 April 2015), State v Rajiv Mourya (8 April 2015), State v Raju (29 October 2014), State v Sarwan Kumar (28 April 2015), State v Akshay Kumar S/O Sh. Prithivi (22 January 2015).

4. All of the following cases heard by the Delhi District Court are acquittals where the witness was declared hostile: State v Shitanshu Patel (28 September 2015), State v Devraj (9 January 2015);State v Mr Dhirendra Singh @ Siddharth (26 March 2015), State v Ashish Mishra (5 August 2015;) State v Tanvir Ahmed (10 February 2015), State v Tarun Kumar (18 February 2015), State v Mr. Manish Kakkar (29 October, 2014), State vs Nitin @ Nakul @ Nitesh (29 October, 2014), State v Dimple Panchal (27 January, 2015), State v Mr.Vinod @ Tony (27 March, 2015), State v Amit Kumar Arora (29 January 2015), State v Titu & Ors (5 June 2015), State v Vinay Malik (14 January 2015); State v Rohit Kumar @ Lucky (27 May 2015), State v Vijay Kumar (23 December 2014), State v Mr Pawan Kumar Morya (23 March 2015), State v Ajay Parasar (5 January 2015), State v Tarun Verma D/O Sh. Ram Chander (27 May 2015), State v Tofic (29 May 2015), State v Asif Ali @ Raja (15 October 2015), State v Satish Dhawan S/O Ram Bohari (26 September 2015), State v Shailender Soni (28 May 2015), State v Yogesh Kumar Sharma (6 February 2015), State v Praveen Gupta (17 April 2015), State v Mohd Zillurrahman (2 March 2015), State vs . Ajay Meena (28 February, 2015), State v Swaraj padhi & Saurav Padhi (2 May, 2015), State v Rocky (25 March 2015); State v Anil Kumar Shukla @ Sonu (9 February 2015), State v Vinod Kumar(10 February 2015), State v Sunil Kumar (9 March, 2015), State v Narain Chhudali and Ors (21 July 2015), State v Manoj (4 February 2015), State v Hariom (4 August 2015) State v Dhirender Kumar (16 February 2015), State v Lakhan Mandal (23 March 2015), State v Sonu @ Deepak Singh (31 January, 2015), State v Vinod Kumar Sen (29 April, 2015), State v Amit Kumar (22 November 2014), State v Pawan Kumar (7 April 2015), State v Manoj Kumar (18 April, 2015), State v. Prakash Chand Pradhan (3 June, 2015), State v Avnish Kumar (16 January 2015), State v Amit S/O Sita Ram (30 October 2014), State v Arun Tiwari (22 April 2015), State v Rajeev Haldar (28 July 2015), State v Miket Ranpara (30 September 2015), State v Sameer Jagga @ Candy (9 October 2015), State v Madhup Sharan Shrivastava (15 November, 2014), State v Ravi Sikander Anand (29 May, 2015), State v Ram Prasad (19 February, 2015), State v Vinayak Sahi (8 January, 2015), State v Alim (15 November 2014), State v Jaicky Kumar S/O Sube Singh (12 February 2015), State v Shivam Mishra (16 May 2015), State v Mohd. Abrar S/O Mohd. Afzal (22 December 2014), State v Vikas @ Vicky (17 October 2015), State v Lalit @ Ajay @ Pinku (25 April 2015), State v Rhandawa Chandela (25 May 2015), State v Pankaj (24 September 2015), State v Vinay Sharma (21 September 2015), State v Anurag and Another (18 December 2014), State v Sandeep (29 May 2015), State v Hardeep Kundu (6 August 2015), State v Sonu S/O Munna Lal(19 November 2014), State v Subhash (13 July 2015), State v Shambhu Nath Yadav (21 October 2014), State v Pintu Kumar (16 December 2014), State v Sunil Kumar s/o Mahender Singh (9 April 2015), State v Heera Prasad (12 December 2014), State v Parvez Ahmed Lone (8 April 2015), State v Mukesh (27 July 2015), State v Rahul Yadav (24 July 2015), State v Julfikar (31 March 2015), State vs Chandan S/O. Satya Narayan (6 January, 2015) State v Deepak Khanna (1 April 2015), State v Manoj (5th August 2015), Rajoo v State of Mp (26 February 2015), State v Gulbahar Ali Raju & Anor (20 October 2015), State v Vivek Aggarwal (20 October 2015).

5. See, for example: State v Tanvir Ahmed (10 February 2015); State v Rohit Kumar @ Lucky (27 May 2015), State v Titu & Ors (5 June 2015), State v Tarun Kumar (18 February 2015), State v Mr Pawan Kumar Morya (23 March 2015), State v Tofic (29 May 2015).

6. State v Manoj Kumar (18 April, 2015), State v Alim (15 November 2014), State v Vikas @ Vicky (17 October 2015), State v Sandeep (29 May 2015), State v Amit Kumar (22 November 2014), State v Narain Chhudali and Ors (21 July 2015).

7. See, for example, State v Tanvir Ahmed (10 February 2015), State v Tarun Kumar (18 February 2015), State v Randhawa Chandela (25 May 2015), State v Punkaj (24 September 2015), State v Devraj (09 January 2015), State v Ashok Kumar (8 August 2014); State v Rohit Kumar @ Lucky (27 May 2015), State v Mr Manish Jajjar (29 October 2014), State v Tofic (29 May 2015), State v Harminder Singh (4 June 2014), State v Nirav Panchal (14 August 2014), State v Surender & Ors (26 July 2014), State v Mr Pawan Kumar Morya (23 March 2015), State v Rahul Gambhir (03 July 2014), State v Dimple Panchal (27 January 2015), State v Amit @ Shri Bhagwan (19 August 2014), State v Mr Dhirendra Singh @ Siddharth (26 March 2015), State v Titu & Ors (05 June 2015), State v Ashwani Jaswal (25 August 2014), State v Yogesh Kumar Sharma (6 February 2015), State v Shitanshu Patel (28 September 2015) Delhi District Court, State v Gulbahar Ali Raju & Anr (20 October 2015).

8. State v Shitanshu Patel (28 September 2015), State v Ashish Mishra (5 August 2015), State v Tarun Kumar (18 February 2015), State v Mr. Manish Kakkar (29 October, 2014); State v Titu and Ors (5 June 2015), State vs Rohit Kumar @ Lucky (27 May 2015), State vs Vijay Kumar (23 December 2014), State v Mr Pawan Kumar Morya (23 March 2015), State v Ajay Parasar (5 January 2015), State vs Tofic (29 May 2015), State v Satish Dhawan S/O Ram Bohari (26 September 2015), State v Shailender Soni (28 May 2015), State v Praveen Gupta (17 April 2015), State v Mohd Zillurrahman (2 March 2015); State v Anil Kumar Shukla @ Sonu (9 February 2015), State v Vinod Kumar (10 February 2015), State v Narain Chhudali and Ors (21 July 2015), State v Manoj (4 February 2015), State v Lakhan Manda, (23 March 2015), State v Amit Kumar (22 November 2014), State vs . Prakash Chand Pradhan(3 June, 2015), State v Amit S/O SIta Ram (30 October 2014), State vs Madhup Sharan Shrivastava (15 November 2014), State v Ravi Sikander Anand (29 May, 2015), State v Ram Prasad (19 February, 2015), State vs Vinayak Sahi (8 January, 2015), State v Jaicky Kumar S/O Sube Singh (12 February 2015), State v Shivam Mishra (16 May 2015), State v Mohd. Abrar S/O Mohd. Afzal (22 December 2014), State v Vikas @ Vicky (17 October 2015), State v Pankaj (24 September 2015), State v Anurag and Another (18 December 2014), State v Subhash (13 July 2015), State v Pintu Kumar (16 December 2014), State v Sunil Kumar s/o Mahender Singh (9 April 2015), Rajoo v State of Mp (26 February 2015), State v Gulbahar Ali Raju & Anor (20 October 2015).

9. State v Shitanshu Patel (28 September 2015), State v Tarun Kumar (18 February 2015), State v Ajay Parasar (5 January 2015), State v Rocky (25 March 2015), State v Vinod Kumar (10 February 2015), State v Pawan Kumar (7 April 2015), State v Manoj Kumar (18 April, 2015), State v Madhup Sharan Shrivastava (15 November, 2014), State v Ram Prasad (19 February, 2015), State v Vinayak Sahi (8 January, 2015), State v Vikas @ Vicky (17 October 2015), State v Sandeep (29 May 2015), State v Heera Prasad (12 December 2014), State v Rajeev Haldar (28 july 2015), State v Abhishek S/O late Sh. Jitender (3 November 2014), State v Rajeev Kumar Sharma (30 March 2015), State v Shyam Sunder (23 February, 2015), State v Rohit @ Rameshwar (18 November 2014), State v Sanjeev Kumar (1 April 2015), State v Gaurav (4 March 2015).

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Zoe Brereton

Zoe Brereton is an undergraduate student studying BA/LLB (Hons) from the University of Queensland and is working as a legal research assistant for Prof Simon Bronitt (T.C. Beirne School of Law, UQ) focusing on sexual offences in both India and Australia. From July 2015 to July 2016, Zoe was the recipient of the Australian Government New Colombo Plan Fellowship to India and spent a semester studying at Jawaharlal Nehru University. In 2016, Zoe undertook a research internship with O.P. Global Jindal University’s Human Rights Studies Centre and later worked as a legal intern for Justice Gita Mittal, Delhi High Court.