While the neighboring country clamors for death penalty over a high profile gang rape in their capital, which shocked and shamed the entire country, closer to home we have also completed the sixteen days campaign on Violence Against Women even as Shiba Hashmi succumbed to her burns. Should not our national shock and shame at our failure to protect women subjected to criminal violence every few hours be reason enough for national outrage?
Why should it take the uterus and intestines to be yanked out of a 23-year-old’s abdomen for the society to be convinced that a rape actually took place? Why is it that a 16-year-old must be set on fire resulting in third-degree burns and left to die an agonizing death before we recognize that violence against women exists in our society? Our collective conscience takes a backseat when Aruna Shaunbag lies in a vegetative state for forty years. Where is the furor when so many rapes go underreported every day and every few hours and rape victims succumb to their fates of lifelong stigma, ostracization and victim blaming? Why don’t so many of these incidents our news media is littered with touch our collective conscience in quite the same way?
THE TIMES OF INDIA
When gang rape of a law student from Nepal occurred in Bangalore two months ago, the media quoted ‘unnamed skeptical sources’ because she did not bear extensive physical injuries on her body. It is as if we, as a society, want the victims to suffer and die in agony! We enjoy this perverse voyeurism. Anything less gruesome will not be sensational enough for our collective conscience to be outraged.
It is common knowledge that rapists get violent when angered. The self-defense that women are taught can be used up to an extent and then it’s commonsense and presence of mind that can make a difference between life and death. If someone survives a robbery they are termed a hero, but rape survivors are made to bear the brunt of social stigma that is more criminal and oppressive than the original crime of rape.
The fact is that rape laws were never meant for women, to provide them justice or to protect them. They were written keeping the men at the center. Rape has always been seen by a patriarchal society as violation of the men folk’s honor or property, instead of a crime against the victim. This is why we want to keep the crime under wraps to protect the ‘honor’ of the family, the nation or the organization, as was done in the case of Suntali Dhami. How the higher-ups in the police tried to cover up the case, making the fight for justice longer and harder for the victim, with the excuse that police force would be dishonored, was inexcusable.
Such a perspective where the crime of rape is more of a violation of men’s honor rather than a crime against the victim and the widely prevalent rape myths are largely responsible for the widespread lenience to violence against women and lack of public outrage. The attitude in the media, in the judiciary, and in people’s minds has to change.
She was walking alone. She was out late at night. She was dressed provocatively. She was promiscuous. She had been flirting. She was at a party. She had been drinking. She didn’t fight hard enough… So she was asking for it...
How about changing those all-too-common excuses for a rapist’s behavior to the following: He raped her. It was his fault. He must be punished accordingly. There is no justification for rape nor is there ever an ‘intent-less’ rape caused by ‘negligence’. Every rape is just as traumatic to the victim, irrespective of the circumstances. It can never be graded a lesser crime or a greater crime.
A woman cannot be deprived of her right to protection under the law, just because of the way she dresses or behaves. The fact that a woman is out late alone, or at a party, or dressed in a certain way, does not automatically mean that she is looking for sex. Is someone wearing a Rolex watch asking to be robbed?
The calibration of sentences and punishment for the crime of rape in Nepal is a classic case of this attitude which perpetrates rape myths. It has presumably borrowed the concept of grading from the jurisprudence of murder, homicide and manslaughter and tried to classify rape according to degree of justifiability. A rape is a rape, there is no justification for it. It is a mockery of criminal law system to harbor the concept of ‘excusable’ or ‘justifiable’ rape or a ‘legal’ or ‘illegal’ rape or ‘voluntary’ or ‘involuntary’ rape, or to try to calibrate rape in any other way! Grading the sentences for the crime of rape based on age or whether the woman was promiscuous, prostitute or old enough and habituated to sex is equivalent to grading women as if they were rotten apples.
There can be no defense based on the fact that the rapist lacked ‘intent’ or that it was caused by ‘negligence’, no leniency because the victim was promiscuous, dressed or behaved provocatively! Equally ridiculous is the idea that when a prostitute gets raped it somehow becomes a lesser crime.
Legislators and the criminal justice system in Nepal need to get out of their medieval mindset. It is a long way to go for Nepal, which has no legislative equivalent of the landmark Mathura case in neighboring India which led to the amendment of their Evidence Act. It now provides that if a woman states that that she did not consent, Indian Courts shall presume that she did not consent. Being ‘habituated to intercourse’ or bearing ‘no physical marks of injury’ or not having ‘raised an alarm’ does not amount to consent.
The sixteen days of campaign against VAW is not an end but a beginning and there is no room for complacence unless suitable legal reforms are in place.
The author is a lawyer and journalist based in Brussels