WOMEN, RAPE AND JUDICIAL PRONOUNCEMENTS

Subject: 5.4 Sociology-III

(Project Final Draft)

Submitted by
MUSKAN
UID No: UG21-72
BA.LL.B.(Hons) Five-Year Integrated Degree Course
Academic Year:2022-23
Year: III Semester: V

Submitted to

Professor Dr. Rajesh K.P.

Assistant Professor of Sociology

November 2023

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

Table of Contents

WOMEN, RAPE AND JUDICIAL PRONOUNCEMENTS..........................................1

Abstract..............................................................................................................................1

Introduction.......................................................................................................................1

Social Structure and Rape................................................................................................2

Sociological interpretation of judicial pronouncements of rape....................................5

Stereotypical perception of the victim of rape.................................................................6

Undermining the victim’s experience along with remarks of sexism.............................6

Conclusion..........................................................................................................................8

Bibliography......................................................................................................................9
 WOMEN, RAPE AND JUDICIAL PRONOUNCEMENTS

Muskan*

Abstract

Gender stereotypes and beliefs persist in the charging, trial, and sentence
phases of a rape trial, even in the face of statutory reforms. The purpose of this
essay is to investigate how judges' gender stereotypes affect the outcome of
rape cases that are heard by the Indian Supreme Court. In addressing the
aforementioned issue, the research uniquely combines a doctrinal method to
demonstrate the association between gender concepts and the trial's outcome.
It is a source-based study, meaning that the information is taken from written
sources including reports, papers, textbooks, and journals. Gender insensitive
remarks and the victim's age, marital status, and sexual history were cross-
analysed to see how they would affect the case's outcome and the verdict's
tone. The paper's findings show how ineffective the current legal system is at
eradicating assumed sexist biases when it comes to handling crimes against
women.

Introduction

There are two kinds of precedents: written and unwritten. Law digests might list
cases without taking into account the societal context in which they were found,
but as legal scholars, we also need to examine how unwritten precedent has
developed. Gender stereotypes and beliefs persist in the charging, trial, and
sentence phases of a rape trial, even in the wake of legal improvements. Gender
stereotypes are assumptions about what it means to be a man or a woman that are
"taught" by society.1 As a result of this process of social learning, these
expectations become ingrained in our personalities. Rape myths include things like
how a victim of rape2 should or should not react, what a perpetrator of rape would

1
Jennifer Temkin & Barbara Krahe, Sexual Assault and The Justice Gap: Question of Attitude
(Hart Publishers, Oxford, 2013).
2
Martha R. Burt, Cultural Myths and Supports for Rape, 38 J. Pers. Soc. Psychol. 217, 218 (1980).

1
do after the incident3, how judges view rape survivors who had an active sexual
history before the incident4, what impact the trial would have on the victim's
mental health, and the idea that women always physically resist rape 5, resulting in
injuries to their bodies and genitalia, among other things.

The purpose of this essay is to investigate how judges' gender stereotypes affect
the outcome of rape cases that are heard by the Supreme Court. These ideas are
based on a sexist view of gender, stereotypes about rape, and a deeply ingrained
sexism in the community.6 The method used in this paper to analyse obiter dicta is
distinctive in that it challenges the widely accepted practise of interpreting
Supreme Court rulings based only on figurative outcomes, such as convictions and
acquittals, trial lengths, prison terms for guilty parties, and the age of victims
reduced to numbers in a statistic, among other things.

Social Structure and Rape

Forcible rape is seen as a major social issue thanks to the efforts of the women's
movement. Feminist writers sparked a broad public and professional conversation
about rape as a manifestation of aggression and power in situations when social
groups are divided based on sexual orientation. Rose provided the following
summary of the feminist perspective of rape. According to feminist theory 7,
socialization and stratification around divergent sex roles in our culture directly
contribute to rape. Stereotypical beliefs about rape are said to have their roots in
traditional ideas about sex roles.
“For instance, it is thought that rape's continued status as a major social issue is
mostly due to the relationship between dominance and the male and female sex
3
“ Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in
India 5 (Cambridge University Press, Delhi, 2016).
4
Jennifer Temkin, And Always Keep a – Hold of Nurse, for fear of Finding Something Worse:
Challenging Rape Myths in the Courtroom, 13 New Crim. L. Review 710,715-16 (2010).
5
Jennifer Temkin, Rape and the Legal Process 256 (Oxford University Press, Oxford, 2006).
6
Marian Duggan, Rethinking Rape Law: International and Comparative Perspectives, 51 Brit. J.
Criminal., 616, 619 (2011).
7
Fonow, Mary Margaret, Laurel Richardson, and Virginia A. Wemmerus. ‘Feminist Rape
Education: Does It Work?’ Gender and Society 6, no. 1 (1992): 108–21.”

2
roles, respectively. Some believe society processes will continue to prepare women
to be 'legitimate' victims (seen as deserving, requiring, and/or wanting to be raped)
and men to be prospective offenders until patterns of socialization into traditional
sex roles are corrected.8 Additionally, it is believed that the widespread perception
of women as objects is a sign of the social construction of rape scenarios, which
arises from a failure to recognize women as human beings.

Conflict theorists that study sexual violence against women see sexual
stratification, social control over women, and sex role socialization as products of
capitalism's property-based economic structure9. As a result, rape law and criminal
justice practice focus more on punishing acts that violate the property rights of
some males over women, such as rapes of chaste victims, and less on acts that do
not (spousal rape, rapes of unmarried victims with prior sexual experience).
Moreover, the docile conduct purported to shield a woman from sexual assault
simultaneously serves to strengthen her inferior status in societal (marriage) and
financial responsibilities. Conflict theory suggests that a more equitable
distribution of goods, services, and power will replace private property ownership
and do away with the need for male social control over women through the use of
rape.10 Feminist analysis contends that educational, institutional, and legal reform
are necessary to end the sexism that encourages rape.

Rape victims, in contrast to victims of other crimes, are frequently held

accountable for the offence. The rape victim's credibility is more frequently
questioned by prosecutors than the reliability of victims of other violent crimes,
despite victim precipitation for rape crimes being less common than for other
violent personal crimes. Furthermore, the defendant's personality affects how rape
is processed.”

8
“ McPhail, Beverly A. ‘Feminist Framework Plus: Knitting Feminist Theories of Rape Etiology
into a Comprehensive Model.’ Trauma, Violence & Abuse 17, no. 3 (2016): 314–29.
9
Kreuzer, Peter. ‘Culture and Conflict Behaviour.’ Applying Theories of Ethno-Cultural Conflict
and Conflict Resolution to Collective Violence in Indonesia. Peace Research Institute Frankfurt,
2002.
10
Collins, Randall. ‘A Conflict Theory of Sexual Stratification.’ Social Problems 19, no. 1 (1971):
3–21.”

3
According to Barnett and Field 11 (1978), the reason respondents gave smaller
prison sentences to rapists who were socially and economically desirable than to
those who were not is likely to be because the defendants did not fit the stereotype
of a rapist. There was no discernible difference among the accused in burglary
instances. Differential justice processing may be explained by these disparities in
how criminals and victims are perceived according to the offence. For instance,
police cases involving rape and sexual assault are more likely to be dropped or
rejected due to a lack of proof.12 They also have a higher probability of leading to a
guilty plea or trial.

“Episode ending in forced intercourse when a female first agreed to sexual

relations, or clearly invited them verbally and through gestures, but then retracted
before the act” is the definition of victim-precipitated rape. Victim precipitation is
a more precise term than role-based attribution since it emphasizes the victim-
offender interaction that occurred at the time of the incident. From both points of
view, the perpetrator has less accountability, and the victim bears more of the
blame.

“Even though the theory of victim precipitation in rape has been refuted by
feminists, criminologists, sociologists, and psychiatrists, and empirical data, it is
widely believed·--·even by the victim. The myth is responsible for the negative
reactions of significant people and of the general population toward the victim,
and for her own feelings of guilt, even though unrealistic.”13

Evidence rules in common law statutes move the focus of attention from the
offender to the victim, according to surveys of criminal justice officials, the
tracking of cases through the criminal justice system, and analysis of decisions

11
“ Ghosal, Sarbani Guha, and Sarbani Guha Ghosa. ‘SOCIO-POLITICAL DIMENSIONS OF
RAPE.’ The Indian Journal of Political Science 70, no. 1 (2009): 107–20.
12
Weis, Kurt, and Sandra S. Borges. ‘Victimology and Rape: The Case of the Legitimate Victim.’
Issues in Criminology 8, no. 2 (1973): 71–115.
13
Gangoli, Geetanjali. ‘Controlling Women’s Sexuality: Rape Law in India.’ In International
Approaches to Rape, edited by Geetanjali Gangoli and Nicole Westmorland, 1st ed., 101–20.
Bristol University Press, 2011.”

4
made at specific systemic stages.14 For instance, juries are more forgiving when
there is proof of a prior victim-offender relationship or victim-contributory
behavior. Such information has affected even judges, who are supposed to be more
objective. Prosecutors polled in 1974 felt that while earlier chastity knowledge had
little bearing on bench trials, it did have an impact on jury trials.

Sociological interpretation of judicial pronouncements of rape

Even though the Supreme Court had decided in 1952 that the victim's testimony
may be the only basis for a conviction, it still felt the need to develop procedures to
determine how trustworthy she was.15 This was made possible in part by Section
155(4) of the Indian Evidence Act, 1872, which allowed the defence in a rape
prosecution to present evidence demonstrating the victim's overall "immoral
character" up to its repeal in 2003. Such facts about her character could be used to
suggest that her testimony was fraudulent.

The judiciary had interpreted the substantive law of rape in favour of the accused
up until the Tukaram v. State of Maharashtra16 decision. The stringent
requirements for confirmation, the victim's prior sexual history, and "consent"
were all interpreted to bring the greatest shame and humiliation upon the nation's
female citizens. Rape laws of the past mandated "resistance to the utmost." Judges
and prosecutors are alerted to this idea that any suggestion of permission, even
assent to a light friendship, would prevent the necessary degree of resistance from
being met. Thus, the strict requirement of lack of consent was required by rape
laws in general.

14
Whaley, Rachel Bridges. “The Paradoxical Relationship between Gender Inequality and Rape:
Toward a Refined Theory.” Gender and Society 15, no. 4 (2001): 531–55.
15
LeGrand, Camille E. “Rape and Rape Laws: Sexism in Society and Law.” California Law
Review 61, no. 3 (1973): 919–41.
16
Tukaram v State of Maharashtra (1979) 2 SCC 143.

5
 Stereotypical perception of the victim of rape

Judges' preconceived assumptions and biases led them to construct the stereotype
of the rape victim. As a result, the court disregarded the testimony of victims who
did not fit these preconceived notions and compared victims in individual cases
against them.17 Therefore, the judge's assessment of the victim's actions during the
rape and the trial determines whether or not to believe the victim. 18 Therefore, the
issue here is that, despite research showing that, while common patterns exist,
there are no "typical" replies, the Court anticipates a "typical" response from a
raped woman. In the recent case of Raja v. State of Karnataka19, this was noted by
Justice Amitava Roy, who cleared the appellants in a rape case.:

“Her post-incident conduct and movements are also noticeably

unusual. Instead of hurrying back home in a distressed, humiliated and
a devastated state, she stayed back in and around the place of
occurrence, enquired about the same from persons whom she claims to
have met in the late hours of night, returned to the spot to identify the
garage and even look at the broken glass bangles, discarded litter etc…
Her avengeful attitude in the facts and circumstances, as disclosed by
her, if true, demonstrably evinces a conduct manifested by a feeling of
frustration stoked by an intense feeling of deprivation of something
expected, desired or promised. Her confident movements alone past
midnight, in that state are also out of the ordinary… The medical
opinion that she was accustomed to sexual intercourse when admittedly
she was living separately from her husband for 1 and ½ years before
the incident also has its own implication.”

17
UNIFM/UNICEF, Kirti Singh’s Report on Law, Violence and Women in India (2002).
18
Stringer, Rebecca. “Vulnerability after Wounding: Feminism, Rape Law, and the Differend.”
SubStance 42, no. 3 (2013): 148–68.
19
Raja v State of Karnataka (2016) 10 SCC 506.

6
 Undermining the victim’s experience along with remarks of sexism

“Judges' harsh remarks that commoditize women, treat them like property, or view
them as liabilities seeking to associate with men who are superior to them in a
variety of ways are blatant examples of their sexist beliefs 20. A bench composed of
Justices M. Punchhi and K. J. Reddy decided whether or not the forced sexual act
claimed by the prosecutrix” was consenting in the case of Jagannivasan v. State
of Kerala21-

“There is evidence on the record that the appellant had been

employed in Dubai and presumably had mastered a handsome income
when compared to persons working in his home state. He was a
bachelor and obviously an attractive catch for girls in his
brotherhood to be bonded in matrimony…It would rather be safe to
lean in favour of the appellant and accord him the benefit of doubt.”

Judges frequently made remarks that downplayed the anguish experienced by the
plaintiff and wrote the ruling in an automated fashion. This may be seen in the case
of Baldev Singh v. State of Punjab22, where a bench made up of Justices
Marakanday Katju and Gyan Sudha Mishra referred to the gang rape as a “dispute”
and held that the act was committed 14 years prior-

“An application and affidavit have been filed before us stating that the
parties want to finish the dispute, have entered into a compromise on
1-9-2007, and that the accused may be acquitted and now there is no
misunderstanding between them.”

In the case of Bharwada v. State of Gujarat23, which was previously discussed, the
court reduced the convict's sentence from 24 years of rigorous imprisonment to the

20
PASCOE, C. J., and JOCELYN A. HOLLANDER. “GOOD GUYS DON’T RAPE: Gender,
Domination, and Mobilizing Rape.” Gender and Society 30, no. 1 (2016): 67–79.
21
Jagannivasan v State of Kerela (1995) Supp 3 SCC 204.
22
Baldev Singh v State of Punjab (2011) 13 SCC 705.
23
Bharwada v State of Gujarat (1983) 3 SCC 217.

7
15 months of rigorous imprisonment that he had already served. The reasoning
behind this was that the offender had already lost his job, experienced social
embarrassment, and his chances of finding a suitable match for his own daughter
were negatively impacted by the stigma associated with the guilt finding. It is even
more shocking that the man would act in a way that minimises the seriousness of
the crime, given that it was thought the man had sexually assaulted several girls
who were little more than ten or twelve years old.

Conclusion
“
Judges were found to have rigidly portrayed the stereotypical rape victim, to have
deeply ingrained sexism, to have a propensity for using improper and verbose
language, to have made comments that downplayed the seriousness of the incident,
and, on occasion, even some learned judges made gender-sensitive remarks—
though these were few and far between. Even in situations where the judiciary
makes an effort to adopt a victim-sensitive approach, their fundamental
misinterpretation of gender concepts causes them to perpetuate gender stereotypes
and further stereotype the roles of the perpetrator and the victim. In summary,
there is a stark contrast in the way society views rape and the victim of rape. In
addition to denouncing rape, society also denounces the rape victim. Remarkably,
there are situations when it is thought that the victim—by her words, actions, or
very presence—caused the rape.

In addition to perpetuating women's subordinate place in society, biased judicial

techniques also raise the important question of whether women can obtain justice
from a patriarchal system of justice administration that operates under the
assumption that women are less equal than males. Any attempt to justify rape
sentencing in India must take into account the harm caused by sexist rulings, as
they have a significant impact on society and establish precedents. It is impossible
to overstate the importance of this issue.”

8
Bibliography

 PASCOE, C. J., and JOCELYN A. HOLLANDER. “GOOD GUYS

DON’T RAPE: Gender, Domination, and Mobilizing Rape.” Gender and
Society 30, no. 1 (2016): 67–79.
 Jagannivasan v State of Kerela (1995) Supp 3 SCC 204.
 Baldev Singh v State of Punjab (2011) 13 SCC 705.
 Bharwada v State of Gujarat (1983) 3 SCC 217.
 UNIFM/UNICEF, Kirti Singh’s Report on Law, Violence and Women in
India (2002).
 Stringer, Rebecca. “Vulnerability after Wounding: Feminism, Rape Law,
and the Differend.” SubStance 42, no. 3 (2013): 148–68.
 Raja v State of Karnataka (2016) 10 SCC 506.
 Whaley, Rachel Bridges. “The Paradoxical Relationship between Gender
Inequality and Rape: Toward a Refined Theory.” Gender and Society 15,
no. 4 (2001): 531–55.
 LeGrand, Camille E. “Rape and Rape Laws: Sexism in Society and Law.”
California Law Review 61, no. 3 (1973): 919–41.
 Tukaram v State of Maharashtra (1979) 2 SCC 143.
 Ghosal, Sarbani Guha, and Sarbani Guha Ghosa. “SOCIO-POLITICAL
DIMENSIONS OF RAPE.” The Indian Journal of Political Science 70, no.
1 (2009): 107–20.
 Weis, Kurt, and Sandra S. Borges. “Victimology and Rape: The Case of the
Legitimate Victim.” Issues in Criminology 8, no. 2 (1973): 71–115.
 Gangoli, Geetanjali. “Controlling Women’s Sexuality: Rape Law in India.”
In International Approaches to Rape, edited by Geetanjali Gangoli and
Nicole Westmorland, 1st ed., 101–20. Bristol University Press, 2011.
 McPhail, Beverly A. “Feminist Framework Plus: Knitting Feminist
Theories of Rape Etiology into a Comprehensive Model.” Trauma,
Violence & Abuse 17, no. 3 (2016): 314–29.

9
 Kreuzer, Peter. “Culture and Conflict Behaviour.” Applying Theories of
Ethno-Cultural Conflict and Conflict Resolution to Collective Violence in
Indonesia. Peace Research Institute Frankfurt, 2002.
 Collins, Randall. “A Conflict Theory of Sexual Stratification.” Social
Problems 19, no. 1 (1971): 3–21.
 Jennifer Temkin, And Always Keep a – Hold of Nurse, for fear of Finding
Something Worse: Challenging Rape Myths in the Courtroom, 13 New
Crim. L. Review 710,715-16 (2010).
 Jennifer Temkin, Rape and the Legal Process 256 (Oxford University
Press, Oxford, 2006).
 Marian Duggan, Rethinking Rape Law: International and Comparative
Perspectives, 51 Brit. J. Criminal., 616, 619 (2011).
 Fonow, Mary Margaret, Laurel Richardson, and Virginia A. Wemmerus.
“Feminist Rape Education: Does It Work?” Gender and Society 6, no. 1
(1992): 108–21.

10