Copyright © Shutterstock; All Rights Reserved

Why Rape Laws Should Address a Woman’s Moral Character360°ANALYSIS

Laws on rape do not usually refer to the “moral character” of the victim, presumably because it is generally not relevant to the crime. Moreover, the phrase itself is an anachronism, besides being vague and hard to pin down. But it is time that rape laws did refer to a woman's moral character – specifically to prohibit references to it in court during prosecution of cases involving rape.

On February 2, 2013, the Indian government passed an Ordinance tightening rape-related laws – hopefully, a first step towards their comprehensive reform. A key measure has been the amendment of the Indian Evidence Act (1972) to disallow evidence, or cross examination, on the character or sexual past of the victim to establish consent.

That a woman's “moral character” or sexual past does not justify rape goes without saying. Except that it does not – not for a lot of people, in many countries of the world: The view that raping a sexually active woman is less of an offense is frighteningly common and prosecution for rape often turns on the need for the victim to prove that she did not "have it coming."

The idea that raping a promiscuous woman is less of a crime than raping a virgin derives from the idea that rape damages, not so much the woman, but her sexual purity. This also underlies the idea that rape “ruins” a woman. A recent survey showed that over 67% of men and 59% of women in India subscribe to this view. This view is neither new, nor specific to India.

Scholars note that during ancient times, rape was seen as a theft of sexual property, where the woman was the form of the "property" and its owner was her husband or father. Punishment for rape could range between death and payment of compensation, payable to the male guardian depending on the value of that “property” – a virgin being more valuable than one who is not.

In medieval Saxon law, too, the punishment for rape varied, as the victim was “… married or a widow living a respectable life, a nun or a matron, a recognized concubine or a prostitute plying her trade without discrimination of person …” It was only under the Statute of Westminster in the 13th century that rape became a punishable offense regardless of the “type” of the woman.

While laws no longer view women as properties of men, many countries (including India) do not recognize marital rape. The implication is that, in marriage, the woman gives up her sexual and physical integrity to her husband: she becomes his sexual property.

Even in developed countries that recognize marital rape, beliefs about a woman's past behavior mitigating the seriousness of rape do exist. A recent study of sexual assault cases in the United States shows that in cases where the accused was known to the victim, the prosecutor's decision to charge the accused is often influenced by legally irrelevant factors such as the victim's prior criminal record, whether she had been drinking alcohol before the assault and whether she had invited the accused into her home. This is likely because juries are less likely to convict the accused in the presence of such factors. In many other countries, the police might question the victim's “innocence” and even refuse to register a case.

Such unspoken beliefs about a woman's role in rape surfaced in the aftermath of the gang rape of a 23-year-old woman in New Delhi last December and her subsequent death. The chief of Rashtriya Swayamsevak Sangh, a right wing political organization, said that rapes happen in urban India not in rural India, implying that rapes happen when women adopt western lifestyles with its Western influences, not in traditional or rural India. This is factually incorrect. But the idea that rapes occur when women dress provocatively or adopt western lifestyles is a commonly held one, even among the educated and it places the onus of evading rape on women. To counter this idea, the women's groups participating in the massive protests in New Delhi framed the agenda of the protests to address the bigger question of women's freedom: Freedom to be out late at night, freedom to dress as they please without becoming fair game for rape. New Year’s Eve saw midnight marches in New Delhi and other cities to “take back the night.”

It is good when a repressive society gives voice to its reactionary beliefs. Unspoken beliefs cannot cause outrage or protests. Yet, they continue to affect people and institutions, whereas those spoken out loud can create opportunity for protest and change. It is telling that, preventing the use of inferences about a victim's character (to prove consent) was recommended as far back as 1980 in the report of the Law Commission, a body appointed by the Government of India. Consequent to the nationwide outrage, it was enacted only now, three decades later. All the while, victims of rape continued to be harassed and humiliated by the police and in the court.

This holds true in many countries with traditional patriarchal societies. For instance, in Bangladesh and Sri Lanka, the original Evidence Act, which affects prosecution for rape, dates back to 1872 when it was adopted under British colonial rule. It continues to allow questioning of the victim's moral character during trial for rape.

To be fair, rape laws in most countries do not make exceptions for a woman's character. In the absence of such exceptions, there is no mitigation of the perpetrator's culpability based on the victim's past. But beyond the letter of the law lies the other reality where a woman's perceived, or actual, promiscuity, or permissive lifestyle, absolves a rapist of blame in the eyes of society. Not addressing these prejudices explicitly, enables them to persist.

In May 2012, the Indian Supreme Court ruled that, “Even in cases where …[THE] victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or a women of “loose moral character” can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape for any reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone.”

Viewed outside of the social context within which these discussions were rooted, this judgment seems blindingly obvious, almost banal. Therein lies the rub; sometimes the obvious needs to be stated, not merely stated, but codified within law. Especially when lives are changed and justice denied because the obvious is not quite that obvious to all.

The views expressed in this article are the author's own and do not necessarily reflect Fair Observer's editorial policy.