Feminism and Its Discontents: Punishing Sexual Violence in India

Mapping Feminist Responses to the Verma Committee vis-à-vis the Definition of Rape

Regarding rape, the most common demand made by feminist groups was for expansion of the definition of the offence. They suggested amending the law so as to change its approach towards sexual violence against women by changing the law’s vocabulary and rejecting archaic terms such as ‘rape’, ‘ravishment’ and ‘outraging the modesty of women’. Instead, feminists argued for the use of the term ‘sexual assault’. For feminist groups, this move was a step towards legal recognition of the bodily autonomy of women, moving away from British colonial concepts of virginity and the honour, chastity and modesty of women. This, however, was only the first step in the sweeping changes suggested to the laws surrounding sexual violence. The common thread that ran through the responses of the various feminist organizations and individuals was the demand to expand the definition of rape (or, as suggested, sexual assault) to include non-penile penetration, such as insertion of objects or fingers into the vagina or anus of a woman. Some groups also suggested including non-consensual oral sex within the ambit of this definition. ¹¹ These suggestions emanated from the women’s groups’ experience in working closely with survivors of sexual violence, who had been subjected not only to penile penetration but also to various other forms of humiliation and injury, such as the insertion of objects into their genitalia. This suggestion also stood out among others given the fact the Delhi gang-rape case involved mutilation of the victim by insertion of iron rods into her vagina and intestines; it was thus necessary to include such acts within the definition of sexual assault to recognize that the offence may not necessarily be motivated by lust, but more by the power that men have enjoyed over women in a patriarchal society.

Closely linked to this was the feminists’ demand to expand the scope of the provisions on aggravated sexual assault. While custodial rape was already recognized as an aggravated form of rape under existing penal provisions, experiences of women’s groups showed that crimes of sexual violence were committed with impunity against women by branches of the state machinery, such as the military and paramilitary forces, under laws that include the Armed Forces Special Powers Act (AFSPA), 1958 (Kannabiran & Menon, 2007). ¹² The perpetrators enjoyed impunity because, within the meaning of the law, prosecuting them required state sanction, as they were public servants. ¹³ Thus, it was logical for feminist groups to demand that such acts of sexual violence be covered within the ambit of aggravated rape, and that the requirement of sanction for prosecuting the perpetrators be removed.

Also in their experience, when interacting with the law, women’s groups had found that a vast majority of acts of sexual violence perpetrated against women was not recognized by law. In the few cases where they were, such acts came under the umbrella of ‘outraging the modesty of a woman’, and attracted a maximum penalty of two years’ imprisonment. For women’s rights activists and lawyers, this was unacceptable as it did not reflect the reality of sexual violence faced by women in India. Women’s groups demanded, therefore, that these acts be recognized and graded by varying degree and kind in terms of the harm that they inflict on women. Thus, the responses were rife with demands to include and grade acts such as the groping and pinching of women as well as non-contact acts such as flashing, stalking and blackmail via electronic media, for example by SMS or MMS. ¹⁴ For feminist groups, the recognition of these acts as offences and their gradation was important as they believed that criminalizing the sexual nature of these acts would be a step towards the recognition of a woman’s right to bodily autonomy and integrity.

Along with demands to change the vocabulary and definitions of sexual violence offences, feminist groups also demanded a change in the definition of consent. Having seen the pernicious ways in which courts acquitted the accused in cases of sexual violence, presuming consent based on the woman’s past sexual history or character or even on her lack of physical resistance, this was a necessary move by feminist groups to ensure women’s sexual and bodily autonomy (Baxi, 2016; Satish, 2017). Therefore, a large part of their demand comprised the recognition of consent as an unequivocal willingness to engage in sexual acts, irrelevant of other extraneous considerations, such as the conduct of the woman or her relationship with the perpetrator, bringing it closer to the affirmative consent standard. ¹⁵

Mapping the Position of Indian Feminists vis-à-vis Punishment for Rape

The 15 groups that submitted their suggestions for the definition of rape also discussed the issue of appropriate punishment for sexual violence. All of them expressly stated that they were against the death penalty. Seven organizations did not take any further position on the issue of punishment for rape violence, ¹⁶ while eight demanded life imprisonment without remission or parole (LWORP) in cases of aggravated rape. ¹⁷ Although none disagreed with the LWORP recommendation, some disagreement may be inferred from the silence of the seven organizations on this point.

Clearly discerned in the arguments of the Indian women’s rights and feminist groups against the use of capital punishment for sexual offences, as recorded in their responses to the Verma Committee, is their disenchantment with the state. For instance, all feminist groups opposing capital punishment refer to it as a cruel punishment and one prominent group elaborated on this by saying that their collective rage against the heinousness of sexual crimes cannot give way to ‘new cultures of violence’ and allow state-sanctioned killings. For several groups, problems with the death penalty stemmed from the state being given the power to kill its own citizens. Drawing parallels with AFSPA, which allows members of the armed forces to kill people with impunity in conflict zones such as Kashmir and the North-East, these groups protested vehemently against state-sanctioned killings in their responses to the Verma Committee. ¹⁸ Broadly, the underlying theme of their sub-arguments was that the death penalty is itself a cruel and unusual punishment, and the state cannot be given more power to exert over its citizens.

Another recurrent argument, reflective of the Indian women’s movement’s scepticism of state power, pointed to the state’s frequent use of the death penalty to distract attention from ‘real issues’. ¹⁹ Feminist groups, in their responses to the Verma Committee, also demanded that the state invest more in the prevention of crimes rather than dealing with crimes only post-offence. Notably, this came from the same groups that had emphasized the need for strengthening existing mechanisms relating to prosecution, police accountability and trial processes.

Other arguments put forth by feminist groups against the death penalty reflect their general experiences with the failure of the criminal justice system. For instance, they argued that the introduction of harsh punishments to the system could potentially result in a decline in the conviction rate, as judges would be unwilling to impose strict penalties on all offenders. ²⁰ Interestingly, all of them highlighted this problem, especially in the context of custodial crimes, because their experience of the poor implementation of law reform showed an abysmal rate of conviction for such crimes (Murthy, 2006; PUDR, 1994). Feminist groups were also wary of capital punishment because, they argued, relying on statistics from the USA, that it was mostly imposed on marginalized communities. ²¹ They also averred that there was no statistical backing to claims that the death penalty has a valuable deterrent effect, ²² and thus pulled away from the populist demands to ‘hang the rapists’, a very common call in the protests that followed the December 2012 gang rape in Delhi.

Further, feminist groups built on their professional experiences to point out that where the perpetrators of rape were known to the women, the introduction of the death penalty would see a fall in the rate of crimes reported. This is because women would be unwilling to place the threat of the gallows over their own relatives or acquaintances. ²³ Feminists also highlighted the impact that such executions could have on the mental health of the survivors and the possibility of psychological trauma resulting from causing the death of known persons. Feminist groups who made submissions to the Verma Committee also distanced themselves from a traditional patriarchal view of rape as a ‘loss of honour’ and a ‘fate worse than death’, arguing that the endorsement of the death penalty for rape reflected such a view, as it amounted to deeming rape as the worst possible crime. ²⁴

As for punishment for sexual offences which do not amount to rape, rather than demanding particular years of imprisonment, these feminist groups instead asked for a gradation of the sexual offences on a continuum based on the varying degrees of harm, humiliation and degradation caused. The underlying assumption was that not all crimes inflict the same degree of harm on the victim; therefore, the feminist groups argued for the punishments imposed to be scaled up or down, depending upon the degree of harm inflicted.

Disconnect in the Feminists’ Demands for Defining and Punishing Rape

The fine-tuned and well-reasoned arguments of the Indian feminists became the voice of reason at a time of shrill nationwide protests that demanded retribution for the Delhi gang rape (Kotiswaran, 2018). Indian feminist groups not only built their arguments from their experiences of working with survivors of sexual violence, but also from their interactions with the criminal justice system, which had left them disillusioned with the state and wary of giving more power to state institutions.

Yet, as discussed above, Indian feminists did not completely give up relying on the state’s punitive projects, and their demands for punishment for sexual offences stand in stark contrast to their detailed and elaborate arguments opposing capital punishment. For instance, among the recommendations submitted to the Verma Commission, all groups that opposed the death penalty unhesitatingly endorsed LWORP in cases of aggravated rape. ²⁵ They also demanded that rape committed in custody, during communal and caste violence, by persons in positions of power, be defined as aggravated rape. Prior to this, aggravated rape attracted a maximum penalty of life imprisonment, but with the option of remission and parole. ²⁶ Thus, in their demand for LWORP for such cases, feminist groups were seeking harsher punishment for powerful men accused of rape, and attempting to break the cycle of impunity attached to such crimes. Their frustration, arising from state inaction against custodial rapes and rapes against women from low castes and religious minorities, is thus evident in their responses to the Verma Committee.

However, the reasons for the feminist groups’ call for such punitive and retributive response to the crime are not very clear. Apart from one, none of these groups elaborated the reasons for regarding LWORP as the only adequate response to the crime, to be applied without discretion. ²⁷ Most of their arguments advocating against the death penalty would hold true for LWORP as well. LWORP, it has been argued, is an excessively harsh punishment, giving the state overweening power over an individual’s life, though in a context different from the death penalty (Barkow, 2012).

Further, the feminist groups themselves acknowledged the failure of the criminal justice system at various levels when they argued that harsh punishments could lead to a decline in conviction rates, especially in custodial rapes and rapes by powerful persons (Murthy, 2006). How LWORP fits into this argument was not dealt with in any of the responses.

Moreover, the introduction of LWORP as a punishment for aggravated rape becomes relevant at the sentencing stage, at the very end of the trial process, after guilt has been determined. Given that other factors around a case, such as investigations and trial mechanisms, remain the same, how the introduction of LWORP alone would serve to further feminist interests is not clear. Further, feminist groups have admitted that harsh punishments serve to merely distract attention from real issues, such as the protection of women by focusing on the prevention of rape, and the making of the trial and investigation procedures gender sensitive. Thus, the inconsistencies within the feminists’ articulations on harsh punishments and their demand for LWORP in cases of aggravated rape remain puzzling.

Further inconsistencies in the position of Indian feminist groups who responded to the Verma Committee are apparent in their engagement with the broader issues of crime and punishment. ²⁸ For instance, their rejection of the theory of retribution, which is evident in their denouncement of the death penalty, falters in the face of their demand for LWORP for aggravated rape. LWORP as a punishment, for sexual offences or otherwise, has been extremely controversial as criminal–justice reformers have called it out for its complete abdication of reformation and rehabilitation as the objectives of imprisonment (Kanjilal, 2018; Litchenberg, 2018). In their dissenting opinion in the Constitution bench judgment of the Supreme Court in V. Sriharan (2015), Justice Lalit and Justice Sapre observed that the processes of remission and clemency are not matters of privilege but rather of the performance of constitutional duty, and they must be exercised not for the benefit of only the convict but for the welfare of the public who insists on the performance of this duty. ²⁹ A reasonable expectation of having a sentence reviewed on the basis of a variety of factors, including prison behaviour, is not an incidental and dispensable aspect of the sentence, but a part of the very right to life of the prisoner. ³⁰

In their engagement with punishment for sexual violence, the submitters to the Verma Committee deliberately declined answering difficult questions on the criminal justice system. The driving force behind the demand for LWORP is hard to gauge, especially since none of the groups, with the exception of the AIDWA, provided reasons this demand. However, when seen in the context of their other demands and their repeated experience of the state’s unwillingness to prosecute powerful men accused of sexual violence, this demand appears to channelize their frustration with the state’s unwillingness to prosecute and punish those who commit sexual offences against women.

The experiences of Indian feminist groups when working with sexual violence survivors and victims’ families were reflected in their responses to the Verma Committee, which demanded changes to laws on sexual violence in terms of both definitions and punishments. However, the feminist groups’ nuanced and well-articulated arguments for defining various sexual offences in a continuum did not find a way into their demands for punishment. Discussions on punishment for sexual violence, barring the demand for LWORP for aggravated rape, were conspicuous by their absence from the responses of feminist groups to the Verma Committee.

Collapse of the Continuum

Feminist groups submitting to the Verma Committee reinforced the MacKinnon-ite approach to rape, which, defined from a male perspective, hinges on penile penetration of the vagina (MacKinnon, 1983). An expanded definition of rape, as demanded by the feminists, thus, is reflective of female experiences of the crime. However, while feminist groups demanded the gradation of sexual assault based on degrees of harm, humiliation and degradation, the same practice did not appear in their demand for punishment for rape. The disconnect between such articulations, which sought to define sexual violence in a graded manner on the one hand, and clubbed together different kinds of rape as deserving of the same punishment on the other, is all too noticeable. The skilful arguments for a continuum theory of sexual violence submitted by feminist groups to the Verma Committee thus collapsed due to their demand for a mandatory minimum punishment for rape. Marcus (1992) critiques the collapsed continuum theory of sexual violence for linking language and rape in a way that can be taken to mean that representations of rape, obscene remarks, threats and other forms of harassment should be considered equivalent to rape, despite being ‘less harmful’ than the offence of rape itself. The refusal by Indian feminists to engage with the question of graded punishment for rape has left unanswered the many questions which arise once the concerns regarding an appropriate definition of rape are resolved.

Theoretically, the inconsistencies within the two feminist articulations of sexual violence—that is, ‘sexual violence as forming a continuum’ and ‘all rapes are equally harmful’—can be reconciled with the assumption that every rape is harmful enough to warrant a mandatory minimum of 7 years’ imprisonment, with the punishment extended to a maximum of life imprisonment based on the brutality of the assault, the vulnerability of the victim and so on. The argument, then, is that the CLA 2013 leaves room for judicial discretion to decide between imprisonment of 7 years and imprisonment for life. If the offence is of an aggravated nature, the punishment begins with a minimum of 10 years’ imprisonment. This argument, however, did not withstand scrutiny in the aftermath of the conviction of Mahmood Farooqui, the first case of non-peno-vaginal rape under the CLA 2013 in Delhi, and it exposed the fault lines in the CLA 2013 as well as in the Indian feminists’ approach to criminal law. Farooqui was convicted by a trial court in Delhi for raping an American Fulbright scholar from Columbia University when she was in India for her PhD research, and sentenced to 7 years’ imprisonment, the minimum punishment under the law. His conviction and sentence led to lot of speculation within feminist circles in India, and the case became extremely controversial, especially because he was convicted of oral rape, in one of the first cases of non-peno-vaginal rape under the newly amended IPC. That Farooqui was a well-known, left-leaning, progressive film-maker, and belonged to the same elite social circles as many Indian feminist activists, only served to deepen the divide among them.

Prominent voices within feminist circles denounced Farooqui’s conviction and opined that it was not a crime that deserved seven years’ imprisonment. Feminist lawyer Flavia Agnes claimed that a brutal gang rape could not be compared to forced oral sex and that it was improper to divorce gender justice from the rights of the accused in a criminal trial (Budhwar, 2016). She also said that the widening of the definition of rape post 2013 should not have been accompanied by a mandatory minimum punishment for all kinds of rape. Manisha Sethi, another prominent voice in the feminist movement in India, observed that there was a deep disquiet over the new law, in terms of its expanded criminalization and its adherence to minimum sentencing rules (Sethi, 2016). On the other hand, Kalpana Kannabiran, a prominent feminist sociologist and lawyer, called out Agnes and Sethi for raising doubts over the conviction of Farooqui. She said that while problems with carceral feminism (feminist activism which seeks to enhance punitive punishments for gender-based crimes) are real in a neo-liberal world, it cannot be denied that under the current system imprisonment is the only way of dealing with crimes (Kannabiran, 2016). According to her, though the law on punishment for rape may not be perfect, one could not question the basis of Farooqui’s conviction and sentence as the act committed by him amounted to rape under the law. To Kannabiran, therefore, Farooqui’s punishment was not unmerited in light of the law. Mihira Sood, an advocate at the Supreme Court of India, observed that while feminists had fought for decades to expand the legal definition of rape to include oral, anal and digital rape and rape by use of objects, they were now all of a sudden being told that some acts were not ‘rape enough’ (Sood, 2016). She was especially critical of arguments that viewed one kind of rape as more serious than others, calling them out as claims of ‘a mouth being more benign than a penis’, of ‘sexual assault in a drawing room being better than sexual assault on a street’, or a situation in which if one was not sufficiently brutalized, consent to an explicitly sexual act was of no real importance.

While there were more debates around the case, the relevant aspect for the purposes of this article is that much of the divide focused on whether Farooqui was deserving of seven years’ imprisonment or not. While critics of the judgement, such as Agnes, raised concerns over equating ‘brutal rapes’ with ‘(non-consensual) oral sex in a friend’s drawing room’, endorsers of Farooqui’s conviction and sentence, such as Kannabiran, were alarmed that concerns with carceral feminism were raised only when the accused were well-known personalities. Interestingly, voices on both sides of the debate raised concerns about the criminal justice system at large, while taking different sides in this particular case. Much of the divide, thus, was about whether 7 years’ imprisonment was too harsh a penalty for this particular offence. This issue, in turn, is linked to the bigger question of gradation of rape and the imposition of different penalties for different kinds of rapes, a debate that the feminist groups who lobbied for the CLA 2013 chose not to enter.

Unintended Consequences

Farooqui’s subsequent acquittal by the Delhi High Court in appeal was another instance of the failure of the CLA 2013 in securing a feminist success. In her testimony before the court, the survivor stated that she had said ‘no’ multiple times before and during the act. The High Court, however, fell back on stereotypes to second-guess the survivor’s testimony, and observed that ‘instances of woman behaviour are not unknown that a feeble no may mean a yes’. The Supreme Court refused to interfere with the High Court’s judgement and dismissed the case in limine. ³² Farooqui thus walked free, the victim was discredited by two appellate courts, and the case revealed a split within Indian feminists that had been invisible in their submissions to the Verma Committee.

Such an outcome reinforces the general concern, frequently raised by criminal justice scholars, regarding the (in)efficacy of mandatory minimum punishments. Mandatory minimum punishments have been criticized for reducing conviction rates and for coming into conflict with the basic judicial inclination to consider individual factors when deciding sentencing outcomes (Ashworth, 2015; Stuntz, 2001). The shortcomings of mandatory minimum punishment have also been highlighted in the context of sexual violence in different jurisdictions (Baehr, 2008).

In the CLA 2013 context, it is extremely unlikely that judges, who had earlier invoked sexist stereotypes about women to impose reduced sentences, would consider all kinds of non-peno-vaginal rape as deserving of 7 years’ imprisonment. Not surprisingly, the High Court relied on sexist stereotypes about women and consent to acquit Farooqui and, in doing so, the court not only discredited the survivor, but also pulled back years of progressive discourse on consent in rape cases (Satish, 2018).

Feminist groups, who had aspired to remove judicial discretion in rape cases, failed to consider the shortcomings of mandatory minimum punishments. As a result, the CLA 2013, which clubbed all kinds of rape as deserving of the same punishment, produced consequences that were unintended by feminists aspiring for legal reform. In her work on governance feminism, Halley (2018) observes that feminist engagement with institutions of power has resulted in significant achievements for women in the social and economic spheres. Yet, she notes, some initiatives have produced harmful unintended consequences that need to be addressed. The mandatory minimum punishment for rape introduced by the CLA 2013 is consistent with this argument, as revealed by the perverse outcome in the appellate stage of Farooqui’s case.