Hardly a week goes by in India without someone saying something ridiculous about how women are treated in our society. So it seemed only believable when a news report in DNA claimed on Tuesday that the Delhi High Court had insisted in a judgement that “forceful sex on menopausal women” does not amount to rape. (The post was later substantially edited and updated by DNA).

The report said that the High Court had acquitted a man who had been convicted and sentenced to 10 years imprisonment in a lower courts on the grounds of having “forced sex” with a 65-year-old woman who had attained menopause.

The news report goes on to explain what it thinks is the “baffling” portion of the judgment: “Here the judges were trying to make a distinction between women who have attained menopause (past the age of fertility) and those who haven’t. If a woman has attained menopause, she cannot be termed a victim of rape, this judgement seems to point out.”

Naturally, there was immediate outrage on Twitter.

 

 

 

But the confusing nature of the judgement, particularly through the use of the word “menopause” prompted some to go back to the order itself and take a look. What they found there was quite different to what DNA had reported.

The case involves a 49-year-old man who had sex with a 65-year-old woman, who died soon after. A lower court convicted the man for both rape and murder, basing its judgment on the postmortem report which suggested the woman had been subjected to “forceful intercourse”, which later caused asphyxia and led to her death. That order has no mention of menopause.

The matter was then taken to the High Court through an appeal. Since the woman herself was dead, all the evidence was circumstantial, meaning the court had to be convinced beyond reasonable doubt that the she had been raped and that the cause of death was not natural.

The lawyer for the convicted man pointed out that there is a difference between “forceful” intercourse ‒ rough sex ‒ and forcible sex, which is rape. The key difference is that the first is consensual, while the other one involves the accused having intercourse without the consent of the woman. He also argued that this consensual rough sex had caused a natural reaction in the woman’s body, causing her to vomit and die of asphyxiation because of a gastric reaction.

Right away, the High Court held that the man couldn’t be held guilty of murder, because the death was evidently caused by this gastric reaction. "Even if held guilty for causing the offence of Section 376 IPC [rape], he could not be held guilty for offence under Section 302 IPC [murder] "as he neither had any intention nor knowledge that such a forceful act of sexual intercourse would cause the death of the deceased”, it said.

But even the question of rape was not settled in the lower court. The court concluded that there was evidence of forceful intercourse, i.e. rough sex, but not a lack of consent. “We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible and contrary to the wishes and consent of the deceased.”

 

 

The court points out that both had consumed alcohol and that there were no other injuries on either of them other than on the woman’s vagina to show that she had protested or tried to prevent the “forceful” sex. As a result, the court said it could not conclude beyond reasonable doubt that the sex with the woman had amounted to rape. So the man was acquitted on both counts.

All of this makes sense, as a number of lawyers and others on Twitter pointed out. But one word still seemed to stand out, and was possibly the reason that DNA later appeared to misinterpret the judgement.

The High Court begins its discussion of the rape charge saying, “as regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause”.

There is no reference to menopause anywhere else in the judgement, and it does seem like a complete outlier, with no real inference being taken from it. One could interpret the court’s assertion of it being simply a way of establishing age or health, but it shows no evidence to suggest that menopausal women are, say, more vulnerable to forceful sex or more likely to have gastric reactions there after. The rape law does feature different punishments for women who are pregnant, where menopause would be relevant, but that is a question of sentencing, not conviction.

 

This “baffling” mention was most likely what prompted DNA to look at the matter, and while the reference still seems at least lacking context, what is certain is that the court is not saying post-menopausal women cannot be raped.

Women's rights activist and lawyer Vrinda Grover, meanwhile, said that the outrage against the DNA story was misdirected. The issue, in her estimation, is not the question of whether the court thinks menopausal women can be raped – it hasn't actually said either way – but why the matter was brought up at all. Grover also question the high court's decision that the lack of other injuries, besides vaginal ones, could be taken as evidence that the sex was consensual.

"Why is the word menopause mentioned at all? It is an irrelevant and extraneous consideration to the case of rape. My issue is very simple and is actual the oldest issue with Indian judgments in rape. They are drawing a distinction between forceful penetration and forcible penetration. The forceful penetration is of such severity that it has caused her death. The same judgment says that the postmortem doctor is categorical of it. And yet, they do not infer absence of consent... they seem to be drawing a new distinction that now even vaginal injuries are insufficient to prove rape. You need other injuries also. And why bring up the fact that she had consumed alcohol?"