Germaine Greer’s The Female Eunuch changed the way I look at the world. Although I have rarely agreed with the viewpoints expressed in her later books, she will always remain a heroic figure in my eyes. For that reason, I am willing to look past the many preposterous things she said at the Hay Literature Festival last week, and focus on the rational core of her argument about rape and punishment. Her perspective is relevant to India, where public outrage over well-publicised atrocities has led to a broadening of the definition of rape as well as a substantial augmentation of compulsory sentences for the offence. An ordinance promulgated in April mandates a minimum 10-year imprisonment, with even stronger punishment for sexual assault on minors. These new laws follow controversial anti-terrorist legislation such as the Terrorist and Disruptive Activities Act in neglecting mens rea, or the intention behind criminal acts.
For much of her talk, Greer appeared to be belittling rape victims and minimising the psychological damage caused to them. Having herself been raped at the age of 18, she seemed to feel entitled to tell others how they ought to respond to a similar experience. But she put her finger on one of the causes of low conviction rates for rape, the difficulty of proving denial of consent, and offered a radical solution. She said, “If we are going to say trust us, believe us, if we do say that our accusation should stand as evidence, then we do have to reduce the tariff for rape.”
In India, we have done the opposite of what Greer recommends by greatly increasing the minimum tariff – the punishment or price paid – for rape. The burden of proof has also increased as a consequence, along with the propensity of judges to exonerate the accused. Even as more women come forward to report sexual abuse, conviction rates for rape are dropping. Actor Mahmood Farooqui’s acquittal is a good example of this trend. Farooqui’s accuser was consistent and believable in her account of the event while Farooqui’s defence took two mutually contradictory positions – first that the accuser was making the whole thing up, and second that it was an act of consensual intimacy. Justice Ashutosh Kumar wrote, in his now-notorious verdict, that, “An expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape.” Near the end of his judgement, Kumar listed the arguments for guilt and innocence, and those for guilt appeared far stronger. Yet, he went with his “feeble no” theory, which the Supreme Court later held to be well grounded.
I am not a mind reader, but my sense is that had Kumar possessed more latitude in sentencing and more freedom to take the perpetrator’s state of mind and intent into account, he might have offered a different verdict. The minimum sentence may have felt too high for what appeared less like a deliberate attempt to violate a woman’s body than a criminal misreading by an alcohol-addled brain. Since the judge’s options were constrained, he chose the unconvincing “feeble no” route.
Miscarriage of justice
I can see a similar miscarriage of justice occurring in the Tarun Tejpal case. Ten years in the inhuman conditions of an Indian prison would be, to my mind, disproportionately harsh punishment. Yet, if Tejpal did what his credible accuser says he did, he deserves to be punished, for the acts he is accused of are undoubtedly criminal. Whether he is judged guilty or innocent, justice will not be served. I know many people, perhaps the majority of the readers, will disagree with this statement. I have conducted a few straw polls on the issue and been surprised by the strength of support among liberals for long mandatory minimum sentences. I hope proponents of stringency can see the trade-off between the vindication and closure that guilty verdicts provide to survivors on the one hand and the satisfaction of seeing perpetrators severely punished on the other.
Perhaps our adversarial legal system itself is ill-equipped to handle rape. The crime is unique in causing tremendous damage without necessarily leaving behind any physical evidence or witnesses to help the prosecution. In trial, a complainant feels like she is the accused. Her entire life is exposed and brutally dragged through the dirt, and the inevitable imperfection of memory is utilised to brand her a liar. Many survivors speak of their interactions with the criminal justice system as second rape and far too few trials end in conviction even in affluent democracies such as the United Kingdom. One can’t blame defence lawyers for using the weapons at their disposal, nor can we take those weapons away.
The inquisitorial system of continental Europe provides an alternative. Instead of cross-examination by opposing lawyers, judges take the lead in asking questions, which protects the dignity of the survivor somewhat. But this system does not appear to deliver more convictions in cases where the accused and accuser are acquainted, little or no material evidence is available, and consent is disputed. In these instances, of which more are reported each year, we might need something more radical than the inquisitorial approach. It could be a quick process judges conduct in a space that is less intimidating than a courtroom and in which the burden of proof is lower and prison terms correspondingly shorter. Certainty of punishment being a greater deterrent than its severity, a reduced tariff on rape in such cases might well provide a closer approximation of justice than the high mandatory sentences we currently impose.