ABSTRACT

Whatever they may be in public life, whatever their relations with men, in their relations with women, all men are rapists and that's all they are. They rape us with their eyes, their laws, their codes. Marliyn French

Be it in USA, Australia, India, Europe or Africa. Be it in first world country, second world country or third world country Rape is Rape and it is the worst and most heinous crime that can be committed against a female. Rapist just dont violate the spirit of the body, it kill the soul of the victim. Delhi Gang Rape case has awakened the conscience of the Indians. Indians who are known for their Chalta hai attitude. Approximately 2 girls are raped everyday in Delhi. So what was so special about this case? What makes it different? Is it the demonic way that it had happened and ended or is it the death of the girl? No one has answers for these questions but it had prompted us to think and look for reasons why there is increase in number of crimes against women, particularly rape. This article will analyse theories behind rape, social stigma attached to rape and then in the end try to suggest a best suitable solution to protect our women.

THEORIES OF RAPE

A 10-month-old raped by a neighbour in Delhi; an 18-month-old raped and abandoned on the streets in Calcutta; a 14-year-old raped and murdered in a police station in Uttar Pradesh; a husband facilitating his own wife's gang rape in Howrah; a 65-year-old grandmother raped in Kharagpur. 1 Rape has become part and parcel of our lives. According to statistical data, in India approximately every 21st minute a girl is sexually abused. According to Section 375 of Indian Penal Code, 1860 rape is said to be committed when: A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First. - Against her will. Secondly. - Without her consent. Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. - With or without her consent, when she is under sixteen years of age.

And punishment attracted for rape at maximum is of life imprisonment, which runs to 14 years. 14 years of punishment for a life time of misery. This insignificant and light punishment is awarded in rare cases, cases in which Indian women had gathered courage to fight injustice done to them but majority of these victims dont get justice even after waiting for years and braving outdated and colonial Indian legal system, society and themselves.

http://www.bbc.co.uk/news/world-asia-india-20907755

In a good number of cases the rapists escape with a more lighter sentence because a judge accepts their irrelevant and pathetic argument that they committed the crime because they were under the influence of alcohol, or that they were living away from their family, or they had a family to look after, or that the accused was a high-caste man who could not rape a Dalit - low caste - woman. These are the cases which had reached to the court of law but what about the cases which were buried by the victims own family because of the fear of the backfire from the society or for the sake of their daughters future. Or the cases which were reported but not taken up by police or where the victim was not aware of her right. There can be no estimate that how many rape cases are not reported. Why men rape? According to a reading material published at Harvard universitys website 2 there are 5 different theories explaining why men rape. These 5 theories are explained here in lay man terms. 1. Biological theory: According to this theory there is no gene which compels man to rape women but men rape because of evolution. To put in simple words men who are predisposed to rape may have more reproductive success. Over a long period of time, this reproductive advantage resulted in a widespread predisposition to rape among males. Some theorists argued that predisposition to rape is not an adaptation of the environment/ surroundings by the male but it is the side-effect of reproductive adaptations, such as the pursuit of a number of partners. Theorist further moved on to explain the behaviour of women. According to them for women sexual activity with a limited number of partners is desirable and thus women have evolved to resist rape. They had also justified the trauma faced by women. They argued that the "trauma" experienced by victims of sexual assault was a reproductively successful response because women who had experienced such trauma will subsequently avoid being raped again. 2. Commodification Theory: Some theorists believe that rape is a crime of property, in which sex is a commodity which is stolen from a woman by a rapist. In an article3 published at Harvard Law review author put forward the Commodity theory of rape as:

2 3

http://cyber.law.harvard.edu/vaw00/theories_of_rape.html

Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 Harv. L. Rev. 563 (1997)

Instead, youths, particularly young men, are bombarded by a culture that sexualizes commodities and commodifies women's sexuality. Companies sell products by selling the sexuality of the women endorsing the product ... What motivates many rapists may not be substantively different from that which motivates men who go to prostitutes or purchase tickets to peep shows. None of these acts requires mutual enjoyment or emotional intimacy, and they are all called sex. Thus, men are able to satisfy a desire for sex without having to incorporate the complexities of sexually intimate communication. This cultural endorsement and marketing of sex as a commodified good leads to an increased desire for, and sense of entitlement to, sex. Most men are taught that sexual desire is like hunger: when it is there, you satisfy it. Women are candybars. Of course, food is not free and neither is sex, but precisely because men can and do pay for sex, taking it without consent becomes much less morally reprehensible than other violent crimes. Thus, it is not surprising that one study found that thirty-nine percent of convicted rapists were caught in the course of a robbery. As many of these men conceded, they raped because she was there. They were already breaking the laws of trespass and ownership--why not take one more thing? Men know that taking sex without consent is wrong, but many men do not perceive it as really bad. The relationship between alcohol and rape demonstrates this point. In one study of college men who had committed sexual assault, seventy-five percent said that they had used alcohol or drugs prior to the assault. Another study of convicted rapists found a comparable seventy-five percent who admitted to using drugs or alcohol prior to the attack. All of the college gang rapes that were analyzed in a 1985 study involved alcohol. This direct relationship between alcohol use and rape exists, despite clear scientific evidence showing that "[a]lcohol disinhibits psychological sexual arousal and suppresses physiological responding." What may explain the correspondence between alcohol use and rape therefore is not alcohol's affect on sex drive, but rather alcohol's tendency to decrease inhibitions against taking that to which one has no right. Teenagers get drunk and go get sex in the same way that they get high and go to the 7-11 to shoplift candybars. They know it is wrong, but it is not that bad. Most adolescents do not get drunk and go rob banks. They do not get drunk and

commit murder. They do get drunk and break little rules. They shoplift and joyride and vandalize. The rule against raping, particularly date raping, is like the rule against shoplifting--it is a little rule. 3. DEVELOPMENTAL THEORY: In a book4 authored by Malamuth and others argued that probably genetic variation is not the reason behind rape proneness among men but by developmental events involving learning. Their analyses indicate that rapeprone men come from harsh developmental backgrounds involving impersonal and short-term social relationships, and backgrounds in which manipulation, coercion, and violence are valid ways of conducting social relationships. 4. RAPE AS A GENDER-BASED HATE CRIME Theory: An excerpt5 from a journal published in Harvard Law Journal clearly explains this theory. Relevant portion of journal: [F]orced sexual contact in the name of passion or personality may support rather than refute a claim of gender-motivation because it shows disrespect for women. ... [There is] research indicating that acquaintance rapes frequently are premeditated and are predicated on discriminatory biases about male entitlement to coerce sexual relations with women against their will. In addition to the workplace sexual assaults and the gang rapes analyzed in the first VAWA Civil Rights Remedy cases, sexual assault and domestic violence situations may contain other evidence that reflects gender-motivation. A perpetrator may have uttered gender-derogatory epithets such as "bitch," "slut," or "whore" in the course of committing a violent act. He may have made comments that reflect anti-female bias such as those cited in the Brzonkala case. A defendant may have made derogatory comments about a woman's physiology or may have mutilated her genitals during an assault. In acquaintance rape cases, a defendant may have disregarded a woman's protests, reflecting the stereotypical view that "no" means "yes" that underlies much violence against women.

N.M. Malamuth & M.F. Heilmann, Evolutionary Psychology and Sexual Aggression, in HANDBOOK OF EVOLUTIONARY PSYCHOLOGY 515-42 (C. Crawford & D. L. Krebs eds., 1998) 5 Goldscheid, Julie, Gender-Motivated Violence: Developing a Meaningful Paradigm for Civil Rights Enforcement, 2 Harv. Women's L.J. 123

Or a defendant may have committed serial rapes or participated in gang rapes. " 5. CONTROL THEORY: According to few feminist scholars rape is a matter of control then a matter of sexuality. They are of a view that rape cases should not be examined as a matter of sexuality, but rather as an expression of control. In the book Stephen R. Gold's review of: Sex, Power, Conflict: Evolutionary and Feminist Perspectives6 the author and reviewer of the book had examined the issue that whether rape should be examined as sexual or violent behaviour is carefully examined by Muehlenhard et al. They had also discussed the issue from the victim and perpetrators perspective. The authors came to a conclusion that the issue of rape should be examined beyond the point of sex versus violence to a focus on control. The last chapter of this book presented a feminist point of view and deals with the impact of the threat of rape on women's self-esteem, trust in others, and perception of personal control. Authors note that a higher frequency of rape is a result of greater belief in gender inequality which is present both at individual and the societal level. Authors finding support the feminist view that rape and rape myths contribute to gender inequality. Females have to worry about and protect themselves against being raped, joined with societies views about rape victims, females are restricted in their behavior and are forced into thinking less good about themselves.

SOCIAL STIGMA ATTACHED TO RAPE

Rape is the only crime in which the victim becomes the accused. We live in a culture where we are taught that we have choices about our lives and that we're responsible for what happens to us. As feminist author Gloria Steinem says, "If you are beaten, you're said to have incited it, if you're raped you're said to have invited it. We all know that these things run very deep in the culture." "From the time a child is very, very small, we're teaching that they're responsible for the things that happen in their life both positive and negative," says C.Y. Roby.
6

Edited by David M. Buss and Neil M. Malamuth. Oxford University, Press, New York, 1996

It's not only the victim who blames herself. Society is quick to blame her as well. Even the innocence of children is questioned. Often one can hear about a police officer blaming a fouryear-old girl for seducing her perpetrator who was an adult. Delhi gang-rape case is not a different case. Influential persons and legislators had come forward and gave their view on this case bringing out the ugly face of a deeply patriarchal Indian society. Society which has a misogynist culture. Few of those comments are reproduced here as they were reported by Human Rights Watchdog on their website7. A Rajasthan state legislator in India called for a ban on allowing girls to wear skirts as uniforms. A minister in Madhya Pradesh state burned jeans and t-shirts. The Puducherry School Education Minister said that girls uniforms should be redesigned to protect them with an overcoat. The Islamist group Jamaat-e-Islami Hind recommended a sober and dignified dress code for girls thus blaming the victim is not uncommon in India. There is talk of legal reform and fast trials, but stigma and blaming of survivors of sexual assault will unfortunately live on without concerted efforts to end it. The article further says While researching the difficulties rape survivors face while seeking justice in India, I heard about the myriad ways in which the stigma of sexual violence magnified the hardship for survivors and their families. A lawyer told me of a 15-year-old left pregnant by rape whose father was pressuring her to marry her rapist. The family of a 6-year-old rape survivor said they faced such stigma in their community that their older daughter had dropped out of school. Another lawyer assisting a 14-year-old survivor of gang rape reported that the girls father abandoned the family, unable to handle the shame. Sadly, these are all too frequent responses. These were the few cases which gained the medias attention. Now lets discuss about heartless, cruel and corrupt Indian police. Police which is duty bound to help the victim to get justice had started to blame victim only. They had only added to the misery of the victim. An article published in Tehelka magazine during April, 20128 shows how insensitive Indian Police has become. Relevant portion of the article are reproduced here:

7 8

http://www.hrw.org/news/2013/01/08/stigma-and-blame-attached-rape-survivors-india http://tehelka.com/the-rapes-will-go-on/

Seventeen senior cops of over a dozen police stations across Gurgaon, Noida, Ghaziabad and Faridabad were caught on spy camera blaming everything from fashionable or revealing clothes to having boyfriends to visiting pubs to consuming alcohol to working alongside men as the main reasons for instances of rape. Its always the woman who is at fault was in essence the argument offered by a majority of the cops. Many of them believe that genuine rape victims never approach the police and those who do are basically extortionists or have loose moral values. Others believe that the women from Northeast could never be victims of forced sex as they are invariably involved in the flesh trade. Even more shockingly, some of them are of the view that if a woman has consensual sex with one man, then she shouldnt complain if his friends also join in. If a woman is doing late hours at the office then she had it coming and the arguments keep coming. It is rightly said that victim had become the accused.

CONCLUSION
As discussed above Indian law defines rape as a penile penetration of the vagina. This definition is outdated and needs to be updated to include penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration and marital rape. To stop rape cases country should go beyond rape and seriously think about prosecuting other crimes against women, such as stalking, public stripping. Indian legal class must also investigate sexual assaults in the context of communal and caste violence, as well as custodial rape. Beside police and legal reforms Indian government and society at large should focus on changing its attitude towards the female section of the society and create an environment of mutual respect and gender equality. In India gender discrimination begins before birth in the form of female foeticide. Girl child is killed before it is even born. Even after birth, story of a female child is still hopeless. In rural India many times a girl child will be the last one to be fed and to receive health care or an education. As a result, she is much more likely to experience problems like child malnutrition then her brothers. And this discrimination and injustice will only increase as she grows older.

According to 2011 UN report9, Indian women are worse off than in countries like China, Iraq, and even Saudi Arabia. Indian patriarchal culture and wide spread misogyny justify this kind of violence and treatment against women. This justification had encouraged men to believe that women are inferior to men and if they try to break this chain then they deserve to be taught a lesson. Most of the city dwelling Indians mistakenly believes that this type of practiced is only prevalent in rural India or among poor and uneducated section of the society. Misogyny is omnipresent in Indian society, even its police, judges, politicians and intellectuals are not spared. For instance, Parliamentarian Abhijit Mukherjee, son of Indias President Pranab Mukherjee, said that recent protests demanding justice for Delhi gang rape case victim included painted and dented women. Another shocking example would be of Vibha Rao, Chairperson of Chhattisgarh States Women Commission. She said that victims of sexual assaults are equally responsible for the crimes committed against them because they display their bodies and indulge in various obscene activities. It is quite clear that the first and foremost step to protect our women should be a change in attitude of ruling class of India. This change is overdue and will require the involvement of all the sections of the society. Some activists are asking for compulsory gender-sensitization programs for police and bureaucrats. Others advocate educating all students on gender issues. While supportive in theory, the Bangalore-based rape survivor warns that change wont come through an hour-long weekly class on womens issues, but instead requires a much more comprehensive overhaul of all national curriculum to make it more gender-sensitive10. Gender equality can do wonder in restricting the crime against women. For instance an article11 published in Times of India newspaper bring out the following facts In Darjeeling, for instance, police stations across the district will tell you that in the last decade they have come across only a couple of cases. That, too, in one an outsider was involved. A cop I spoke to for this article remembered just a single case of eve teasing in 1981.
9

http://www.economist.com/news/leaders/21569031-horrible-attack-could-prove-turning-point-indiaswomen-rape-and-murder-delhi 10 http://thediplomat.com/2013/01/09/indias-women-problems-its-not-just-about-rape/4/ 11 http://blogs.timesofindia.indiatimes.com/onefortheroad/entry/why-indian-men-rape

The Khasis of Meghalaya also score very high on gender parity. So do the Nagas, Mizos, Sikkimese and generally the people of the North-East. Another indication of this equality is the absence of dowry in these communities. And this is because there really is no price on the head or body of a woman.

The article Why they rape? submitted to the CAMPUS LAW CENTRE STUDENT LAW REVIEW ,Faculty of Law, University of Delhi for the inaugural issue of CLC Student Law Review is based on our original work. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the article has been duly acknowledged. I understand that I could be held responsible and accountable for plagiarism, if, any, detected later on.