Criminological Perspective on Sexual Crimes in India

Introduction

Cases of rape in India are reported in the newspapers almost every other day. A careful reading of these reports through a criminological perspective, keeping in mind the theories of crime causation, would help in not only identifying the circumstances that led to the commission of the offence but also in devising ways of crime prevention.

Some of the theories of crime causation discussed in this article include the environmental theory, routine activity theory, and Sutherland’s theory of differential association. However, since these theories were applied to the limited information that was reported in the news reports, it is pertinent to mention that the author does not believe that the offence of rape can be explained by a single theory. Furthermore, it must be noted that this is not an exhaustive study on the subject-matter as only those acts that may come under the offence of ‘rape’ as has been defined under Section 375 of the Indian Penal Code, 1860 have been taken into consideration.

Rape Cases in India

In Madhya Pradesh, a woman living alone on a hillock near Hardi village, about 60 kms from the district headquarters was brutally raped at around 10 P.M. Her sister could not call for help because of the isolated location of her house. In Uttar Pradesh, an 80 year old woman was raped while she was alone at her home. Environmental criminology, a term coined by C. Ray Jeffery in 1971, studies crime as a result of a person’s spatial environment. The focus is placed on the features of crime and the likelihood of victimization of an individual. The perpetrator conducts the cost-benefit analysis of criminal conduct and engages in a crime only when the possible benefits from the commission outweigh the risk of punishment. Though the theory is not immune from criticism, it helps in devising ways of crime prevention. In the first instance, for example, environmental approach would focus on the extent, the proximity of the scene of commission of the crime to the location of the nearest public authority had in influencing the accused’s decision in committing the crime. It would call for addressing risks specific to the locality where the crime was committed. Furthermore, the theory could provide possible ways to reduce likelihood of victimization of an unguarded woman in India while simultaneously focusing on creating a supportive environment for the victims of sexual crimes.

The Honour of a woman, the monsoon in her life

Recently, a member of the National Commission of Women stated in reference to the Badaun rape victim that, “perhaps, had the victim not gone out in the evening, or gone along with a family member, she could have been saved”.Victim shaming and questioning the credibility of the victim shifts the focus from the perpetrator to the victim. The Supreme Court of India once observed that the loss of ‘virginity’ of the victim who was nine when she was raped has put her under the impression that “there is no monsoon season in her life and that her future chances for getting married and settling down in a respectable family are completely marred.” This observation sums up how rape victims are perceived in the society. A considerable importance is attached to a woman’s chastity, or its lack thereof. It should be noted that factors such as marriageability, purity, status and a woman’s image in the society are repeatedly emphasised. We have troubling instances like in Uttar Pradesh where a father, ashamed and humiliated by her visible baby-bump, killed his own daughter, not knowing that she was raped.

While sexual crimes are gruesome and traumatic, the unnecessary importance attached to a woman’s ‘virginity’ and ‘honor’ results in commodifying the sexuality of the woman—it births the notion that her chastity is a prized possession of the whole community or of the family that must be protected at all costs, even if it means killing the victim.

The commodification theory looks at sexuality as a form of property. In a study, convicted rapists, when asked their motives behind the commission of the crime, confessed that they raped because she was there. They were already breaking the laws of trespass and ownership–why not take one more thing? This is also evident from an instance that occurred in Delhi, where a burglar sneaked into a house in Jangpura, then raped and assaulted a woman. The reason? He was filled with rage when she refused to reveal her ATM details. Another unfortunate consequence of this commodification is revenge rape. Radhika Commaraswamy, in her article, Reflections on violence against women, observes that a woman may be subjected to sexual violence in times of war, riots, ethnic or caste conflicts as a means to dishonour the whole community.

Rape as a tool to enforce patriarchy

The control theory of rape moves away from the sex vs. violence approach and defines rape as not an act of passion or a crime of sexual lust, but rather as a crime motivated by a man’s desire to dominate a woman. While a woman’s honor lies in her chastity and reproductive capacity, a man’s honor is often wedded to his ability to impose control on the women in his family.

The patriarchal structure nurtures this notion. Sexual violence is seen as a way to exert control over women. This view is supported by radical feminists who view society as being inherently patriarchal in nature and call for an overhaul of the entire social structure. According to them, the problem of rape cannot be dealt with without dealing with patriarchy first. Simply put, to stop rape, one must end patriarchy. Thus, they view rape as an act of aggression and not as an act to satiate sexual desire. The Patriarchal Power and Control Model stresses that rape is simply an aggressive act rather than a physical act, the motive and mechanisms of which derive from aggression rather than the need to satisfy a sexual urge. Rape is not an end in itself but a means of enforcing gender norms in society and maintaining the hierarchy favorable towards men.

All in the family: A culture of silence?

A man raped his sister for more than 3 months and the mother refused to help the victim. In Tamil Nadu, a teenager was raped and impregnated by her own father.The rising incidence of incest rape during the lockdown period may be explained using Cohen and Felson’s Routine activity theory. According to the theory, crime occurs when three factors coverage: (i) a motivated offender, (ii) a potential victim and (iii) absence of a capable guardian. In cases of incest-rape, the victim is easily available, the offender is the guardian, and there is a belief that the cost-benefit scale is tilting in his favor as the victim would not report the crime. Moreover, in such a situation, mothers are often faced with a conflict of duties that they have learnt they must fulfil: as a wife, protect their husbands at all costs; be the binding force that holds the family together, and as the nurturing, caring mother that protects her children from all harm. In addition to this, the fear of shame and social stigma that not only her daughter would face but also the societal backlash that she would have to undergo as well, as the wife of a rapist, the latter instead of the former of her duties would take a backseat.

Towards Social Reform: Challenging the notions of male hegemony and remoulding cultural norms

As we demand harsher laws vis-à-vis sexual offences, it is important to remember that in Indian families, what happens behind closed doors, is often supposed to stay there. In such a situation, harsher punishments might not always work. People who oppose death penalty argue that it might worsen under-reporting of the crime due to the fear and shame of sending one’s own family member to the gallows. Rather, it is crucial to dedicate the time and energies to initiatives that explicitly answer issues of dominance, gender roles, privilege, and misogyny in society, particularly for men and boys.

Early intervention through school-based programs aiming to reduce violence and to prompt healthier, more non-violent lifestyles have demonstrated successful results in multiple age groups. The Gender Equity Movement in Schools brought a change in attitudes related to gender among the school children aged 9 to 13 in Mumbai, India. Another example of early intervention is the Delhi government’s decision to initiate conversation around the topic in schools and at homes.

Rape culture is perpetrated by a number of agents such as family members, media, etc. The Indian entertainment industry, for instance, often depicts stalking, dominance, possessiveness and harassment as signs of affection. Boys are especially vulnerable to these messages because they are rarely depicted as victims and are presented with men of questionable morals as “role models”. India, for example, has an objectionable culture of sexualising sister-in-laws (bhabhis, saalis, etc.). The saying that a sister is equivalent to half a wife is popularised by Bollywood movies and TV shows. A look at Sutherland’s theory of differential association would explain the influence of media and pop culture on an individual. He views criminal behavior as learned through interaction with others. If the number of favorable interpretations that endorse breaking the law outweigh the negative interpretations that do not, a person may opt to become a criminal because he would associate himself with those favorable interpretations rather than the negative interpretations.

Similarly, another notion aggressively advocated is that a young woman and a man at the prime of his age can never be just friends. The relationship that they share must be either sibling-like or that of non-platonic attraction. This idea, unfortunately, often makes it way to the judiciary too. Thus, when a trial court in Maharashtra ordered as a bail condition that the accused gets a rakhi tied by the victim, it was a reflection of years of patriarchy and cultural norms.

Conclusion

While there is no definite explanation for why someone commits a sexual offence, merely advocating for harsher punishments would not work. The problem must be seen in a broader, more comprehensive framework. Attention must be paid to how we talk about such offences. In such a situation, undertaking gender-transformative programmes that emphasise remoulding gender norms and address the unequal power structure that exists between persons of different genders while simultaneously building a safer, more supportive environment for victims as well as potential victims of sexual offences would help.

[The author is our legal partner shiny gnana mahima wrote this piece]