India tries to define rape

Archaic and vague, laws on sexual assault are a hangover from colonial times that experts say are preventing Indian women from reporting attacks

DELHI // For Gayatri Sinha, the word "rape" did not apply to how her fiance repeatedly forced her to have sex against her will.

It was not until Ms Sinha had broken up with the man and was recalling the assaults to a friend in 2007 - including the details of how she was left bruised and often bleeding - that it suddenly became clear.

"When I was recounting this to a friend, he said, 'That sounds like rape to me'," said Ms Sinha, whose real name has been changed to protect her privacy. "I had never thought of it that way until then. But of course, when he said it, it was clear that it was rape."

Yet while Ms Sinha, who works in television in Mumbai, realised that under an Indian law she could have filed charges against her former fiance, she chose not to, partly because of the stigma that rape still carries in the country. She also said she didn't know how to prove the charges in court.

Ms Sinha's confusion about laws regarding sexual assault is not rare in India. As a trial is set to get under way tomorrow in New Delhi of six men accused of raping and killing a 23-year-old university student last month, analysts say the definitions of rape and sexual violence, both legally and otherwise, are unacceptably fuzzy. For that reason, rape is chronically underreported, and rarely prosecuted. According statistics compiled by the United Nations, India registers only 1.8 rape cases per 100,000 people - far lower than the United States at 27, the United Kingdom at 29, and Sweden at 63. But India's low figure is misleading. Some media reports have estimated that 90 per cent of rape cases in India go unreported. Aruna Kashyap, a women's rights researcher at Human Rights Watch, said that even that figure can only be a guess.

"Rape is so severely underreported that it is really even difficult to arrive at an estimate," she said.

One reason for the underreporting is the widespread view among Indians that the country's court system will not deal fairly with rape cases.

Last year, the conviction rate in rape cases stood only at 26 per cent, according to the government's National Crime Records Bureau (NCRB), even though reported rapes shot up by 112 per cent between 1990 and 2008.

The archaic state of laws relating to sexual violence discourages victims from informing police, experts say. Under Indian law, only full penetration constitutes rape. That means that other forms of sexual assault, including the stripping and parading women naked, come under the out-of-date legal provision of "outraging" or "insulting" the modesty of women," said Ms Kashyap of Human Rights Watch.

Karuna Nundy, a New Delhi-based lawyer who has argued cases before the supreme court, said these definitions of sexual violence in the Indian penal code are inherited from colonial legislation. The result is legal terminology that is stacked against women, she said.

"Sexual harassment is called 'outraging the modesty of a woman.' Marital rape is explicitly considered to be legal. Stalking is not an offence." If a rape allegation makes it as far as the inside of an Indian courtroom, other obstacles and prejudices frequently await.

Until 2002, the victim of sexual assault was forced to defend her character in court. According to a former clause of the Indian evidence act, a defendant in a rape case could raise as evidence the charge that "the prosecutrix was of generally immoral character".

Even though this clause was dropped from the books, the attitudes underlying it persist in the country's judicial system and a victim of sexual assault can still suddenly find herself the defendant.

Last year, a woman who had been raped by an acquaintance in 2009 was told by the judge that she "had not slapped or kicked or scratched the accused with nails". The fact that the alleged rapist showed no signs of such injuries"indicates the alleged intercourse was a peaceful affair and the story of resistance is false".

The accused was acquitted, although the verdict has now been appealed. The Janeethi Institute, a prominent Indian human-rights advocacy group, has urged that a special government committee should examine the country's laws on sexual assault to expand the definition of rape.

The new definition should "reflect the realities of sexual abuse experienced by women and … remove the exception for marital rape … Any sexual assault could be categorised as rape, and not just an act of penetration", the institute said.

While legal and judicial reform are key to curbing the high incidence of rape in India, fundamental change will come only where it is most difficult and potentially harrowing - in the intimate confines of family homes, schools and workplaces.

About 97 per cent of all rapes in India are committed by people whom the victim personally knows, according to NCRB data. The example of Ms Sinha suggests that only by speaking out, with all the potential costs that might entail, will sexual assaults diminish in India.

"Even if I had known then that what was happening to me was rape, I am not sure I would have reported my fiance," she said. "It is difficult to think of somebody you know so well raping you."