Thursday, 17 January 2013

The Conundrum of Choice

At a time when sexual harassment and violence are taking increasingly horrific forms, should we continue with the idea that sex obtained on a false promise – especially that of marriage – is also rape?
The Delhi High Court held a few days back that if a man has consensual sex with a woman after promising marriage and then later backs out, it amounts to rape.  The same high court had passed a similar order in another case in February 2010. However, the Bombay High Court took a different tack in June 2010, when it said that a sexual relationship on a false promise of marriage is not rape.
Apparently, Section 375(4) of the Indian Penal Code states that consent for sex obtained under a false pretext amounts to rape.
But if the sex is consensual and the woman has not been subject to physical violence or other forms of coercion, why should the genuineness (or lack of it) of the pretext matter? Blackmail and blandishment are two different things. When a woman gives in to a blandishment – a job, a promotion, a role in a film, marriage – she has exercised a choice in the hope of a future gain. She continues voluntarily in that sexual relationship as long as the gain is in sight. If that gain doesn’t materialise, to my mind, it was a wrong choice on her part. How does the sexual relationship then become a forced one, which is what rape is?
When someone pays in advance for a good or service and doesn’t get it, that becomes a case of cheating. Shouldn’t this also then be a case of cheating, instead of rape?
I am particularly intrigued by the false-promise-of-marriage line. Doesn’t it amount to saying that a sexual relationship is okay only if marriage is the ultimate objective? And that once a sexual relationship has been established, it has to result in marriage? Does this have a place in a modern society?
Consider a situation where a couple is engaged and they decide to get intimate. No force was used. The woman wasn’t drugged. She knew exactly what she was doing. At some point, the man realises that the relationship is not going to work out and that the marriage will be a disaster. So, instead of marrying and then divorcing, he decides to end it before the marriage. That could make him vulnerable to a rape charge by a vengeful woman. Would that be fair?
I think this provision stems from the mindset that a woman who has slept with a man is `spoilt’ and her life is finished because no one else will marry her. It is this mindset which prompts judges to broker compromises in rape cases, with the rapist offering to marry the victim. It is the same mindset which, therefore, says if a man `spoilt’ you by promising to marry you and then doesn’t, then he has ruined your life forever and so he should be considered a rapist.
Would it not be better for women to be counselled to accept the fact that they made a wrong choice of potential life partner and if the man had exploited them, they were better off without him and they should get on with their lives?
I realise it is not such a simple issue. Uneducated women or those from poor backgrounds may not be making an informed choice when they get into a sexual relationship with someone who has promised them something. There may definitely be an element of exploitation there. There is the example of the girl who was being sexually exploited by a councillor or MLA whom she had approached for help in getting a ration card. Such women need some kind of protection and relief and such men definitely need to be punished. But is Section 375(4) the right way to go about it?
I just feel that this IPC provision betrays an outdated mindset and takes away from the seriousness of the issue of rape, especially the brutal and perverted forms it is taking these days.
Perhaps mine is an armchair, ivory tower, even urbanised view, which is not in sync with ground realities. This post is really just to flag an issue and I would love to hear what other people, especially women, feel. Those reading this, please comment and please share so others can comment.
But please don’t make sexist or abusive or vulgar comments. Comments are moderated and such comments will not be posted.


Shuma Raha said...

Totally agree with your argument. When sex is consensual, it cannot be termed "rape" -- no matter what its context. The woman may have been led to believe that she would get something in return -- a job or marriage -- and may not get what was promised. But the law must make distinction between breach of promise and a situation where she is violated by force.

Jannavi said...

So would arranged marriage prenups be one way to go in present day urban India?

sanam singh said...

In India the Supreme Court has ruled that consensual sex does not amount to rape as there is no straight-jacket approach to determining whether the woman's consent was conditional or under the misconception of a promise of marriage. There is a breach of trust provision in the IPC (section 406) which is often clubbed together with the subsection you refer to; the compounded charges are often relied on to seek a greater sentence.

In the US, some states do have laws against "seduction", i.e., a man's coitus with a previously "chaste" woman under promise of marriage. This promise must have been unconditional, however, in order to lead to conviction. Other cases suggest it isnt rape, even if a doctor persuades a woman that sexual intercourse is necessary to return to heal, or impersonates her husband.

There are a number of cases in England of women who got sexually transmitted diseases (or had sex with someone HIV positive that didnt disclose this), the men were tried for rape on the basis that consent was vitiated; in these case, the men were acquitted. The same with a prostitute who wasn't paid; its fraud not rape - same thing conditional consent.

In Australia, a man got off after a fake wedding ceremony; it wasn't rape if he pretended to marry a woman and got her "consent"...

Anonymous said...

Madhur Bhandarkar's friend Preeti Jain had the audacity to say that Madhur had raped her 16 times between 1999 and 2004 on the pretext of casting her as actress in his films. I pity both of them - Preeti for not being smart enough to see the obvious in this kind of relationship and Bhandarkar for getting caught in an act which is considered so normal in Bollywood. One would readily agree with what you have said but there are so many grey areas that it gets more and more complex once you try to wrestle with the issue. Perhaps Dr Ram Manohar Lohia was close to the mark on this issue when he wrote that "मर्द और औरत के बीच बलात्कार और वायदाखिलाफी को छोड़ कर कोई भी रिश्ता जायज़ है !" The recent gang-rape case has further flummoxed the girls and their parents. I think, society is evolving itself and let's hope that in our life time only, there will be a day when girls will freely exercise their rights in the matter of sexuality, when virginity may not be an issue and when rapes will be abhorred and only be remembered as something like 'Sati Pratha' which existed in the past.
V.B. Arora

sumitra said...

agree with you, yes, it may be an ivory tower, urban viewpoint, but it is usually such brethren women who are often vengeful, and use such provisions to harass men... such women would essentially be saying "I was chaste till you 'seduced' me"... in other words, (a) are unwilling to take responsibility for their choices/decisions and (b) are telling the world they are still "chaste" and it's the guy who "coerced" them into having the sex (and therby, possibly, giving up her virginity. And we all know how important it is to be a virgin when you get married!)

neela said...

Fully agree with what you are saying. I was not aware that a breach of promise to marry is considered rape in the instance if the couple have had a physical relations. That's an odd one. You have explained it as a result of our myopic view of physical relations before marriage and perhaps it is so. While the one is cultural tradition - but to go to extremes by deeming it rape and then penalising the man, is really taking it too far. Almost like turning it the tradition on its head. Wonder what the statistics on such 'rape' cases are. In the west it is considered advantageous for a couple to live together b4 considering marriage, it is a way of getting to know each other better etc.etc. I wonder what would indian courts & lawmakers have to say of that. As always they will say- it works for the westerners but is not for us.... You know I have always felt that we in india are a contradiction of sorts.

sunita said...

This is really a tough one. In my opinion, any act between a man and a woman which is consesual, cannot be termed as" rape". Rape is barbaric , a heinous crime and a violation of an individual's physical and mental psyche. In rape force is the operative word. Cheating is a breach of trust and can definitly affect a person adversely both mentally and physically. But if a man and a woman enter into a relationship and the man opts out of it with or without the commitment , i will not call it a rape, maybe call him a jerk , for toying with the feelings and stringing along the person and letting them down . Law should be there to defend women in such a situation, but , on the other hand, if a woman enters into any relationship fully aware of the consequences then the best option is to move on if the relationship turns sour. A clear demarcation has to be made between the two to avoid any confusion.

Subhashis said...

How Very True - can not agree with with you more