05 September 2016 National Conversation: Two feminists critique the new rape law

‘Can’t Compare Brutal Gang-Rape With Forced Oral Sex’

Feminist lawyer Flavia Agnes, on the implications of the new rape law, especially in the context of the Mahmood Farooqui rape case
‘Can’t Compare Brutal Gang-Rape With Forced Oral Sex’
Photograph by Apoorva Salkade

Feminism, in its essence, is a movement for equ­ality and justice for all. Feminism does not stomp out nuance; it trains us to highlight that which has been inv­isibilised by majoritarian opinion and attitudes. It seeks to unite a world that has been divided by gender, race and class distinctions. In the context of the recent Mahmood Farooqui rape case, opinions have been deeply divided on both the judgement and the quantum of punishment awarded. There have been calls for expressing outrage on social media that suggest that those who do not publicly condemn the acc­used are being hypocritical and betraying the feminist principles they have espoused so far. In an environment where facts, doubts and nuances are struggling to find space for expression, Natasha Badhwar spoke to Flavia Agnes, a feminist lawyer and legal activist, to understand both the implications of the new rape law and the specificities of this case where an accused has been sentenced to seven years in jail for performing forced oral sex. Excerpts:

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In the context of the Mahmood Farooqui rape case, opinions are deeply divided on the conviction and sentencing. As a lawyer and a feminist, what is your take on the 2013 amendment to the law that has widened the definition of rape and prescribed a minimum sentence of seven years?

My lifelong work with our organisation, Majlis (in Mumbai), has been of providing socio-legal support to survivors of sexual violence. Despite this, I believe that human rights of the accused cannot be violated in a criminal trial. Gender justice cannot be divorced from human rights.

I have always been against stringent punishment, either as retributive justice or for its deterrent value. It is obvious that the rationale of deterrence has not worked, though my position has been unpalatable for many within the women’s movement. When the definition of rape was widened, we needed to re-examine the provision of mandatory minimum punishment, which we failed to do.

In the Farooqui rape case, the defence had put forth many arguments that showed how improbable the alleged act of rape was and how there were several inconsistencies and gaps in the prosecution’s case. These have not been taken into consideration by the judge. What is your reading of the judgement?

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“Feminism is not a card-holding political party that can wield the whip. We need multiple and nuanced voices. It’s important to resist (the pressure to conform).”

Let me confess—I am not a friend either of the accused or the victim. All the same, I want to point out one thing. In the special law for sexual assault of children, the Protection of Children against Sexual Assault (POCSO) Act, enacted in November 2012, the burden of proof has shifted to the accused and made the law really draconian. Despite this the rate of conviction under this law is very low.

But this is not the case with the rape law amendments of 2013 and the burden still lies with the prosecution to prove an off­ence beyond reasonable doubt and the benefit of doubt should go to the accused. If the inconsistencies and gaps have not been taken into consideration, it would be a major lacuna, which needs to be set right at the appeal stage.

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Photograph by Sanjay Rawat

What are the checks in the system to protect those who have been wrongly accused of rape or sexual assault? Is benefit of doubt for the accused being replaced by the burden of proof?

The publicity this case has received makes it seem that Delhi has had only two rape cases worth reporting—the Nirbhaya case and the Mahmood Farooqui case. They are located at the opposite end of our rape laws—one an extremely brutal gang-rape and murder by strangers and the other, non-penetrative sexual abuse by a known person, which earlier would come within the scope of molestation where the maximum punishment was two years. I do not endorse the view that whether it is oral sex by a friend in his drawing room or a gruesome gang-rape where weapons are used causing grievous injury, the same yardstick must be used for assessing the harm or trauma caused by invoking the premise that a rape is a rape. Bringing the violent imagery of a brutal rape while arguing this case, according to me, is highly inappropriate, even if it is only to make a point in support of the survivor. Such comparison may only serve to dilute the brutality of the Nirbhaya case.

In your experience, how does media hype, and the subsequent pressure that gets created when cases become too high-profile, affect judgements?

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Cases become high-profile due to many other factors as well. For instance, a case becomes symbolic to protect the reputation of a city or the honour of a country etc. These are complex situations and the judge is under tremendous pressure. In such situations, the trial judges lean more towards conviction even if the case is not fit for conviction so that they don’t rec­eive flak from the media or activists.

“Bringing all the violent imagery of a brutal rape, where weapons are used, while arguing Mahmood Farooqui’s case is not quite appropriate. It dilutes the Nirbhaya case’s brutality.”

The risk of hurting public sentiments, national honour or honour of a city (like Mumbai) is a slippery terrain within criminal law and invoking these sentiments tends to violate the rights of the accused. It is important to stay within the framework of evidence-based conviction or else there will be miscarriage of justice.

It is a feminist principle to support and demand justice for all victims of sexual assault, irrespective of the degree of bodily violation. At the same time, there needs to be a space where distinctions about the amount of coercion used, the extent of physical injury and the nuances of age and ability of the victim are taken into account and spoken about.

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We have worked with more than 600 rape survivors. I don’t believe that rape is a state worse than death, as it is often portrayed to be in our society, and that it is the end of a woman’s life or that a woman is never able to overcome the trauma of rape. With adequate support, many are able to overcome the initial trauma and move on with life. I also do not believe that only when the acc­used is given maximum punishment is the victim able to overcome the trauma of rape. It is necessary to delink the two. In some of the violent cases we have had experience in dealing with, the police are not able to detect the rapist or there isn’t enough evidence to convict. Does this mean that these women will never overcome the trauma of rape?

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Photograph by Tehelka

Within the feminist discourse, how can we talk about privilege, justice and deg­rees of vulnerability and violence without being accused of selling out in favour of the accused and being anti-feminist?

Feminism is not a card-holding political party that can wield the whip. We do need multiple and nuanced voices and only through such debates can the feminist movement grow. It is important to resist (the pressure to conform), and oppose the culture of name-calling, so long as one is able to hold on to one’s position and logically argue the same.

There is a campaign to bring sexual vio­lence in a marriage within the scope of rape laws. What are the nuances that must be taken into consideration?

The fact is that rape within marriage would constitute sexual violence under the Domestic Violence Act and section 498A (cruelty to wives). The media continuously projects that women who are sexually violated within marriage have no recourse in order to push for inclusion of marital rape under section 376 of the IPC. This would be counter-productive as then we would be placing ‘rape’ in its widest definition (including oral sex which does not involve brutal assault) on a higher pedestal than brutal physical violence such as a fractured skull, or a broken rib or multiple knife injuries, with the argument that rape is the worst violation (a state worse than death) and everything else is secondary or less serious. This argument is based on a warped logic and does not in reality work in fav­our of victims of violence.

Women want justice but all survivors do not necessarily want to surrender to the complex machinations of the law and become helpless within its processes. Restorative justice can also be a way for women to regain their sense of autonomy, integrity and dignity. Do you think there is scope for it in the Indian context?

I think this is important. One of our recent laws, Sexual Harassment of Women at the Workplace, 2013, provides for it. However, there is a fear that if it is introduced in the rape law, the accused may be able to exert pressure upon the victim and force her to retract. Many things need to be taken into account, particularly the respective class position, the power balance that operates and whether the victim belongs to a marginalised section and suffers from multiple levels of vulnerabilities. It is important to work towards this, particularly in intimate partner violations.

It is the duty of the judge to ‘do justice’ at all times. Justice not only must be done, but also must be seen to have been done.


(Flavia Agnes is a women’s rights lawyer and co-founder of Majlis, a legal and cultural resource centre in Mumbai. Her aut­obiography is titled, My Story...Our Story Of Rebuilding Broken Lives. Natasha Badhwar is India’s first woman news cameraperson. She is also a columnist and filmmaker.)

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