When she cries rape

When she cries rape

16 Jun 2009, 0000 hrs IST, ROSHNI K OLIVERA , TNN
http://timesofindia.indiatimes.com/Potpourri/When-she-cries-rape/articleshow/4658865.cms 
The questions being asked in Mumbai, in Bollywood, are not whether actor Shiney Ahuja did, as was reported, rape his 18-year-old domestic maid or had, as is suspected, consensual sex with her. The questions being asked are what happens to the man in such a case?
 
 How do the police distinguish between what was rape and consensual sex? Is it just the woman’s word against the man’s? What if she is lying? Or out to exploit and blackmail the man? Trap him into marrying her after what was just an affair but mutual agreement? And… further, what happens next? What is the sentence for rape? And can there be one for consensual sex between adults? Also, if (as in Shiney’s case) the man happens to be married and had consensual sex, is he only guilty of adultery? And if he is married and has committed rape, what kind of sentence does he face for the crime? Most Indian laws, framed during the colonial days of the British Raj, remain as grey as ever with prosecuting authorities struggling to get convictions while defence lawyers pick holes in the chargesheet. Even while the police muddle their way through the many ‘rape’ cases in their files, BT posed these questions to criminal law experts.

Can consensual sex be easily proved?
“In the case of rape, the evidence of the victim is enough,” says lawyer Satish Maneshinde. “Proving it wasn’t rape but consensual sex, is very difficult.” If there are no signs of aggression on the victim, it could indicate consensual sex, but that’s not sufficient as evidence. “To prove consensual sex, there should be evidence in the form of SMSes or telephonic calls which show there was an involvement. Even if the victim is known to be a prostitute or a condom was used, yet it’s not accepted as consensual sex,” says Maneshinde adding, “Where the victim is from a weak social and economical background or there’s an employer-employee angle, the tilt is always towards the victim.”

What amounts to rape?
According to Section 375 of the IPC, a man is said to commit “rape” when he has sexual intercourse with a woman… 1) Against her will 2) Without her consent 3) If her consent was obtained by putting her or any person she’s interested in under fear of death or of hurt 4) With her consent, when the man knows that he is not her husband, but she believes that he is the man she is lawfully married to 5) If consent was given under intoxication or unsound mind.
But change is the need of the hour. Lawyer Shrikant Bhat makes a point: “This section was drafted between 1833 to 1837. Times have changed, physiology hasn’t changed. So what requires to be changed is the interpretation. The word ‘consent’ or ‘against her will’ has to be interpreted such that one question is asked — whether the girl had the sexual desire during the period of physical intimacy (not necessarily intercourse). Lubrication of vagina would be one of the indications of sexual desire which medically can be found out. If the girl had a sexual desire then it’s not rape.”

Minor versus adult?
If the victim is a minor, then there’s no question of consent; it amounts to rape in any case, according to the IPC. When the victim is less than 16, it doesn’t matter whether the sexual act was carried out mutually or if the perpetrator and the victim were involved at one point.

What about adultery?
Whether it’s rape or consensual sex, what about adultery if the person is married? “Generally our system doesn’t take serious cognisance of adulterous activity. That’s because the aggrieved party, which is the wife, has not complained,” explains lawyer Majeed Memon. “There are two different aspects that come to the fore in the Shiney Ahuja case — 1) The exploitation of maids or aspiring actresses 2) You cannot rule out a conspiracy to falsely implicate a celebrity.”

Are men at a disadvantage in our system?
In matters of rape, men are always at a disadvantage in our system, feel experts. “That’s because they are considered the more aggressive of the two sexes,” says Maneshinde.

Bhat adds, “Section 114 A of the Evidence Act says, ‘If she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.’ An innocent man will be convicted on this presumption. Also, the previous sexual conduct of the girl cannot be brought on record in the inquiry or cross examination under the same Act.”

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