SC ruling that sex workers can’t cry rape is dictated by morality not legal reasoning

The Supreme Court, on 12 October, 2016, ruled that a sex worker cannot file a case alleging rape if her customers refused to pay her. A bench of judges, consisting of Pinaki Chandra Ghose and Amitava Roy, stated that while evidence submitted by a women alleging sexual assault should be given significance, it cannot be regarded as the "gospel truth".

The judgment of the highest court in India acquitted three people of rape charges in a case that is close to 20 years old. The three accused had moved the apex court in an appeal, after the Karnataka High Court had convicted them of raping the victim, who used to work as a maid; the victim’s roommate had revealed that she works as a sex-worker at night. The victim had charged the accused of sexual assault and rape in a garage in Bengaluru after an alleged kidnapping. However, the accused were able to challenge this conviction at the Supreme Court, that observed, quite shockingly, that the woman’s "conduct during the alleged ordeal is unlike a victim of rape and betrays somewhat submissive and consensual disposition".

Representational photo. AFP

Representational photo. AFP

"The evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always, without exception, be taken as gospel truth," the Bench declared. The ruling is appalling to say the least, especially when it is founded on the good woman/bad woman dichotomy, and finds no footing on legal reasoning.

The representation and voice of sex workers is practically absent within the Indian rape law paradigm. In 2013, when the Justice JS Verma Committee came up with a set of recommendations for the protection of women and girls from gender-based violence, the report addressed a plethora of issues, including issues of police reform, sexual violence against women and the LGBTQI community. The report briefly touched upon the horrors of prostitution, but it did not advocate the rights of sex-workers from violence, beyond the definition of trafficking within the Immoral Trafficking Prevention Act, 1956. The Committee, emboldened by the horrifying Delhi rape case of 2012, brought up — only to be ignored — the subject of marital rape: it stated that the Indian Penal Code must be amended to remove the exception of marital rape. In doing this, the Committee tried to marry the public and private spaces — stating, and rightly so, that rape and sexual assault are not mere crimes of passion, but an expression of power. Moreover, no relation, including marriage, supplements an irrevocable consent to sexual activity. The Committee’s recommendations, however, remained mute on the issue of consent when it comes to sex workers, thus, leaving no legal recourse for protection against sexual violence from various perpetrators.

Sex workers remain in the twilight area of legal policies and legislation in India, wherein the silence of the law on the identities of sex workers has resulted in more violence in both public spaces, by law enforcement officials, and private spaces, by clients, pimps and partners. In addition to this, societal standards that forcefully fit women into a binary system, in which women are either idolised or demonised pervade through all structures and institutions; even the judiciary writes them off as "women of loose morals". Unfortunately, this thinking also leaves sex workers no representation over a criminal law against rape that should apply to them, in spite of what they do for a living.

In 1972, in Tukaram v. State of Maharashtra (1979) or the Mathura rape case, Mathura, a 16-year-old Tribal girl, had been raped in a police station. The Supreme Court, however, stated that that no rape had taken place since Mathura’s body bore no outward signs of rape; therefore, there was no resistance to the act, and it was a "peaceful affair". The ruling, however, sparked a wildfire of protests by women’s rights advocates, which led to the criminal law amendment in 1983 that dealt with rape. The amendment of 1983 also brought about a change in the Indian Evidence Act, 1872:  Section 114-A was added onto the Evidence Act that dealt with prosecution of rape cases under clauses (a), (b), (c), (d), (e) or (g) of S. 376(2) of the Indian Penal Code, where sexual intercourse by the accused is proved, and the question before the Court is whether such intercourse was with or without the woman’s consent. In such cases, if the woman, in her evidence, states before the Court that she did not consent, the Court must presume that she did not so consent.

The ruling is appalling to say the least, especially when it is founded on the good woman/bad woman dichotomy, and finds no footing on legal reasoning

Ironically, in the present case at the Supreme Court on appeal from three accused from Bengaluru, this aforementioned "presumption as to absence of consent in certain prosecutions of rape" is neither considered, nor debated upon. The Bench seems to have removed the issue of presumption of consent from this gang rape because the women was of "questionable character".

In Budhadev Karmaskar v. State of West Bengal (2011), the apex court, in its division bench, headed by Justice Katju, stated that sex workers have a right to live with dignity under Article 21 of the Constitution of India "since they are also human beings and their problems also needed to be addressed". However, despite this commendable judgment, we often see the courts unable to break out of the patriarchal mould when giving judgments that involve sex workers. Often, even when the judgment is sound, the language is crass and reeks of prejudice; for instance, in the State of Maharashtra v. Madhukar N Mardikar (1990), stated that, "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."

When an institution itself is dictated by morality instead of sound legal reasoning, it should not shock and horrify when the Bench, in October, 2016, declares — "Her vengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised."


Published Date: Oct 13, 2016 06:26 pm | Updated Date: Oct 13, 2016 06:26 pm


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