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By Abhinav Ravi
This article explores the theoretical basis for the criminalisation of sex secured by a false promise of marriage. It argues that having established a standard of affirmative consent and a provision for presuming the absence of consent, the law ought not to treat such activity as rape.
Introduction
Section 69 of the Bharatiya Nyaya Sahita (‘BNS’) criminalises sexual intercourse that is secured by deceitful means or by making a false promise of marriage.[1] The law appears to push the notion that consent that was given under a misconception of fact cannot truly be consent. However, in doing so, the law ends up perpetuating gender-based stereotypes that have plagued the jurisprudence on rape in India and elsewhere. This paper is an attempt to analyse whether there is a principled justification for the criminalisation of sex secured by false promise of marriage from a philosophical perspective. It draws from theories of criminalisation to argue that a law such as section 69 of the BNS is not backed by principle. It argues that there is no qualitative difference in such cases to warrant a treatment that is distinct from those in other forms of rape. It concludes that having already established a standard of affirmative consent and a provision that allows for the absence of consent to be presumed, the law ought to leave it to women to determine the strength of a promise of marriage before engaging in sexual activity.
Constructions and Standards
The Indian women’s movement has, over the course of its engagement with rape law since the late 1970s, brought attention to several features of the law and jurisprudence that appear to maximise the scope for men to secure sexual access. The movement has identified courts as sites of revictimisation and humiliation of rape victims.[2] Judges often employ socio-cultural constructions of ‘real rape’ and the ‘ideal rape victim’ as heuristic devices in their evaluation of the ‘reliability’ of victims before them. Both these constructions are riddled with stereotypes, and reflect an understanding of rape in male sexual terms.[3] For instance, the judgment of the Supreme Court in Tukaram v State of Maharashtra,[4] which is argued to have dramatised Section 155(4) of the Indian Evidence Act which allowed for the ‘immoral character’ of a woman testifying to be treated as relevant evidence,[5] was criticised for its condemnation of disenfranchised women who did not possess a political voice.[6]
The construction of ‘real rape’ is constituted by an unreasonably high standard of force and resistance, and an extremely low standard of consent.[7] The ‘ideal rape victim’ is characterized by her chastity, that she bears marks of violence, and so on.[8] There are several challenges to these constructions. First, these judge-made legal standards tend to exclude from their scope a large number of cases where sexual conduct is nonconsensual[9] or unwanted.[10] Secondly, to conceive of the ideal victim as being a ‘good’ or an ‘innocent’ woman leads courts to discredit victims that fail to meet the stereotypical parameters that this conceptualization entails.[11] Thirdly, as a consequence of the preceding reasons, the trial is often reduced to an evaluation of the reliability of the victim, rather than of the culpability of the accused.
Recognising the victim-centric nature of rape trials, Susan Estrich assesses the possible ramifications of including mens rea as a necessary ingredient of the offence of rape.[12] She recognises that while it is unlikely for a man to accidentally engage in sexual activity, it is possible that a man might claim that he did not realise that the woman was not consenting to the sex. She, however, acknowledges that if the criminal law introduces a requirement of mens rea to the offence of rape, it will necessarily have to account for the ‘negligent rapist’ who engages in sexual activity being negligent as to whether there is consent.
The consequence of such categorisation is the creation of a continuum of sexual offences. This continuum would involve a gradation of offences by their gravity.[13] To illustrate such a continuum, consider the offences of culpable homicide and murder in the BNS, in which there is a gradation on an increasing mens rea requirement. Sections 100 and 101 of the BNS define culpable homicide and murder respectively.[14] Both deal with offences where death is but the mens rea standard required under Section 101 of the BNS is higher than that required under Section 100. Resultantly, the punishment for an offence of murder[15] is greater than that for an offence of culpable homicide not amounting to murder.[16] The BNS also prescribes a punishment for death caused by negligence,[17] which is less than that in the categories of murder and culpable homicide not amounting to murder. The BNS therefore creates a continuum of offences affecting life, graded on an increasing mens rea requirement. The offence of rape in the BNS, on the other hand, does not understand the offence of rape on a continuum founded of varying degrees of mens rea or harm.
On a Penological Justification for ‘Promise to Marry’ Cases
Theoretical Perspectives on Criminalisation
When James Fitzjames Stephen published Liberty, Equality, Fraternity, it initiated a debate with John Stuart Mill on what the legitimate grounds for criminalisation are.[18] About a century later, a similar debate began between HLA Hart and Lord Devlinin the wake of the Wolfenden Report on the decriminalisation of homosexuality.[19] Across these debates, thinkers examined whether morality ought to serve as the normative basis for criminalisation.
Fitzjames and Devlin responded in the affirmative, arguing that it is a legitimate state function to criminalise and punish immorality.[20] Mill and Hart, as well as contemporary liberals such as Joel Fienberg and Ronald Dworkin, responded in the negative, arguing that the utilitarian ‘harm principle’ is the legitimate normative basis for criminalisation.[21] While proponents of the ‘morality approach’ justify criminalisation by reference to moral principles, liberals who subscribe to the utilitarian approach defend criminalisation insofar as the conduct criminalised harms those interests that ought to be considered ‘rights’.[22]
The formulation of the harm principle in the Wolfenden Report identified the private domain as the limitation on the operation of the criminal law.[23] This position, also endorsed by Hart, that private immoral conduct in principle ought to be excluded from the ambit of criminalisation, has been questioned.[24] Gerald Dworkin identifies that the harm principle fails to explain the criminal law in its current operation. He argues that the determination of whether a range of acts ought to be criminalised is left not to an overarching principle, but to a more particularistic calculation.[25] While Wolfenden and Hart took the view that the decriminalisation of private immoral conduct raised no questions about the moral limits of the criminal law, Gerald Dworkin identifies that morality cannot be entirely excluded from consideration in criminalisation.
The Particularistic Calculation Behind Rape Law
In light of Gerald Dworkin’s critique of Hart’s formulation of the harm principle, one may attempt to identify the logic of rape law. It would appear that the particularistic calculation behind rape laws is inextricably related to a power differential, whether physical, psychological, structural, or otherwise, between a male perpetrator and a female victim. Menon identifies three dominant feminist approaches to rape.[26] The first approach treats rape and violence as mutually exclusive categories. The second perspective recognises rape as a unique form of violence because of its gendered character. The third approach suggests that rape is violence and violence precisely is sex.
The third approach, proposed by radical feminist thinkers such as Catharine MacKinnon, identifies that the definition of rape on male sexual terms understands rape as distinct from intercourse, while for women it is difficult to distinguish between the two under male dominance.[27] Consent, under male dominance, becomes a quality of a woman’s being rather than an active choice that she is given to exercise.[28] In light of this approach, the determination of whether a defendant ought to be prosecuted rests on the testimony of the complainant as to the structural hierarchical relationship between her and the defendant and the unwanted nature of the consent, irrespective of the existence of consent.[29]
Kotiswaran argues that the 2013 Criminal Law Amendment in India includes elements of the radical feminist tropes of victimhood, the effect of rape on a woman’s dignity, and so on.[30] The amendment reconceptualised consent in line with the ‘affirmative consent’ model, as a woman’s unequivocal voluntary agreement.[31] It also replaced the existing provision in the Indian Evidence Act which allows for a presumption as to the absence of consent where sexual intercourse, defined as including the acts listed under Section 375 of the Indian Penal Code (now Section 63 of the BNS), is proved.[32]
The amendment thus expands its scope beyond custodial rape cases to cover all situations of aggravated rape.[33] The amendments to the criminal law in India made significant changes to both the substantive and the procedural law with respect to sexual offences.[34] Significant to our discussion on ‘promise to marry’ cases are (i) the inclusion of a standard of affirmative consent; and (ii) the expansion of the scope of rebuttable presumption of absence of consent where sexual intercourse is proved.
Should ‘Promise to Marry’ Cases be Addressed Through the Use of Criminal Law?
As discussed in the previous section, the particularistic calculation behind rape law is to regulate a power imbalance between the female victim and the male perpetrator. It follows then that insofar as the rape law extends into the private domain, such extension is justified insofar as it is a legitimate state function to protect the interests of women, given the power differential between men and women. Conversely, in respect of rape law, there exists a positive obligation on the state to intervene in the private domain insofar as there exists such an imbalance of power. To illustrate, a criticism of the marital rape exception along these lines would be that the state fails to deliver on its obligation to criminalise some conduct that exists in the private domain despite that there exists a structural, and often physical imbalance of power between a wife and her husband.
As discussed earlier, amendments to Indian rape law in 2013 include a standard of affirmative consent, and a rebuttable presumption of the absence of consent where sexual intercourse is proved in all cases of aggravated rape. These amendments are targeted precisely at the power relations between a man and a woman. Courts, despite the inclusion of a standard of affirmative consent, continue to look to Section 90 of the Indian Penal Code (now Section 28 in the BNS) to determine whether consent was obtained under a misconception of fact.[35] Such inquiry by the judiciary is unnecessary, as the standard of an unequivocal voluntary agreement provides the woman, at the least, with the autonomy to say ‘yes’ or ‘no’ to a particular sexual activity. To continue to treat women as perpetual victims who can be deceived into engaging in sexual activity effectively denies them sexual autonomy.[36]
The criminal law, inasmuch as it deals with the offence of rape, ought to extend to so far as there are power relations between the persons involved. The power relations existing in a case of a ‘promise to marry’ are not qualitatively distinct from those in other forms of rape. Having already created a standard of affirmative consent and having included a provision to allow for the presumption of absence of consent, a woman should be allowed the autonomy to evaluate the strength of a promise, as well as the sexual autonomy to engage in sexual activity without giving rise to the assumption that a marital relationship must necessarily ensue.
Underlying the inclusion of ‘false promise to marry’ as a ground for vitiating consent is a complex of moral standards.[37] These standards are epitomised in the jurisprudence on ‘promise to marry’ cases. For instance, the judgement of the Supreme Court in Uday v Karnataka[38] is premised on several socio-cultural stereotypes such as the impossibility of inter-caste marriage, the assumption that consent would not have been given but for the promise of marriage, the assumption that a woman would necessarily notify her family about a self-arranged marriage, and so on.[39]
In Deelip Singh v State of Bihar,[40] the Supreme Court recognised that it is permissible for a man to fail to fulfil his promise of marriage if he is unable to secure parental consent to marry. Courts, in their attempt to reconcile legal standards with social realities, have often created new standards that are undesirable by virtue of being steeped in social norms around sexual morality. For instance, while it may be true in the Indian social context that parental consent to marry is often viewed as important, it is undesirable for such a social norm to be crystallised into a legal standard.
Does the fact that ‘promise to marry’ cases ought not to be treated as vitiating consent to sex necessarily imply that a promise to secure sexual access without intending to deliver on such a promise ought not to be criminalised at all? In my view, it does not. Earlier in this paper, we discussed the idea of a continuum of offences based on the varying degrees mens rea. Sexual offences may similarly be placed on a continuum graded on varying degrees of harm, humiliation, and degradation caused.[41]
An attempt to deceive a woman to secure sexual access, regardless of the success of the attempt, could form a criminal offence, insofar as the offence pivots on the intention of the accused, and not the moral or sexual character of the victim. Therefore, while an offence of this nature may be categorised as a sexual offence in that it criminalises an attempt to deceive a woman into having sexual relations, it ought not to be treated as vitiating to consent to sex. In other words, sex secured by a false promise to marry ought not to be considered ‘rape’.
Conclusion
This article argues against treating sex secured by false promise of marriage as rape. It grapples with the practice in the jurisprudence in India and elsewhere that tends to focus its attention on the character of the victim rather than on the culpability of the accused. In response to this practice, MacKinnon argues that consent standard ought to be done away with altogether and made expressly irrelevant, because the standard is itself informed by a historical power differential.[42] She argues that the consent standard is what causes the rape trial to focus its attention on the victim. It causes sexual histories, for instance, to seem relevant to the question of consent. Similarly, her definition of sexual harassment is founded on the standard of welcomeness of conduct, rather than on consent.[43] While I do not seek to evaluate MacKinnon’s analysis here, it importantly shows that the consent standard itself is a product of power relations. It might perhaps be so that the only way to shift the focus of the trial from the victim to the accused is by making the consent standard expressly irrelevant, and by adopting a different standard that focuses its attention on the mens rea of the accused.
The author, Abhinav Ravi, an undergraduate law student at the National Law University, Delhi.
[1] The Bharatiya Nyaya Sanhita, 2023, § 69.
[2] Pratiksha Baxi, Public Secrets of Law: Rape Trials in India, 10 (Oxford University Press, 2014).
[3] Catharine A. MacKinnon, Towards a Feminist Theory of the State, 177 (Harvard University Press, 1989) .
[4] Tukaram v State of Maharashtra (1979) 2 SCC 142
[5] Baxi, supra note 2, 12.
[6] Baxi, supra note 2, 17.
[7] Susan Estrich, ‘Rape’ (1986) 95 The Yale Law Journal 1087; Baxi supra note 2, 10-14.
[8] Baxi supra note 2, 16.
[9] Estrich, supra note 7, 1161.
[10] Jannet Haley et al., Governance Feminism: An Introduction (Minneapolis: University of Minnesota Press 2018)86
[11] Partners for Law in Development, Marriage, Sexuality, and the Law April 28, 2015, available at <http://pldindia.org/wp-content/uploads/2015/11/1-Marriage-sexuality-and-the-law.pdf> (Last visited on January 4, 2024)
[12] Estrich, supra note 7, 1096.
[13] Preeti Pratishruti Dash, (2021) 28 Feminism and its Discontents: Punishing Sexual Violence in India Indian Journal of Gender Studies 15
[14] The Bharatiya Nyaya Sanhita, 2023, § 100. § 101.
[15] The Bharatiya Nyaya Sanhita, 2023, § 103
[16] The Bharatiya Nyaya Sanhita, 2023, §.105
[17] The Bharatiya Nyaya Sanhita, 2023, § 106
[18] Robert Reiner, Crime: The Mystery of the Common -Sense Concept (Cambridge: Polity Press, 2016)40 .
[19] Heta Hayry, ‘Liberalism and Legal Moralism: The Hart-Devlin Debate and Beyond’ (1991) 4 Ratio Juris 203; Reiner supra note 18, 42
[20] Gerald Dworkin, ‘Devlin was Right: Law and the Enforcement of Morality’ (1999) 40 William & Mary Law Review 927
[21] Lacey and Zedner, Legal Constructions of Crime in The Oxford Handbook of Criminology(2012).
[22] Reiner, supra note 18, 41.
[23] H.A. Hammelmann, Committee on Homosexual Offences and Prostitution 21 The Modern Law Review 68 (1958).
[24] Reiner, supra note 18, 41.
[25] Dworkin, supra note 20, 935
[26] Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law, (Urbana and Chicago: University of Illinois Press 2004)110 .
[27] MacKinnon, supra note 3, 173.
[28] Ibid., 174.
[29] Haley et al., supra note 11, 86.
[30] Ibid., 100.
[31] The Indian Penal Code, 1860, §.375.
[32] The Indian Evidence Act, 1872, § 114A.
[33] Haley et al., supra note 11, 101.
[34] Neetika Vishwanath, ‘Ethnographic Study of Rape Adjudication in Lucknow’s Trial Court’ (2020) 16 Socio Legal Review37
[35] Arushi Garg, ‘Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India, (2018) 28 Social & Legal Studies 4
[36] Neetika Vishwanath, ‘Controlling women’s sexual autonomy’ The Hindu (August 31, 2023) https://www.thehindu.com/opinion/op-ed/controlling-womens-sexual-autonomy/article67251409.ece
[37] Neetika Vishwanath, ‘The Shifting Shape of the Rape Discourse; (2018) 25 (1) Indian Journal of Gender Studies 19
[38] Uday v. State of Karnataka (2003) 4 SCC 46.
[39] Garg, supra note 35, 6.
[40] Deelip Singh v. State of Bihar (2005) 1 SCC 88.
[41] Dash, supra note 13, 15.
[42] Julia-Simon Kerr, ‘Relevance through a Feminist Lens’ in Christian Dahlman and others (eds),Philosophical Foundations of Evidence Law (Oxford University Press 2021) 371 .
[43] Ibid., 372.
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