Rape adjudication in India: a reflection of female autonomy or a reinforcement of stereotypes?

Thesis

The December 16, 2012, Delhi gang-rape case sparked a sorely needed debate in India on the issue of consent in rape law, leading to the Verma Report and the 2013 Amendment. This amendment brought about some key reforms in the rape law, such as: an expansion in the definition of rape (beyond penile-vaginal intercourse) and a new positive definition of ‘consent’. However, by Parliament’s decisions such as retention of the marital rape exception, refusal to make the provision of rape gender-neutral, and retention of the death penalty, this amendment fell short of the goals set by the Verma Report.

To analyse the post-2013 judicial discourse pertaining to rape, this thesis studies a total of 1,910 judgments – 1,664 trial (Delhi and Kerala) and 246 appellate (all High Courts across India) judgments - over a period of nine years, from April 2013 to March 2022. The data analyses expose that the 2013 Amendment and the new definition of consent is rarely applied. To reach the verdict, the courts continue to rely on stereotypes such as lack of resistance, complainant’s ‘unnatural’ conduct, shame-honour dichotomy etc. The judges are unclear about what constitutes ‘False Promise to Marry’ (FPM) cases and merge the categories of ‘non-consensual sex’ and ‘tainted consent due to FPM’. A crucial finding is that even though 60% of the complainants turned hostile in the courtroom, there has never been a judicial enquiry into the reasons for the complainant withdrawing support from the prosecution, such as possible coercion. The data analyses reveal that both male and female judges are equally likely to misclassify a case as FPM, omit discussion of the new definition of consent, and use stereotypes. Thus, the 2013 statutory legal changes were not sufficiently powerful to shift the narrative to a robust discussion on consent or dislodge deep- seated stereotypes amongst judges.

Authors: Cherupara Vadekkethil, A

• DOI: 10.5287/ora-mvakrgqyw
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: consent; stereotypes; Indian criminal law; gender; India; discrimination; rape
• Subjects: Law; Consent (Law); Criminal liability