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A COMPARATIVE ANALYSIS OF BLACK RAPE VICTIMS IN THE UNITED STATES AND THE MARGINALIZED SECTION OF INDIA
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A COMPARATIVE ANALYSIS OF BLACK
RAPE VICTIMS IN THE UNITED STATES AND THE MARGINALIZED SECTION OF INDIA
AUTHORED BY - DR. NAVIN KUMAR
Assistant Professor in Bharat College of Law, Kurukshetra, India
Abstract
Rape is universally regarded as the
most abhorrent crime committed against women, regardless of the level of
societal development. Nevertheless, the issue of rape is not a recent one; its
origins may be traced back to ancient civilizations. The severity of the crime
of rape has evolved from ancient to current times. In ancient times, women were
seen as the possessions of men. If any harm was done to a woman, her owner had
the right to seek compensation from the culprit. Nevertheless, the perpetrator
was not held responsible for the sexual assault against the victim under any
circumstances. However, over time, the definition and consequences of rape have
undergone modifications. Despite the failure of the states and its officials to
adequately protect women from sexual assault. Furthermore, with closer
examination, it becomes evident that the most affected individuals are those
belonging to the disadvantaged segment, regardless of their nationality. This
research examines the facts on sexual harassment against women in the United
States and India. When comparing the data on sexual harassment between
marginalized sections (namely Dalits) in India and black women in the USA, we
observe that both groups experience similar levels of harassment. The study
discovered that these phenomena occur consistently across various contexts,
such as police interrogations, medical treatments, and trials. Consequently,
the majority of them are reluctant to submit their case to the authorities. The
majority of countries have implemented policies to provide compensation for
victims of rape. However, the question at hand is whether this sum is
sufficient for the rehabilitation of rape victims.
In
this paper I will discuss all the issues relating to Rape, Compensation and
Rehabilitation throughout the world.
Keywords; Offence,
Feminism, Judgement, Victim, Compensation, Rehabilitation
Introduction:
Crime against women encompasses a
range of offenses, including domestic violence, sexual assault, child
marriages, and female genital mutilation. These actions are infringement of the
most fundamental rights. Since the beginning of existence, women, regardless of
their race, religion, or geographic location, have been relegated to a
subordinate position. The term "rape" is derived from the Latin word
"rapio," which meaning "to seize." It entails engaging in
non-consensual sexual intercourse with a lady through the use of coercion. Rape
is the act of a private individual committing an act of violence against a
woman without her consent or willingness. It is the most extreme breach of
honor. In the case of Bodhisattwa Gautam, the Supreme Court of India stated
that women in our country are unfortunately part of a social group that faces
various barriers and obstacles, resulting in their disadvantaged position.
Consequently, they have been subjected to oppression by men. However, the
Constitution ensures that women have an equal status to men. Sexual violence is
not only a degrading act but also an illegal violation of a woman's dignity.
Not only does it damage her utmost dignity, but it also insults her self-worth.
Rape is not solely a physical act; it also entails the complete devastation of
the victim's entire personality for the remainder of their life. It undermines
the entire social structure, affecting relationships within families,
friendships, and work. Due to the occurrence of rape, individuals tend to make
an effort to steer clear of rape victims. Numerous initiatives were launched by
women and other organizations to improve the status and conditions of women.
However, they did not succeed in achieving their objective. Even the most
developed nations lacked provisions for gender equality.
And due to that women’s movement
started in many Western states in the 1960s and 1970s which promoted the
general personal development and growth for women.[1]
This was the time when feminist raises their voice for equality in every
sector. And after few years their concerns were shifted to political
participation of women and economic representation at work place, as well as
the participation of women in the development process in several country.[2]
As Cathy Roberts points out, “The
feminist understanding of rape in the beginning bore little resemblance to the
viewpoint of psychologists and society in general. Feminism rejected the model
of the lone deviant, acting out perverted fantasies or frustrations, and
substituted instead a figure who had an uncomfortable similarity to the average
man”.[3]
The ancient patriarchs who convened
to draft their early agreements utilized the act of sexual assault on a woman
as a means to establish and consolidate their own dominance. Consequently, it
is perplexing how they could perceive rape as a transgression committed by men
against women. Women were considered as completely subordinate entities and
lacked autonomy. The concept of rape cannot be understood in terms of a woman's
agreement or refusal, nor can a definition that is acceptable to men be founded
on a male-female understanding of a woman's right to control her own body. Rape
was once recognized as a form of property crime committed by one man against
another, metaphorically speaking, before it was formally incorporated into the
legal system. Women were commonly regarded as possessions. Starting in 1970,
every nation was obligated to revise their legislation on women and enforce it
with efficiency.
Legislation on Rape Law in India:
In the early period after
Independence, the socio-economic condition of India was poor and lacked the
efficient laws. But with the progress of time certain changes made by
parliament and judiciary. However there was a hurdle for judiciary to dispose
the cases of rape because the definition of rape and punishment was not
efficient. From 1950 to 1978 the Courts gave a suspicious look on victim of
rape. For Example, previous character of victim, age of the victim, conduct of
victim, resistance by victim etc. There are hundreds of cases which shows the
lack of effective laws regarding rape and compensation of victims of rape. The
main considering point to decide cases of rape was, whether the victim crossed
the 16 years of age, previous character of victim, reaction of victim during
intercourse etc. Till Mathura case[4]
(1979) the people were silent in the nation but after that a big agitation
started by Feminist, NGO’s, Student Union, Opposition Parties etc. And due to
that Indian parliament brought the changes in Indian Penal Code, Indian
Evidence Act, Criminal Procedure Code etc. However, this was the starting point
of changes in the criminal justice system, because after mathura case, the
judiciary and legislature were under the compulsion to make the effective law
and implement it properly. And due to that the Hon’ble Apex Court in Delhi
Domestic case directed the National Commission for Woman to make a policy,
which can help the women to live dignified life. The NCW gave the proposal to
authority but it took much time for implementation. Again the government had
appointed the Malimath Committee[5]
to review the existing criminal justice system. And it gives hundreds of
suggestions regarding the introduction of new provision in criminal law,
evidence, trial etc.
Again in 2012, the Nirbhaya
Case incident forced the mass to come on road for agitation against the
government. The incident became a global matter within of days; in the United
States, media coverage of this case surpassed that of a domestic rape case that
occurred at Steubenville High School in Ohio earlier that year.[6]
In fact, “Over 1515 articles appeared in the United States alone within the
two-month period following the incident” (Row chowdhury 2013). Celebrities were
compelled to take to their Facebook and Twitter accounts to voice their
condemnation of the attack, and started campaigns to end crimes against women
on their own. The demand of the movements was to change the definition of rape
and imposed the hard punishment for accused. The committee was head by retired
judge named J.S.Verma. Hundreds of proposal were suggested by the committee on
rape, acid attacks, sexual harassment etc. The home ministry has also
introduced the Nirbhaya fund for victims of rape with the 200 crore.
Position of Marginalised Section in India:
Woman played a very important role
in every civilization irrespective of caste or section. Even today they are
treated as a goddess and we can find the evidence of it through the Indian
festival and temples. Even hundreds of festivals are celebrated in India on the
name of women. However it is not the real picture of India because at the same
time, the dalits are not allowed to enter in the temple. Mary C. Grey in
her work A Cry for Dignity: Religion, Violence and the Struggle of Dalit Women in India elucidates that the
word ‘Dalit’ means ‘broken’ or
‘crushed’, like Dal- a universally popular dish made from lentils-where lentils
are crushed to produce the sauce, likewise the Dalits see themselves as broken people, deliberately crushed by the
caste system. And this is not the story of pre-independence period, even today
this practice is going in Northern India. Now the question is what has changed
after the independence?. According to me, lot of changed for the upper class
but nothing has been changed for marginalised class. They don’t have the
separate identity except their class and are treated like a chattels.[7]
There was a practice in India, known as Bonded Labour, which has been abolished
in 1976. However it was abolished only in document of the Government. There are
hundreds of family in northern India, which are the part of this system today
also. Whether they are working in the fields, houses, brick
factory etc. Their children know only thing, and that is they have to
work for their owner. The owner just took the advantages of their literateness
and show the documents that their forefather took the debit from them.
Moreover, this is not only limited to general work, they were also sexually
exploited. There are hundreds of cases of sexual assault of dalits and they were disposed by
panchayat (Village Council).[8]
Even after the introduction of Schedule caste and schedule tribes act, they are
not allowed to approach to police station regarding the incident of rape. And
if they report it, the upper caste refused them to work in their fields. They
don’t have enough resources for surviving and due to that they don’t want to go
against the upper caste.
Here are some cases of dalits (Backward
Class)
Uma Kumari the victim was raped by
a man of upper caste in 2003 in Jammu district, Bihar. The same day her mother
approach to police station and the authority assured her for further action
against the accused. But when it comes to the knowledge of accused, he and
other 10 persons from the upper caste dragged Uma and her mother nearby ravine
that night and then took turns to gang-rape both women for 18 hours.[9]
Again a girl known as Pallavi when
she was coming back to home after the visit to her grandmother. She was
kidnapped and gang raped by 12 men from upper caste. They have made a video of
her gang rape and threatened her if she would disclose to someone. The
perpetrators lived locally and eight were from the dominant Jat caste. Pallavi,
who is from the Dalit community, was
so fearful that she remained silent for nine days.
Rekha, a 16-year-old Dalit girl, visited a grocery shop in
her neighbourhood. At the store, the 46-year-old shop owner offered to give her
free snacks and called her to come inside. When she refused, the man forced
Rekha into his store, raped her, and threatened to kill her if she told
anybody. After the attack, the man followed her home and began stalking her.
Multiple times, he came to her house when she was alone and her parents were
out working. He began appearing at other places where she went, including a
playground where she practised sport. For six months, the accused repeatedly
raped Rekha and threatened to kill her and her parents unless she kept silent.
In fear of her life, she spoke to nobody about the abuse.[10]
In a more recent case of a village
in the Hathras district of Uttar Pradesh, a 19-year-old Dalit woman was gang-raped by upper castes men in September 2020,
and a month later succumbed to her injuries in a hospital in Delhi.
Position of Black Women in USA:
Black women became the centre point
of study from 17th century throughout the world. From the slavery
era the negro people were treated as the property of owner or we can say the
white man.[11]
They didn’t have their life, they were just the chattels and have to spend
their whole life in the fields. Whether it is the day or night, they have to
follow the order of owner. Majority of the black women were sexually assaulted
by white man. Furthermore, there were mainly to reasons behind it, first to
satisfy their lust (white man) and the other is to increase their labour
through the child birth. Even there was a perception that if any child would be
born from the black women, his/her capacity to do work would be much better
than white man. Colonial rape laws compounded black
women’s subjugation by excluding their sexual assault. As Steve Wilf makes
plain, “the rape of black women was not acknowledged by early American law.”
The Jim Crow Laws
played a very important role in American history. In this system the black were
tortured and raped just because their body is not their own. The government
officials also misused their power over the black women and man through sexual
assault and rape to dominate them. The courts continued to enforce Jim Crow
laws until the mid-1900s, and African Americans were also subjected to
extra-legal treatment in the form of physical assaults and practices such as
lynching, where police were often present. About 3,000 African Americans were
lynched between the mid-1800s and the early 1900s (B. Smith 2000: 75), and
those performing the lynching’s were seldom prosecuted.
There is a report of
New York State Judicial Commission on Minorities (1991)[12], which includes the
highly officials and eminent like; judges, attorneys, and law professors. They
disclose that “there are two justice systems at work in the courts of New York
State; one for whites, and a very different one for minorities and the poor”.
The panel found inequality, disparate treatment, and injustice based on race.
The panel also concluded that minority cases often take only 4 or 5 minutes in
court, suggesting a form of assembly line justice, and that black defendants
outside of New York City frequently have their cases heard by an all-white jury.
Black women’s
frustrations with their circumstances are perhaps best expressed by one nurse’s
lamentation in 1912; “On one hand, we are assailed by white men, and, on the
other hand, we are assailed by black men, who should be our natural protectors;
and, whether in the cook kitchen, at the washtub - we are but little more than
pack horses, beasts of burden, slaves!” [13] Even the introduction of Bill of
Rights in America has not changed the position of blacks. Greene’s essay
“reveals a pattern of racially discriminatory police, judicial, and sentencing
practices that was typical of the kind of ‘justice’ low-income African
Americans were likely to find in North Carolina and across the country, despite
the victories of the 1960s civil rights movement.”[14]The
behaviour of the authority was so rude towards the black victims of rape. Moreover, the victims
were convicted rather than the accused in negro cases. This approach clearly
proves that the racial discrimination was on high in America. Even in the modern time the life of black women are so
pathetic and they have to live inferior to whites. And if we compare the data
whether it relating to opportunity in education, jobs, business etc, the whites
are on much higher. Due to that they place the black as a slave in modern time
also. And this is the main reason the black women (victims of rape) don’t want
to report their case, because they know, that what would happen in the police
station, hospitals and trials. They don’t want to face the same torture which
she have already faced during the incidence of rape.
The data published by
the U.S. Department of Justice, during 1930 to 1972 clearly states the
mentality of officials. In this period the total 455 people were executed for
rape, and 405 of those were African American.[15]
Common thing in USA and India;
1. There are many things which were
common in USA and India towards the offences against women. Whether it is
related to gravity of offence or rude behaviour of authority. Some of these are
discuss below. Both the countries are on same note in non-reporting the rape case
to authority. Moreover, the reason is also the same, the victims believe that
they can’t get justice due to poverty or racial discrimination.
2. The nature of the rape and majority
of the victims are both common in both countries. In USA the black women are
the subject of whites and in India the marginalise section is the subject of
middle or upper class. Khap Panchayat is a non-judicial body in northern state
(Haryana, Uttar Pardesh, Rajasthan) in India which influence the victims to
approach to authority.
3. The rude behaviour of the authority
is also the common and this is the main obstacle in achieving the justice. For
Example; the police asks silly question during interrogation and sometimes
force them to withdraw their report due to personal benefits or political
pressure.
4. The long process of trial confirms
the victims that they would not justice in this life. Moreover they come from
the poor family so they don’t have enough resources to pay for expenses.
Perception of authority and common man towards victims
of rape:
The authorities play a
significant role in victim’s life from starting point to end. And if the
authorities are not ready to understand the tears of victims then in that
situation, they don’t have any option except to forget their incident. Whenever
any case of rape reported to the police, they are duty bound to investigate
thoroughly and submit the report in court. And it is written in the criminal
procedure code. But in reality it is very surprised that they asks the same
story in front of family member. Moreover they pressurised the victims to
change their statement in the court just for personal benefits. The second
authority which confirms whether rape has been occurred or not is the medical
test. Till 2015 the two finger test was in practice which was totally inhuman.
In this process the doctor’s used the two finger to test whether the hymen was
on its place, if there were no injury on the hymen then no rape has occurred.
But the question is if any women is married and the rape was done by any other
person, how could be hymen injured. The last is the judiciary which has to
finally decide and convicted or acquit the accused. But judiciary is bound to
believe on the documents produced before it. However sometimes the court used
its discretionary powers, but not enough in the cases of rape.
Appraisal and Suggestion:
A society
can’t develop without the participation of all irrespective of gender. But if
we try to differentiate them the result would be worse like in India and
America. Moreover, this is the reason the marginalised section of India is the
attraction point in election times. Because they didn’t achieve anything during
the lifetime but the politician wants to assure them to provide all facilities.
However, these all are the political propaganda, nothing more than else.
I think
that such trauma cannot be compensated only by providing financial assistance
to such victims of rape. But for the purpose of rehabilitation of such victims
the State/ UT Governments have made an attempt by providing financial
assistance to such victims in terms of compensation which varies from Rs.
20,000/- to Rs. 10,00,000. But there must be a fix amount of compensation for
victims. In the current scheme there is a big gap between minimum and maximum
amount and due to that the DLSA/SLSA award only minimum amount. Moreover the
victim of Rape cannot withdraw the full amount of compensation from their
account because the scheme mentioned that only limited amount you can withdraw
and rest of the amount would be in saving account as a Fixed Deposit. The
victim must be free from this condition. The investigating agency must be free
from political pressure. Also the lengthy process of trial must be easy, so
every victim can approach the judicial system.
References:
1. Thomas R. “Indian
Women through the Ages”, Asia Publishing House, Bombay, 1964.
2. Kelly, Liz
& Radford, Jill, Sexual Violence Against Women and Girls, An Approach to an
International Overview, in Rethinking Violence against Women, Dobash and Dobash
eds., Sage Publications, London, (1998), p. 53.
3. Preliminary
Report Submitted by the Special Rapporteur on “Violence against Women”, its
Causes and Consequences, Ms. Rhadika Coomaraswamy, in Accordance with
Commission on Human Rights Resolution 1994/95, UN Doc. E/CN.4/1995/42, 22
November 1994, para. 20.
4. Schulhofer,
Stephen, Unwanted Sex: The Culture of Intimidation and the Failure of Law, p.
24.
5. Susan
Brownmiller, Against Our Will: Men, Women and Rape, Penguin Press p. 18, 1975.
6. Tukaramv.
State of Maharashtra AIR 1979.
7. Tina P.
Lapsia, “Impact of the “Nirbhaya” Rape Case: Isolated Phenomenon or Social
Change” UCONN Library, Spring 5-1-2015.
8. Deliege, R
“The World of Untouchables”, New Delhi, Oxford University Press, 1997.
9. Massey, J
“History and Dalit Identity”, New Delhi, Indian Society for Promoting Christian
Knowledge (ISPCK), 1995.
10. Aloysius
Irudayam s.j. Aloysius Irudayam s.j. Jayshree P. Mangubhai Jayshree P.
Mangubhai. 11. Joel G. Lee “Dalit Women Speak Out Dalit Women Speak Out
Violence against Dalit Women in
11. India “,
Overview Report Overview Report of Study in Andhra Pradesh, Bihar, Study in
Andhra Pradesh, Bihar, Study in Andhra Pradesh, Bihar, Tamil Nadu/Pondicherry
and Uttar Pradesh, 2006.
12. Justice
Denied: Sexual Violence & Intersectional Discrimination-Barriers to
Accessing Justice for Dalit Women and Girls in Haryana, India, 2020.
13. Palmer, Colin A, “Passageways- interpreative History of Black America”
Publisher, Wadsworth, 1998.
14. Report of
the New York State Judical Commission on Minorities, Vol.4, 1991.
15. Richie, “More
Slavery at the South,” New York Independent, pp. 196–200. 1912.
16. Elizabeth
Hinton “An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal
Justice System” Vera Institutte of Justice, 2018.
[1]Kelly, Liz &
Radford, Jill, Sexual Violence Against Women and Girls, An Approach to an
International Overview, in Rethinking Violence against Women, Dobash and Dobash
eds., Sage Publications, London, (1998), p. 53.
[2]Preliminary Report
Submitted by the Special Rapporteur on Violence against Women, its Causes and
Consequences, Ms. Rhadika Coomaraswamy, in Accordance with Commission on Human
Rights Resolution 1994/95, UN Doc. E/CN.4/1995/42, 22 November 1994, para. 20.
[3]Schulhofer, Stephen,
Unwanted Sex: The Culture of Intimidation and the Failure of Law, p. 24.
[4]Tukaram v. State of Maharashtra AIR 1979.
[5]Dr. Justice V.S. Malimath, S.
Varadachary, IAS, (Retd.), Amitabh Gupta, IPS, (Retd.), Prof. (Dr.) N.R. Madhava
Menon, D.V.
Subba Rao “Committee on Reforms of Criminal Justice System” Government of
India, Ministry of Home Affairs, 2003.
[6]Tina P.
Lapsia, “Impact of the “Nirbhaya” Rape Case: Isolated Phenomenon or Social
Change” UCONN Library,
Spring 5-1-2015.
[7]Deliege, R “The World
of Untouchables”, New Delhi, Oxford University Press, 1997.
[8]Massey, J “History and Dalit Identity”, New Delhi, Indian
Society for Promoting Christian Knowledge (ISPCK), 1995.
[9]Aloysius Irudayam s.j. Aloysius
Irudayam s.j. Jayshree P. Mangubhai Jayshree P. Mangubhai Joel G. Lee “Dalit Women Speak Out Dalit Women Speak Out Violence against Dalit Women in India “, Overview Report
Overview Report of Study in Andhra Pradesh, Bihar, Study in Andhra Pradesh,
Bihar, Study in Andhra Pradesh, Bihar, Tamil Nadu/Pondicherry and Uttar
Pradesh, 2006.
[10]Justice Denied: Sexual
Violence & Intersectional Discrimination-Barriers to Accessing Justice for Dalit Women and Girls in Haryana, India,
2020.
[11]Palmer, Colin A, “Passageways-
interpretative History of Black America” Publisher, Wadsworth, 1998.
[12]Report of the New York
State Judicial Commission on Minorities, Vol.4, 1991.
[14] Elizabeth Hinton “An
Unjust Burden: The Disparate Treatment of Black Americans in the Criminal
Justice System”
Vera Institutte of Justice, 2018.
[15] Danielle L. McGuire, “It Was like
All of Us Had Been Raped": Sexual Violence, Community Mobilization, and
the African American Freedom Struggle, The Journal of American History, Vol.
91, No. 3 (Dec., 2004), pp. 906-931.
Article Information
A COMPARATIVE ANALYSIS OF BLACK RAPE VICTIMS IN THE UNITED STATES AND THE MARGINALIZED SECTION OF INDIA
Authors: DR. NAVIN KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/15
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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