New Delhi: “When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame.”
“…that is not the way our women react when they are ravished”.
“In case of ravishment when grown up virgin girl, unmarried or married woman, offer resistance, marks of violence, such as bruises, scratches of fingernails, etc. may be found on the external genitals, perineum, abdomen, chest, back, limbs, neck and face. Love bite marks are also seen on the cheeks, neck, inner thigh etc. due to sucking pressure and teeth imprints.”
The above are excerpts from a few judgments in cases of rape and sexual harassment, passed by Indian courts in the past few years.
Judges across the country often use the word “ravished” or “ravishment” as a synonym for rape in their judgments. The dictionary meaning of the word includes not just “to seize and take away by violence” and rape, but also “to (be) overcome with emotion (such as joy or delight)”.
Despite its “romantic connotations”, however, legal experts say evidence from language and history shows that this “archaic” word continues to be used as a synonym for rape.
This usage also began at a time when women were “viewed as property”, and so it continues to “bring in problematic notions of a woman’s sexuality as property”.
This has, therefore, led to several experts asserting in recent months that “the urge to use archaic and patriarchal synonyms (in judgments) must be resisted”, and that “it is high time we stop using these archaic, regressive and ambiguous words” in legal parlance.
The demand to stop the use of such language in courts has caught on especially after a judge used the word “ravishing” while discussing the subject of marital rape last month.
‘A romantic abstraction’
The word “ravished” owes its origin to the Latin ‘rapere’ and ‘raptus’. Both the words mean seized or to seize. The Merriam-Webster dictionary explains that the word originated from the Latin rapere, which meant “to seize and carry off, take away by force, carry off a woman with the intent of sexually assaulting her”.
Bryan A. Garner, editor in chief of Black’s Law Dictionary, explains in the book how the word should not be used as a technical or legal equivalent of rape, because “it has romantic connotations”.
In his book, ‘Garner’s Modern English Usage’, he explains that ravish means not only “to rape” but also “to fill with ecstasy or delight”, and that “the term describing the act (of rape) should evoke outrage; it should not be a romantic abstraction, as ravish is”.
As for the usage of the word in court, senior advocate Rebecca John told ThePrint, “Historically the use of the word ravished, instead of rape, obfuscated the crime of sexual assault and violence, giving it a colour of something that was manly and acceptable and was even used as a literary trope.”
Former judge and a lawyer at the Delhi high court Bharat Chugh echoes John’s concerns. “This is not only a very archaic term, which brings in problematic notions of a woman’s sexuality as property, but its usage also leads to needless ambiguity and confusion,” he told ThePrint.
“When the legislature and courts — in their collective wisdom — have characterised the offence as ‘sexual assault’, it should be the same word that is used in judgments for clarity and precision, if not for anything else. This also ensures that we are not insensitive and do not trivialise what is a most heinous offence,” he added.
‘A form of theft’
The multiple meanings and usage of the word “raptus” also led to “conflation of rape and abduction” in legal cases in medieval England.
Back then, England saw laws being passed prohibiting “ravishment” which, according to researchers, did not clearly distinguish between sexual assault or rape and abduction of women.
Therefore, while these laws acknowledged rape as a crime of violence against women, experts point out that it was also considered a “form of theft” in which the women’s consent was largely irrelevant. The primary victims in such cases were also the husbands or fathers, and not the women themselves. Rape was said to have “entered the law through the back door…as a property crime of man against man. Woman, of course, was viewed as property”, writes Susan Brownmiller in the book Against Our Will: Men, Women and Rape.
Back in 1872, when the Indian Evidence Act was drafted by Sir James Stephen, the word found its way to Indian law books as well.
Section 155(4) of the Act, as it stood then, said that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character”, in order to discredit her testimony.
This is the opposite for the accused. Section 53 said that “in criminal proceedings, the fact that the person accused is of good character, is relevant”. Section 54 also made his “bad character” irrelevant.
It took two reports by the Law Commission of India and suggestions from various organisations for Section 155(4) to be removed from the Evidence Act. The change came only through an amendment in 2002, 130 years after the provision was introduced.
However, the word “ravished” is used in at least four other places in the 1872 law, in illustrations attached to the provisions. For instance, an illustration attached to Section 8 of the law — which explains motive, preparation and previous or subsequent conduct — says, “the question is, whether A was ravished”, and then goes on to explain what sort of conduct is relevant after ‘A’ was allegedly raped.
‘Ravishment by a stranger’
The word “ravished” or “ravishment” also continues to be used as a synonym of rape by the courts in their judgments.
A quick search of the word “ravished” on legal search engine IndianKanoon.org brings up over 95,000 results from various courts across the country, and several of these verdicts date back to pre-independence and pre-Constitution times. For instance, there are records of an English judge at the Calcutta high court using the word “ravished” as early as 1890.
However, John asserted that “the language used in judgments must be formal and legal”, and that since rape has been defined in the Indian Penal Code, “the urge to use archaic and patriarchal synonyms must be resisted”.
In a judgment passed in June 2020, the Karnataka high court granted pre-arrest bail to a rape accused, taking serious note of the “unbecoming” conduct of an alleged rape victim who slept after being “ravished”.
“…the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished,” the court observed.
Chugh referred to this order, saying that “the use of an adjective like that also becomes a metric to judge whether the crime took place or not which is problematic”.
He asserted that “such adjectives become a marker of how we view the conduct of a survivor, which can never be uniform”.
As recently as last month, usage of the word was found in Delhi high court judge Justice C Hari Shankar’s opinion in the marital rape case. Disagreeing with the other judge on the bench, Justice Shankar had upheld the exception in the Indian Penal Code (IPC) that exempts a man from being prosecuted for rape for forcibly having sexual intercourse with his wife.
He had compared a situation where a stranger has forcible sexual intercourse with a woman, with a situation in which a husband has forcible sexual intercourse with his wife.
“If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger,” Shankar had observed.
Asserting that “it is high time that we stop using these archaic, regressive and ambiguous words”, Chugh highlighted the importance of “certainty, precision and accuracy” in judgments.
“This is most important also for the reason that ignorance of law (and by extension, judgments) is no excuse, and words that make understanding the law/judgments incomprehensible should be avoided. It’s simply not fair to the common citizen, who’s the consumer of these judgments and of justice, as an essential service,” he said.
(Edited by Poulomi Banerjee)