Moot point: Shiney Ahuja’s lawyers claim that the actor had consensual sex with his maid

Did Shiney Ahuja do it? Or didn’t he? The debate continues as to whether or not the Bollywood actor raped his 18-year-old domestic help or had consensual sex with her. Though the true facts of the matter will hopefully come to light soon, the Shiney Ahuja case has once again thrown the spotlight on the plethora of loopholes that continue to dog the Indian rape laws — quite often leading to the accused being acquitted.

“The testimony of a rape victim has to be corroborated by medical and circumstantial evidence for the case to stand. But there are instances where such evidence is twisted or falsified. The doctor examining the victim can be influenced or he may be negligent, the investigating police officer can delay the process of accumulating evidence like semen samples or the victim may also lodge the complaint late out of fear or social stigma. All these factors lead to the loss of vital evidence and makes it easy for the accused to evade punishment,” says Siladitya Sanyal, criminal lawyer, Calcutta High Court.

Section 375 of the Indian Penal Code (IPC) states that a man commits rape when he has sexual intercourse with a woman against her will, without her consent, or if her consent is taken by threat, or if consent is given under intoxication or in unsound mind. “The problem lies with the interpretation of the word ‘consent’,” points out Sanyal.

Consensual sex is often proved in a court of law by presenting evidence in the form of SMSes or telephone calls showing some intimacy between the victim and the accused. “But does that mean that a man who rapes his girlfriend goes scot free,” asks an indignant Sanyal.

The rape laws in our country have been amended many times and these have been primarily in favour of victims. In 1983, Section 376 of the IPC was amended and it was stipulated that punishment for rape should not be less than seven years’ imprisonment. It also provided for in camera trial and made the disclosure of the victim’s identity a punishable offence.

Even Section 114A of the Indian Evidence Act states that if the victim says that she did not consent to the act of sex, the court shall presume that she did not. “Hence, the burden of proof is on the accused,” explains Supreme Court lawyer Amiya Chakraborty.

Despite that, the conviction rate in rape cases continues to be abysmal in our country. According to the National Crime Records Bureau, in 2007 there were 20,737 cases of rape in India, up from 19,348 in 2006. The conviction rate, however, was just 26.4 per cent. Besides, the National Commission of Women points that incidents of rape are probably much more than what the statistics reveal as more than 70 per cent of them go unreported.

Women’s rights activist Saswati Ghosh agrees that the accused are often acquitted owing to the lack of proper evidence. “Police investigations are not done properly. And there is often a terrible bias if the victim comes from a tribal or a backward class, or if she is poor. Very often, cases too are not filed on time, leading to the tampering of evidence,” says Ghosh.

To prove rape one has to take semen samples from the vagina of the victim within 48 hours of the incident and match it with that of the accused. Otherwise, the forensic report will be inconclusive,” says Calcutta-based gynaecologist Dr Mihir Nanda.

Thankfully, Shiney Ahuja’s maid approached the police station within hours of the alleged crime, which is why the actor could not very well deny the act of sex. But predictably, the defence counsel reached for the most commonly available defence employed in such cases. It argued that the girl had consented to sex and hence rape had not been committed.

The key problem is that medical evidence cannot conclusively prove whether sex was consensual or not. “Injury marks in private parts can be best proved if the raped woman happens to be a virgin but not if she is habituated to intercourse,” says Dr Nanda.

Another common ploy used to avoid conviction in rape cases is to attack the character of the victim and conclude that the act was a result of promiscuity rather than rape. Alok Kumar Mitra, senior lawyer, Calcutta High Court, mentions the notorious Mathura case. “In 1979, the Supreme Court acquitted two policemen who allegedly raped a 16-year-old tribal girl named Mathura inside a police station on grounds that the victim was habituated to sexual intercourse and was of dubious moral standards.”

Mitra points out that even as late as May 2009, in the Rajoo versus State of Madhya Pradesh case, the apex court acquitted all 13 men accused of raping a tribal girl on the ground that the victim was habituated to intercourse and that the injury marks on her were inconclusive.

Activists find this utterly outrageous. “Are we saying that a woman who is a prostitute cannot be forced to have sex? Isn’t her rape a rape,” asks Ghosh.

Of course, the many loopholes notwithstanding, there have been some heartening examples of late where the courts have convicted those accused of rape. In January this year, the Chandigarh Sessions Court handed out a sentence of life imprisonment to all five men accused of raping a 20-year-old German tourist. In yet another sensational case, in June 2008 the Supreme Court awarded life imprisonment to those accused in the Bijal Joshi rape case. The case had taken the country by storm in 2004 when the 24-year-old victim committed suicide after she was gang raped by her boyfriend Sajal Jain and his friends.

Victims may, in fact, look forward to greater relief from the rape laws. Once the Code of Criminal Procedure (Amendment) Bill, 2008, comes into effect, rape trials will have to be completed within a period of two months. The bill also includes clauses such as the hearing of rape cases by woman judges and questioning victims in the presence of their parents or social workers.

But more needs to be done, say activists and lawyers. Most feel that Section 155(4) of the Indian Evidence Act, which allows the victim to be questioned about her sexual history, needs to be scrapped as the defence often uses it to humiliate the victim in the courtroom.

“Trials of rape victims should be conducted through video conferencing so that she does not need to come to the court. Moreover, the defence counsel should submit a questionnaire to the judge so that he cannot ask humiliating questions. The judge will decide what questions ought to be put to the victim,” adds Tapoti Bhowmick, coordinator, Sanlaap, a Calcutta-based NGO that deals with women’s issues.

Others point out that lower court judges often insist on the evidence of physical resistance or injury marks as proof that a woman was raped. As lawyer Parthasarathi Sen explains, “A woman’s evidence without corroboration is not considered sufficient although the apex court allows it. Lower courts should convict the accused even if such simplistic corroborative evidence is not found.”

The Shiney Ahuja case may grind on for a while. But ultimately, justice will only be done if the law is made to take its course not just in high profile rape cases but in those countless others that one never even gets to hear about.

Additional reporting by V. Kumara Swamy