All Sex Is Mild Rape

Rape

Some people call rape even more heinous than murder. They opine rape is manifestation of political dominance of the stronger males over weaker females. They consider rape as nothing more than violence. As per the commonly accepted definition of rape, penetration of foreign substance into any of the orifices of the female body by the dominating male sans consent is rape. Consent could be expressed or implied.

So, the differentiator is consent. If the female denies her consent, it becomes rape, else it is sexual intercourse. I agree forced penetration sans consent is expression of violence, but I am not sure if the mere lack of consent makes it so violent that the sexual element ceases to exist altogether. It is probably the institutionalization of rape in India as a source of political domination of higher classes over weaker classes (including castes) that has made rape lose its sexual texture. In other words, rape has become a name synonymous with social oppression of weaker class through its even more vulnerable sub-class, i. e. women. However, what if a weak woman of a lower class grants consent in lieu light of financial or other favour. Or, in other words, she offers herself up for prostitution. Does it ceases to be rape then? Similarly, what if a young girl of a lower class gives consent to marriage with an old man from the higher class to avoid persecution. Does it ceases to be rape then? I will keep the answers in suspension for sometime and discuss rape from a completely different perspective, a purely sexual perspective.

Sexual intercourse is an unrestrained physical activity of fantastical possibilities. Most people don’t realize these possibilities. But those who do, also do realize that there just can’t be any sexual intercourse without at least some physical domination of one member by another. It could be either male or female. If the sexual intercourse is a group activity, then permutations and combinations can run havoc. It is just not possible to seek consent for all these fantastical possibilities. I know some legal systems give lots of emphasis to the woman’s consent, but such an emphasis only make things comical. Moreover, when sexual intercourse is a mutual action between partners I wonder how the consent of only one gender can be emphasised to create the offence of rape. The offence of rape should obviously be a gender neutral offence. And to what degree the consent of either gender has to be emphasised is a sociocultural, not a political, question. Thus the consent has nothing to do with political domination of one gender by another. I would rather categorize rape as mild rape and strong rape and make only the second category punishable, for as already stated there just can’t be any pleasurable sexual intercourse without at least some element of physical domination in it.

Now I think it’s time to answer the above questions. I say not only in India but the world over women have been subjected to institutionalized domination through marriage. In fact, the Old Hindu Marriage Law even recognized marriage through abduction. Thinkers have still called marriage institutionalized prostitution, but none has dared called it institutionalized rape. So, at least one question is answered, i. e. sexual intercourse in marriage under duress to avoid persecution is not rape. Marriage may be declared void later, but till the time it happens, consent is deemed operative. People want marital rape to be introduced as an offence, but frankly I don’t understand how it will work out when there is presumption of consent in marriage. If there is no presumption of consent, why marry at all? Well…this brings me to the the bigger question of validity of marriage per se, but I am not going on a tangent. It is safe to assume that, in majority of sociocultural systems, marriage does carry at least some presumption of consent. When and how that presumption stands rebutted is a matter of detail. At least in India, there is a very strong unrebuttable presumption of consent in marriage.

Coming to the second question. Prostitution in most cases is indeed akin to rape. Not leaving a person with any choice but to submit is nothing but rape. Yet, some countries/state recognize prostitution to the extent of allowing trafficking. India doesn’t allow immoral trafficking, but prostitution is not illegal in India. So, unless it becomes obvious that the female is prostituting herself under duress, the consent is presumed in prostitution as well. It is true that in most cases the client gets to know immediately that the girl sitting naked in front of him is an object of his oppression, but he still executes his lust in lieu light of the money he pays to her. Whether this can ever be treated a valid business transaction is a question that society needs to answer, which I am afraid the society has ignored forever. However, nudging the society to answer this question is beyond my self-assigned brief in this article. So, I accept the presumption with a heavy heart with a compensation that I have never knowingly entered into such a business transaction.

So, when neither marriage nor prostitution is institutionalized rape, how can political domination of weaker class by stronger class be institutionalized rape. Each case is a separate sexual act, and each forced sexual intercourse sans consent tantamount to rape. There is no scope to see anything further in it in terms of rape. If political domination of weaker class manifests itself in mass rape of females, it calls for a separate offence, which could indeed be a an offence more heinous than murder. But our legal system doesn’t recognize such an offense till now. What do we do about it — I will support anybody sitting on a hunger strike for it. Hang all rapists! Certainly not because then you never know when some Swati Maliwal or Farooq Abdullah (still assuming rape is a gender neutral offense) will sit on a hunger strike to demand death penalty for biting ears instead of kissing lips as agreed upon.

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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