UNDERSTANDING THE USE OF RAPE AS AN INSTRUMENT OF VIOLENCE DURING ETHNIC CONFLICTS

This article is written by Jasmine Sethi & Shaiesta Dabla of 2^nd Year of Dr. B.R. Ambedkar National Law University.

ABSTRACT

Rape is one of the social evils of the present society, it is an hinderance to the creation of a crime free state. Rape and other forms of sexual assault are not only a crime against a particular woman but instead they are a crime against the entire humanity, as being against the “basic” human rights of all individuals. Rape laws have been enacted and implemented in all countries; In India ‘rape laws’ began with the enactment of the Indian Penal Code 1860. Since its enactment, there have been many amendments made to the rape laws. With the pronouncement of various judgements and their later recognition as Precedents, the ‘consent’ part in the rape has become clear with the passage of time. However, despite the enactment of stringent laws defining imprisonments for rape which may extend upto life, there has been no sharp difference in the rape rates in the country.

 In this research paper, we have broadly discussed a peculiar feature of rape, it’s use as an instrument, weapon during ethnic conflicts, wars etc. With a great emphasis on the instances from the time of partition , then during the Gujarat Riots of 2002 and the most recent being the massive violence against women in the 2023 Manipur ethnic conflict between the two tribes : Kukis and Meities , there have been innumerous incidences where people of one community have targeted the people of other community especially the women by means of infliction of force to degrade their pride , unity and resilience and as a means to exert power , control and to instill fear within the community . In all of these instances women have been particularly targeted with brutality as a measure of revenge against the other as violating the bodies of women is seen as a soft target for winning the war by those involved in their gang rape and sexual assault. There is an urgent need for the government’s intervention into the Manipur ethnic conflict matter, which can be done by way of a proper investigation into nearly 600 FIR’s that were filed for incidences of sexual assault, abuse, rape against the women.

This article goes onto the highlight the callousness of the state in preventing such heinous crimes and suggest measures and reforms that must be brought in the Indian laws to control such crimes against humanity.

ABOUT RAPE:

Rape is a deeply distressing and pervasive issue that continues to inflict physical and emotional wounds on individuals and societies worldwide. This article aims to shed light on the concept of rape, its various forms, the traumatic aftermath for survivors, and the legal framework surrounding this heinous crime.

It is a sexual assault characterized by non-consensual sexual activity involving one or more individuals. At its core, rape is an egregious violation of personal boundaries, trust, and autonomy. The cornerstone of defining rape is the absence of consent — a freely given, informed, and enthusiastic agreement to engage in sexual activity. Without consent, any sexual act becomes an assault and a grave violation of human dignity.

Rape manifests itself in various forms, often extending beyond the stereotypical image of physical force. Some common forms include:

1.         Forced Penetration: This involves non-consensual penetration of the victim’s body, typically through genitalia, fingers, or objects.

2.         Drug-Facilitated Rape: Perpetrators may use drugs or alcohol to incapacitate victims, rendering them unable to resist or provide informed consent.

3.         Marital Rape: Contrary to outdated beliefs, rape can occur within a marriage or intimate relationship. Even within such contexts, consent is indispensable.

4.         Statutory Rape: Engaging in sexual activity with an individual below the age of consent is considered rape, regardless of their willingness or understanding.

5.         Gang Rape: When multiple individuals participate in a sexual assault, it escalates the trauma for survivors.

Let us now understand the Indian Law on Rape.

WHAT DOES INDIAN LAW SAYS ABOUT RAPE?

In India, the legal framework surrounding rape is governed by the Indian Penal Code (IPC) and subsequent amendments.

Section 375 of the Indian Penal Code defines rape.

Section 375. Rape- A man is said to commit “rape” if he –

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates ant part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman and makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

Under the circumstances falling under any of the following seven descriptions: –

1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under eighteen years of age.
7. When she is unable to communicate consent.

Explanations

1. For the purposes of this section, “vagina” shall also include labia majora.
2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;
   *Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.*

Exceptions:

1. A medical procedure or intervention shall not constitute rape.
2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.[i][1]

Consent lies at the heart of rape laws. Consent, as recognized by Indian law, is a crucial aspect of determining whether an act constitutes rape or not. The Indian legal system recognizes that sexual activity should be consensual and voluntary. It must be given voluntarily and with full understanding of the consequences.

According to Section 375, a person’s consent must be unequivocal and given without fear, force, fraud, or any form of manipulation. Consent cannot be assumed, and it must be obtained for each specific sexual act. [2]

Additionally, the law acknowledges that consent cannot be given if the person is incapable of understanding the nature of the act or is unable to communicate their consent. The concept of “affirmative consent” places the responsibility on the accused to ensure that the other party is actively and enthusiastically participating in the sexual activity.[3]

The age of consent in India is 18 years. This means that any sexual activity with an individual below this age, even if they provide consent, is considered a criminal offense.[4]

The law aims to protect minors from sexual exploitation and abuse, recognizing their vulnerability and the power dynamics that may be at play.

Section 376 of the IPC outlines the punishment for rape.

376. Punishment for rape-(1) whoever, except in the cases provided for by sub-section (2) , commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(3) whoever-

  (a) being a police officer commits rape –

    (i) within the limits of the police station to which he is appointed; or

    (ii) in the premises of any station house whether or not situated in the     police station to which he is appointed; or

     (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

  (b) being a public servant, takes advantages of his official position and commits rape on in a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

  (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s rape on any inmate of such jail, remand home, place or institution; or

  (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

  (e) commits rape on a woman knowing her to be pregnant; or

  (f) commits rape on a woman when she is under twelve years of age; or

  (g) commits gang rape

shall be punished with rigorous imprisonment foe a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

*Provided that the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years. * [5]

The severity of the punishment depends on various factors, such as the age of the victim, the relationship between the accused and the victim, and the use of force or violence. The penalties range from rigorous imprisonment for a term not less than seven years to life imprisonment, and in extreme cases, even the death penalty. Amendments have been made to ensure stricter punishments for repeat offenders and cases involving minors.

Deficiencies in Indian Rape Laws

A contentious issue in Indian rape laws is the exemption of marital rape from the definition of rape. Marital rape refers to non-consensual sexual acts within a marriage. India is one of the few countries where marital rape is not explicitly criminalized. Critics argue that this exemption perpetuates gender inequality and undermines the dignity and autonomy of married individuals. Activists and legal experts continue to advocate for its criminalization, highlighting the need to protect all individuals from sexual abuse, regardless of their marital status.

Indian rape laws have evolved over time to address the complexities of sexual offenses. The emphasis on consent and the recognition of diverse forms of sexual assault reflect a growing awareness of the need to protect individuals from all forms of sexual violence. While the legal framework has made strides in addressing these issues, there remain areas of improvement, such as recognizing marital rape as a criminal offense. It is essential for society, lawmakers, and legal professionals to work collaboratively to ensure that the legal system provides justice and protection for all victims of rape.

Rape in the United Nations Context

The United Nations defines rape as any non-consensual act of sexual penetration, including vaginal, anal, or oral penetration, committed against an individual without their consent. This definition underscores the importance of consent, echoing the principles laid out in various international human rights instruments. [6]

Rape is a grave violation of human rights, recognized as such by the United Nations (UN) within the context of international law. In the UN framework, rape is considered both a war crime and a crime against humanity when committed in armed conflicts or as part of a widespread or systematic attack on civilian populations. The UN has taken significant steps to address and combat this heinous crime.

Within the context of armed conflicts, rape constitutes a war crime under the Geneva Conventions and their Additional Protocols. The Rome Statute of the International Criminal Court (ICC) explicitly categorizes rape as a war crime, thereby allowing for the prosecution of individuals responsible for such acts. These legal frameworks emphasize the need to hold perpetrators accountable for sexual violence committed during times of conflict.[7]

The UN recognizes rape as a crime against humanity when it is committed as part of a widespread or systematic attack on civilian populations during armed conflicts or other situations of a similar nature. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have prosecuted individuals for crimes of sexual violence as part of their efforts to combat impunity for such acts.

The UN has made substantial efforts to prevent and respond to rape globally. This includes initiatives to strengthen national legal frameworks, support survivors, and hold perpetrators accountable. UN Women, the UN entity for gender equality and women’s empowerment, plays a pivotal role in advocating for the rights of survivors and supporting programs that aim to prevent and respond to sexual violence.

Rape is unequivocally condemned within the United Nations context as a severe violation of human rights. It is addressed as a war crime and a crime against humanity when committed during armed conflicts. The UN actively works to prevent and respond to rape, advocating for justice for survivors and accountability for perpetrators.

RAPE AS AN INSTRUMENT OF VIOLENCE, REVENGE DURING WAR

The rape of women during war time or in war like situations like during ethnic conflicts is not a new incident to be heard of. It is symbolic of anger, agitation, dominance and patriarchy. The world has previously seen many such incidents, for example during the first world war, when there were clashes between the allied and axis powers, both committed rapes as a means of terrorizing the enemy civilian populations and as a way to demoralize the enemy’s troops. It is often considered as a disheartening but a true fact that such gruesome incidents especially rape against women are an unfortunate but an inevitable accompaniment of war. Several cases of rape were documented in the second half of the 20^th century when many South Asian countries were leading civil and ethnic wars, with the aim of forming nation states. [8]

As aforementioned, in the grim landscape of ethnic conflicts, rape is often used as a brutal instrument of violence, causing profound physical, psychological, and societal devastation. Moreover, rape is strategically wielded as a tool to achieve objectives within the context of ethnic conflicts in the major following ways:

1. Psychological Terror: Rape is employed to instill fear and helplessness within targeted communities. The trauma inflicted upon victims is not confined to physical suffering; it extends to psychological scars that can haunt individuals and entire societies for generations. By making women the victims, perpetrators aim to undermine the very essence of a community’s resilience and identity.

2. Weaponizing Shame: Rape is a means of imposing shame on individuals and their communities. In patriarchal societies, the shame associated with sexual assault can lead to isolation and social ostracization. This shame can also be extended to the broader community, as victims are seen as symbols of degradation.

3. Ethnic Cleansing and Demographic Shifts: Rape can serve as a method of ethnic cleansing, with the intent of driving a particular group from an area. By impregnating women from the targeted group, perpetrators seek to alter the demographic balance, making it harder for the community to reclaim its roots. This tactic contributes to the displacement and dispossession of entire populations.

4. Destabilizing Social Fabric: Communities affected by ethnic conflicts often have intricate social structures that perpetrators aim to destabilize. Rape fractures these structures, causing distrust and suspicion among individuals. By destroying social bonds, perpetrators further exacerbate divisions and hinder prospects for reconciliation.

 5. Barriers to Justice: In the chaos of conflict, the pursuit of justice becomes even more challenging. Rape survivors often face numerous obstacles, including stigma, fear of reprisal, and lack of access to legal mechanisms. The perpetrators, shielded by the chaos, often evade accountability, perpetuating cycles of violence and impunity.

DISCUSSING INDIA’S INSTANCES

India’s history has seen numerous instances of ethnic conflicts between religious communities. In the spur of this ethnic conflict, though the issue of conflict because of both sides’ respective demand for more representation to their interests or for acquiring hold over a territory or government. But what is horrific in these incidents of violence is the tragic death of many innocent citizens and humanity degrades onto a level more when there come up instances of rape, gang rape, assault with children, elderly people etc. There is a very pessimist, yet very unique feature of such conflicts, that they often involve resorting to targeting the weaker sections of society like the women, children and younger children to disintegrate the other group’s unity and eventually force them to withdraw their demands. This is a very apt example which shows how rape is used as an instrument of violence during ethnic conflicts. India has from time to time witnessed this situation.

In this article, we shall be discussing two such instances.

1. The first happened during the partition of India and Pakistan in 1947

             And

1. The second revolves around the infamous rape case of Bilkis Bano, which happened during the 2002 Godhra riots.

SCENARIO OF 1947: A DREADLY PARTITION BETWEEN TWO NEIGHBOURS

The britisher’s Mountbatten Plan not only bought with itself the partition of what was earlier collectively known as Hindustan into two separate countries, India and Pakistan, but instead also bought with it one of the dreadful migration of people across border. There were atrocities all around in Punjab, Bengal and involved venal criminality on all parties involved including Hindus, Muslims and Sikhs. There were forced conversions on both sides of border, women were forced to convert and were married off on either side.

Women of all ages, ethnic groups and social classes were victimized, tortured and raped — some even were stripped naked and paraded down streets to intensify their trauma and humiliation. In many cases, rape victims married their rapists, converted into their religion and never saw their natal families ever again[9]

Shockingly in many cases to protect the family honour , daughters were forcefully killed or asked to commit suicide as a result of fear of being raped or converted to other religion . Stories (some unconfirmed, others proven) abound of husbands, brothers, nephews and sons killing their female relatives to spare them the shame of rape and forced conversion. But some women voluntarily killed themselves (as well as their female children in some cases), often by self-immolation or by throwing themselves into wells. Even women who survived these atrocities could not live with their dark realities and committed suicide. [10]As many local newspapers of that time reported , many women had their breasts chopped off, others suffered the abuse and torture of their genitals — in most cases leading to death. As per current sources provided by the  Indian government now estimates that 83,000 women and girls were abducted and raped during Partition, but other believed this estimate is far too conservative.  The trauma of this violence has impacted at least three generations since 1947, as some survivors are now elderly women and only beginning to reflect on the brutality they endured. [11]

BILKIS BANO RAPE CASE

Among the most tragic cases involving the use of rape as a tool of violence during communal riots is the infamous case of Bilkis Bano, a Muslim woman who was brutally assaulted and raped during the Hindu-Muslims riots of 2002 in Gujarat. This case is considered as a significant milestone in the legal history of India which depicts the courageous act of a women who stood to thrive for justice even years after the brutality she suffered during the ethnic violence. She, along with her family, bore witness to a horrific incident that included the gang-rape of herself and the brutal murder of her family members, including her young daughter. The perpetrators of this heinous crime were part of a mob during the communal violence that rocked Gujarat.

This case brings in front of us the following key issues:

Firstly, it shows the true picture of a society where rape is used as a weapon to intimidate, humiliate and subjugate the particularly weaker communities.

Secondly, it highlights the issue of communal violence, a common sight in a diverse country like India, where people from one religious community attack people of other religious community. [12]

It is a representation of the callousness of the state machinery and the involved governmental authorities depicted by the fact that evidence was tampered, Bilkis and her husband were got life threats. Out of 14 members of her family who were killed, 6 of the bodies went missing and the remaining 8 bodies were found to have no skull when the CBI unearthed the bodies for investigations. It was done to prevent the identification of the bodies and thereby protect the criminals as claimed by CBI later when the case was handed over to them. Hence this exposes the systemic failures in addressing rape during communal violence. Initially, local authorities showed negligence and apathy.

The inefficiency of the police led to delay of several years for the accused to be convicted for such a heinous act.

It highlights the grave issue of human rights violation in the country in the form of violence and discrimination faced by minority communities and crime against women. In addition to this it also highlights the need for institutional reforms and accountability mechanisms to ensure survivors’ rights are protected.

After the case was transferred to Maharashtra by the Supreme Court, justice was finally served in 2008 when the trial court convicted the perpetrators for their involvement in the rape and murder and also convicted police officers and doctors for tampering with evidence and covering up the crime.

In 2017, the High Court upheld the conviction and sentence awarded by the trial court, this marks a significant development in India’s criminal justice system as it depicts that despite the influence of powerful parties in the case, justice was delivered to the victim. Aftermath to this, the SC in its judgement has held that Bilkis was subjected to “unimaginable trauma”.

In essence, the Bilkis Bano case serves as a powerful illustration of the horrors of rape during communal violence and the formidable struggle for justice. It emphasizes the critical importance of addressing sexual violence as a deliberate tactic of conflict and the necessity of protecting survivors’ rights while holding perpetrators accountable. Bilkis Bano’s story stands as a testament to the resilience of survivors and a call for comprehensive legal and institutional reforms to combat rape as a tool of violence in such harrowing contexts.

However, in 2022 the Union Home Ministry faced severe backlash from civil society organization, human rights association and wome

n rights organization on the decision of the government relating to the early release of the 11 convicts on account of “good behavior”.

MANIPUR’S BURNING ISSUE

A CLOSER LOOK UPON THE SITUATION IN MANIPUR:

What began as a small ethnic conflict between the 2 famous tribes, Kukis and Meithis, residing in the heart of north eastern India i.e., Manipur, is now an issue of national as well as international importance. Social media especially in the past one two months has been flooded with scary scenes of violence and conflicts in Manipur, and the temperatures were raised when the sentiments of revenge heightened between the two tribes so much that two women were paraded naked by dozens of men in violence hit Manipur. Terrific! a clear case of crime against humanity, but this is not the only such case of rape being used as an instrument of violence and especially revenge in this ethnic conflict. As per records, there are as many as 600 cases of violence reported with the Manipur police since May 2023, out of which more than half are related to rape and violence against women. The fact of much disappointment is that police has turned a blind eye to all these cases, with people left hopeless and in despair. Moreover, strangely these incidents of what all is happening in Manipur is being showcased to the entire nation through social media posts, that too after such a long period amounting to 2 months, the question that arises in nearly everyone’s mind is that, what the government and especially the police be doing since then?

UNDERSTANDING THE ETHNIC CONFLICT

The Manipur population is broadly classified into two major tribes, the Meitei tribes, concentrated in the Imphal region constitute nearly 53% of the population. The hill regions on the other hand are constituted by the Naga, Kuki tribes amounting to 40% of the total population of Manipur. The Manipur HC on 20^th April 2023, suggested the Manipur state govt to consider Meitei community as Scheduled Tribes (ST). The Meitei community demanded reservation as means to save their culture, against the illegal, encroachment of their lands by the hundreds of illegal immigrants who enter India on a daily basis from neighboring countries of Bangladesh and Myanmar. They fear that as a result of this increased illegal immigration into Manipur, the today existing 53% Meitei population will decrease and become a minority in their own state. They think getting this benefit of reservation will solve most of their problems. This sparked conflicts between the two ethnic groups.  As a result of the increased violence between the groups, which included setting on fire a gym wherein the CM of Manipur, N Biren Singh came to inaugurate it, section 144 was imposed as result to curb people’s activities and curfew was imposed in as many as 8 districts. Later on, 3^rd May a march was organized by The All-Tribal Students Union of Manipur, and joined by as many as 60,000 people. However, this too could not calm down the burning dispute but instead aggravated the matter and spread the violence.

And recently, most horrific of them was a video surfacing online which showed that two women were paraded naked by dozens of men in violence hit Manipur. However, rape occurring during times of conflict is not a thing which is new means of showing hatred towards the other community, it has been being used as a weapon of instrument of violence, let us now understand how.

Ever since violence has begun in the north eastern gem of India, Manipur, there have been a drastic increase in instances of brutal crimes against women. The social media especially is flooded with horrific incidents involving rape, assault and murder eventually creating an atmosphere of fear, dampening the dignity and freedom of women and has begun to question the very existence of the basic fundamental rights of women. Apart from violating the basic human rights they pose a severe challenge to the progression of society as a whole. It is no doubt that the very deep rooted social patriarchal norms and intentional targeting of women all of which have to normalization of violence as an instrument to exercise control and dominance over women’s freedom and eventually deprive them of basic rights and equal opportunity.

CONCLUSION

The use of rape as an instrument of violence during ethnic conflicts is a harrowing reality that demands global attention. It is an affront to human dignity and an assault on the fabric of societies. Efforts must be directed not only towards preventing and addressing sexual violence but also towards creating conditions that enable healing, justice, and sustainable peace for communities torn apart by ethnic conflicts. Recognizing and countering the use of rape as a weapon is an essential step towards building a more just and equitable world. Bilkis Bano’s ordeal illustrates how sexual violence can be a potent tool for asserting dominance and spreading fear among vulnerable populations. This verdict, while a step toward justice, also underscored the need for swift and comprehensive legal proceedings in cases of sexual violence during conflicts. There is an urgent need of an unbiased investigation into the situation in Manipur. Last but not the least there is a greater need for the state to prevent the misuse of rape to exaggerate violence during tough situations like those of wars.  

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[1] Section 375, Indian Penal Code 1860

[2] Section 375, Indian Penal Code 1860 – Ratanlal and Dhirajlal: The Indian Penal Code

[3] https://www.jurist.org/commentary/2022/06/avanti-deshpande-affirmative-consent-india/

[4] https://wisevoter.com/country-rankings/age-of-consent-by-country

[5] Section 376, Indian Penal Code 1860

[6]https://www.bing.com/search?q=un+definition+of+rape&cvid=854343ba48694939ba4153046ee03f3d&aqs=edge..69i57j69i64j0l7.5170j0j4&FORM=ANAB01&PC=U531

[7] https://www.ohchr.org/en/instruments-mechanisms/instruments/rome-statute-international-criminal-court

[8] Rape in South Asia: Sub chapter, The South Asian Journal on Human Rlights

[9] https://www.academia.edu/43080180/Partition_of_India_Through_Gendered_Perspectives

[10] https://www.ibtimes.com/partition-india-pakistan-rape-women-epic-historic-scale-1387601

[11] https://www.lawcafeindia.com/bilkis-bano-case-summary

[12] https://www.ibtimes.com/partition-india-pakistan-rape-women-epic-historic-scale-1387601

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