Hindi Film 101 on Rape and Laws/News Round-Up Part 1: Court Cases! Rape and Fraud, and Blackbucks

So many news stories today! I’m gonna start with the two big think-y ones, the ones with massive legal implications, a rape case of a minor actor/band member (trust me, you haven’t heard of him and will have no emotional response because of fandom), and the same old Blackbuck case. And after I get this long deep boring post out of the way, I will move on to Imraan Khan getting divorced and fun stuff like that.

Rape According to the Bombay Police

The basic story here is very simple. Karan Oberoi, a failed actor turned band member, was accused of rape by a woman he had been seeing. As proof of his innocence, he offered up text messages and so on to show they were involved in a consensual sexual relationship. As proof of rape (beyond her word), she attempted to prove that he had made promises to her that were not carried out. (story here)

Image result for karan oberoi
Do you have any emotional reaction to this face? I don’t. I have never heard of Karan Oberoi before, I have no dog in this fight. So a great case to use as an example!

There’s a bigger issue here which goes back to the confusing nature of the Indian consent laws, and specifically how they are interpreted by the Bombay police force. Like everywhere, the police have some leeway in what they choose to enforce and not enforce. And the culture of the Bombay police department is such that they tend to spend a lot of time prosecuting “rape by fraud” cases. It’s not technically a specific law, but it is a way of interpreting the laws that exist which, for whatever reason, is something that the Bombay police might encourage you to do if you walk in and want to file a complaint. File the same complaint in Delhi or Kochi or Goa, and it could turn into something different, like simple fraud. Or “sorry, your boyfriend’s a jerk but didn’t do anything illegal”.

Let me back up and explain the actual laws. In October of 2017, the Indian Supreme Court clarified its position that sex with a woman under the age of 18, regardless of consent, would be considered rape.  Unless the woman was married, in which case nothing is rape. This is a slight improvement on its position from 2013 that sex with a woman under the age of 18 was rape, unless she was married, and the legal marriage age being 15, that meant that any girl between the ages of 15 and 18 could not legally consent to sex, but could be married in which case her consent was immaterial.  Now, a married woman’s consent is still immaterial, but at least the legal age of marriage and the legal age of unmarried consent are the same.

On the other hand, the Indian rape laws also allow for a loose interpretation of consent.  Which has been interpreted to mean that if false promises were made, for instance of marriage or jobs or other circumstances, then the woman did not provide informed consent and therefore the sexual relationship becomes retroactively non-consensual. This is related to the “marriage-means-consent” legal status. If the marriage is false, therefore the consent is false as well. Even if consensual sex without marriage is itself not illegal.

The whole confusing legal situation was I think intended to address the issue that if a woman did not consent to the marriage, it was not legal. Meaning a forced marriage followed by a rape is still rape. A Koyla situation. But instead it is used more for misunderstandings between couples where the sex was consensual even if the rest of it was a lie. A Rehna Hai Tere Dil Main situation.

But how does this work in practice? There is a fascinating article you should all read about a woman who accidentally filed a rape report (story here). She had been tricked into a relationship with a married man and, when finding out the truth, had gone to the police in a fury. Where she had been confused and convinced into signing an accusation of rape and “unnatural” sex without fully understanding what she was signing. A few weeks later she, and the accused, had come together to the police requesting a reform in police processes.  She was still angry with the accused, but also clear that what had happened was not rape and he did not deserve such severe punishment. It was the police who told her how to frame the complaint and declared it “rape by fraud”, instead of telling her that legally there was nothing she could do about a boyfriend who lied about his marital status.

With the odd loopholes and gaps in the sexual consent laws, and the way they are rapidly changing, we are in a situation where there can be an honest defense of “I didn’t know I was doing something wrong”. Or, “It wasn’t wrong when I did it”. As recently as a generation ago, many things which today would be considered legally rape were openly practiced by the most famous and popular people in India.  In 1973 Dimple Kapadia, recently launched in the very popular teenage love story Bobby, married the biggest male star in India at the time, Rajesh Khanna. Their photos were spread through all the papers, all of India was in love with their love story.  Dimple was 15 at the time, and Rajesh was 30. Dimple gave birth to her first daughter before she was 17. Today, with the current laws, their marriage is illegal and their daughter is the product of rape (because their marriage is illegal). Before the reforms of last fall, their marriage would have been legal and therefore their daughter would not be a product of rape. Unless she happened to be conceived before the wedding ceremony, because it was rape if it happened 30 seconds before the ceremony, and legal 30 seconds after.

Image result for dimple kapadia rajesh khanna
Back then, Fairy Tale! Today, Rape.

And then we have the “rape by fraud” cases. In terms of basic human empathy, I expect someone to know that rape is wrong and know when they are performing rape. It’s not about laws, it is about the distress of the person in front of you. But if you flirt with a woman, lie to her that you are a big deal producer and can get her a job, or that you will leave your wife and marry her, and she flirts back and kisses you and enjoys having sex with you, would that trigger a basic human awareness that you are raping someone? If you are unaware of the extremely confusing specifics of how the consent laws are interpreted, or even unaware you are lying (for instance, in that moment you truly plan to divorce your wife, or you think you have the funds lined up to produce a movie), then you would have no idea you are doing something that legally could be called “Rape”.

The other issue with these cases, is that the focus on proving “fraud” dilutes the value of the woman’s own word. You can absolutely be in a relationship with someone and be raped her. But rather than making the case about that, there is an attempt to focus on proving that he lied to her. Her word, and her consent in the moment, have no weight legally.

And when the police force “rape” onto cases where it doesn’t belong, of course they also weaken the weight of the actual crime of rape. I believe a woman knows when she is raped, it’s not something you need a police officer to tell you. But that is what is happening in these cases. A woman like, for instance, Zeenat Aman comes to a police station to file a case against her business partner and boyfriend for fraud in their joint real estate holdings. And the police encourage her to change her complaint to add on “rape”, since he was ripping her off financially at the same time they were sleeping together. And now, in the minds of the public, we see “rape” on a complaint and think “oh, he must have lied to her while they were in a consensual sexual relationship”.

None of this is necessarily directly related to this particular case, I just find it interesting and important to think about, and now is as good a time as any to bring it up.

The Poaching Case That Has Lasted 20 Years

In Bombay, for whatever reason, the police and prosecutors tend to spend a lot of time on “rape by fraud”. In Rajasthan, they spend a lot of time on Black Buck poaching cases. I know why too, it’s because the Bishnoi community is a large voting block in Rajasthan and they revere the Blackbuck. And thus, twenty years of resources spent to prosecute 5 high profile members of the Bombay film industry. (story here)

I did a full rundown on the politics and history of this case the last time it came up, you can read that post here. The big thing you need to know is that, first, Black Bucks are not endangered. They were over-hunted for a while, but they are now a protected species because of religious feelings, not ecological concerns. An environmentalist might suggest common sense hunting laws to prevent over-hunting, not necessarily a ban. Because of the centuries long traditions around the hunting of Black Bucks, it is a regular tourist activity for guides to illegally take folks into the country on a shoot. It’s like the rape laws above, the things that were totally accepted socially and culturally just a little bit ago are now considered outlawed and horrible because the laws changed, while the circumstances on the ground are the same.

Image result for blackbuck hunting painting
Here’s a painting from the 1600s of people of the Bhil tribe hunting Blackbucks. Bhils, as ancient as the Bishnois, and also Hindus, have an ancient tradition of hunting the Blackbucks rather than protecting them.

When they were shooting Hum Saath Saath Hain in Rajasthan, Salman and Tabu and Sonali Bendre and Saif Ali Khan and Neelam went on a illegal hunting trip. The Bishnoi have stake outs along the roads to spot the illegal hunting jeeps and a witness saw and recognized the 5 of them. And then later found a dead Black Buck. Salman was witnessed holding a gun, which gives him greater legal culpability.

This is a very hard case to prove. It’s one witness recognizing people by sight and assuming they were hunting based on the circumstances. And even there, only the evidence of witnessing Salman holding a gun is enough to say they were hunting instead of just riding into a protected area.

And yet it has been prosecuted for 20 years. Other cases greater than poaching are left behind in favor of this “crime”. And other less famous criminals (for instance, the professional poachers or guides who are a far greater danger than one tourist) are left behind as well.

This post isn’t supposed to be a criticism of the Indian legal system. Rather, it is a criticism of ALL legal systems. You shouldn’t read a story about someone being prosecuted and leap to “they must be guilty!” You should always read carefully and consider the details of the circumstances of the crime, and the prosecution. Especially when it is a celebrity being prosecuted which brings with it the advantages/disadvantages of publicity for all concerned.

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8 thoughts on “Hindi Film 101 on Rape and Laws/News Round-Up Part 1: Court Cases! Rape and Fraud, and Blackbucks

  1. Just out of curiosity, have/ had you heard about the Yasin Bhatkal SRK connection? It came out a couple of days ago, and now it makes *so much sense* why the most famous man in the world was always getting detained at US airports.

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    • I think that was mentioned vaguely with the first time he was detained, something about a name confusion. Which is still stupid and shows the flaws in the whole “do not fly list” name system. The other thing which I heard vaguely mentioned in an article and had confirmed to me privately and personally by a local who would know, is that the groups that organize and host these tours and personal appearances and so on are SUPER mobbed up. The time I saw him in Chicago, the organizer had been shot at in a drive by in Bombay a couple days earlier. So in terms of Shahrukh being detained, sometimes it is also the people mentioned as “host” on his records.

      But mostly it’s just stupid. And I’m so glad he complains about it because if no one speaks up, nothing will change.

      On Fri, May 24, 2019 at 1:35 PM dontcallitbollywood wrote:

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  2. I just can’t with 30 y/o Rajesh marring 15 y/o girl.

    And thank you for this post, I’m thinking about those fraud rapes now, and the laws are really strange, but deep inside it’s not that stupid.

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    • Yeah, the Rajesh-Dimple marriage, even if legal, is one that I think there should have been an essential human reaction of horror at.

      Exactly, the rape laws make sense in that they are an attempt to correct a gap in the marriage laws, but the way they are applied is just not right.

      On Fri, May 24, 2019 at 2:28 PM dontcallitbollywood wrote:

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  3. Rape by fraud is actually much simpler than what this article conveys. If you commit a “fraud in fact” in order to conduct sexual conduct, you are assaulting, not seducing the other person. The condition that the victim does not know that you are doing so at the time does not change that the offender knew. And the offender’s actions are a crime no matter what the victim knew.

    Here’s a simple way to understand it. You must have the capacity and intent to carry out what commitments you make when you make them. You can change your mind, but if you did not have the capacity or intent to follow through, you lied. Doing so to engage in sex is sexual assault by fraud.

    Lies of fact such as your age, marital status, education, etc when told to induce sex, are sexual assault by fraud. Pretending you are someone you are not is sexual assault by fraud. Deceiving the victim about the nature of the act is sexual assault by fraud.

    You can learn a great deal more by watching this TEDx Talk http://bit.ly/2MvLpJp or getting “Your Consent – The Key to Conquering Sexual Assault” on Amazon.

    Liked by 1 person

  4. Just like Dimple Kapadia, Sanjay Kapoor married his wife maheep when she was only 15 I think. She was born in 1982 and they married in 1997. She gave birth in 1999 when she was 17. What’s also weird is that she is technically Sonam Kapoor’s aunt but but they are only 3 years apart

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    • Thank you! Very interesting. I suppose she could have been lying about her age a little bit for career reasons, but I can’t imagine she shaved off more than a couple years. So that’s still a 30 year old marrying a teenager.

      And in 1997 and 1999 it was all totally legal and more or less acceptable, but 14 years later it wasn’t. So strange how fast things change!

      Like

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