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)
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.
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.
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.
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.