September 18, 2021

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The legal conundrum of making laws against false rape charges in India

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This article is written by Armaan Rizvi.

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It is no secret that India is an unsafe country for women. Violence against women is steadily increasing each year and intimate and domestic rape between partners has especially spiked due to the COVID-19 Lockdown measures imposed on the population. Many rape cases have been in the spotlight recently, such as that of the Hathras Gang-Rape and Murder Case which have led to many people bringing up the issue of the prevalence of False Rape Charges.

There’s a saying that rape “is an accusation easily to be made and hard to be proved, and even harder to be defended by the party accused, tho never so innocent.” It is true, a simple rape allegation can be disastrous for the accused, ostracizing them socially and in many cases, ruining their business life and source of revenue. Rape is a serious allegation and it takes a lot of courage for many rape victims to speak up. Many victims do not do so out of fear of being unable to prove their case and labelled as attention-seeking false accusers.

While the judicial system bears the burden of being just and efficient enough in their decisions as to promote victims to speak up, it also bears the burden of thoroughly investigating an accusation before coming to a verdict. Research has found that approximately 90% rape cases are filed against acquaintances of the victim and about 40% of rape charges are actually consensual sex criminalized by the family of the alleged victim

In many cases of extra-marital affairs, rape charges are levied on lovers having consensual intercourse with the married woman just to protect their marriage. And in the marriages that cannot be sustained due to serious disputes, many rape cases are filed simply as a tool or malicious extortion or vengeance against the separated partner. 

In another such investigation in 2014, as per a report submitted by the Delhi Commission for women 53% of reported rapes in 2012-13 were found to be false6. However, this report considered the cases that were dropped before going to trial as false and failed to differentiate between the cases dropped due to coercion and cases where it was clear that women were lying

Other sources estimate the real rate of false cases to be about 9-10% (2875 out of 28469 cases registered in 2018) and consider the above given figures to be heavily inflated.

While such false cases form only a part of the cases reported and a minute fraction of the total number of cases; reported and unreported each year, it is still a matter of concern that a misuse of the law and legal systems led to the defamation and, in some cases, even incarceration of almost 3000 men in a single year (and that’s a lower estimate).

In a society such as ours, charges as serious as rape cause the accused being treated as guilty before their trial even ends, and in many cases, they carry this burden forward in their life even if they are proved innocent in the form a mental health issues and a background record of being charged for a heinous crime. There are growing concerns over some women who abuse the law and the legal systems, which are set up for protection of women, for nefarious purposes. The lack of such a legal system which can protect the innocent from false charges has led to the formation of movements such as #HimToo8 and has drawn the recognition of various High and Supreme Court Judges and the National Human Rights Commission (NHRC) and prompted them to offer legal suggestions to lawmakers to tackle the issue.

Research shows that only about 1% of the total number of rape and sexual assault cases in the country are reported and a vast majority go unreported due to women being afraid of intimidation, harassment or ostracism if they do decide to register a case. This shockingly low number shows how unsafe women already feel in even approaching the law to register true cases so creation of laws threatening to punish women who cannot prove their case will simply monger even more fear and apprehension within women who are legitimate victims and wish to report a crime against them. Thus, in a country which is unsafe for women due to the prevalence of crimes against them, the creation of a law responsible for fining or jailing false accusers will make it unsafe for truthful victims to even report such crimes.

But since a law against falsifying rape or sexual assault is not possible, there are effectively no legal deterrents for the few cases which involve malicious and spurious allegations. Even though the accused in such cases can press charges for libel or slander in falsified cases, they can pursue no criminal charges against the alleged victim. In the case of their own ongoing criminal trails, they are refrained from even pressing civil claims. Both the civil claims of libel and slander involve harmful, false statements that cause damage someone’s reputation, but libel requires that the statement be in writing or somehow “published.” With slander, all that is required is that the defamatory statement be spoken to a third party (someone other than you).

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However, the most that the prosecution can be entitled to is compensation for things like embarrassment, mental anguish, loss of revenue and ability to earn work and reputation in case they do win a civil case related to libel and/or slander. A correct monetary compensation for the degradation of intangible things such as relationships and the social reputation through false allegations is impossible to calculate and are, more often than not, judicially unjust verdicts. Therefore, while a criminal law against false accusers will be disastrous for truthful victims, the current legal options for the innocent who are accused of rape are injudicious.

A study, commissioned by the NHRC and conducted by the Centre for Women’s Development Studies during the previous year, states, “While revealing the identity of victims of sexual crimes is a punishable offence, the same principle does not hold in the case of alleged or actual offenders, whose names and personal details can be freely circulated. A time has come, when there is a need for safeguards to protect the accused from ‘false claims’”.

Yet again, there is opposition from the other side. Lawyer and Women’s Rights activist Vrinda Grover said, “If the argument is that disclosure of the name of an accused impacts his reputation, then that would be relevant for accused of all crimes, including, for example, acts of terrorism. There is no rationale to create an exception for this purpose. By raising the age of statutory rape to 18 years, the State has enabled the criminalisation of consensual sexual relationships between adolescents and allowed parental and societal control over the lives of young people. It is these cases that provide fodder for the “false cases” narrative. There is compelling evidence available for the state to amend the law and revert the age of statutory rape to 16 years.” 

The current judicial system is inefficient in preventing false rape charges and in protecting the accused from being wrongfully imprisoned and/or defamed. However, taking strong legal measures and criminalizing the act of pressing wrongful rape charges would be even more injudicious. This problem forms the basis of the judicial conundrum of making laws against False Rape Charges in India.

However, a possible solution will not come through undertaking radical measures but through careful consideration of different opinions and ideas regarding the issue. Such a solution can be found in the NRDC’s suggestion regarding anonymizing the identities of alleged rapists until proven guilty to protect the social identity of those wrongfully accused. Another solution can be found in Mrs. Grover’s beliefs that repealing the law increasing the age of consent for women will lead to a reduction of the criminalization of consensual sex by the girl’s family and thereby cut down large numbers of false rape accusations. But the best possible solution would be to incorporate the ideas from both, the NRDC’s suggestion and its criticism by Grover, to not only reduce the number false rape charges, but also spare innocent men from bearing the sentence as criminals.


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