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Gender & History ISSN 0953-5233 Elizabeth Kolsky, ‘“The Body Evidencing the Crime”: Rape on Trial in Colonial India, 1860–1947’ Gender & History, Vol.22 No.1 April 2010, pp. 109–130.

‘The Body Evidencing the Crime’: Rape on Trial in Colonial India, 1860–1947

Elizabeth Kolsky

Using gender as a category of historical analysis, feminist scholars have produced a rich literature on the sexual symbolics and carnal practices of modern European empires. 1 At a symbolic level, the penetration and conquest of faraway lands was charged with sexual significance and intrigue. The white male’s domination and possession of dark and fertile lands in Africa, Asia and the Americas offered, in Anne McClintock’s words, ‘a fantastic magic lantern of the mind onto which Europe projected its forbidden sexual desires and fears’. 2 The erotics of empire were not strictly imaginary. Just as the virgin territories of the world purportedly invited foreign ‘entry’, colonial encounters provided opportunities for various kinds of carnal pleasures and physical intimacies, some more consensual than others. 3 The politics of rape were also symbolically significant to the politics of empire. To the coloniser, as Jenny Sharpe argues, rape was an ‘allegory of empire’ that ex- pressed imperial fears and fantasies, particularly during moments of political crisis. 4 To the colonised, the language of rape could be deployed to describe and denounce the violent and voracious nature of imperial exploitation. Anti-colonial nationalist Jawaharlal Nehru, for example, condemned British rule in India as an act of sex- ual violence: ‘They seized her body and possessed her, but it was a possession of violence’. 5 This article is based on the rather obvious, though less explored, premise that rape in colonial India and the wider British empire never existed exclusively at the level of signs and symbols. 6 In 1860, the Indian Penal Code (IPC) established a uniform criminal law for all of India. Initially framed by Thomas Macaulay’s Indian Law Commission in 1837, the draft bill defined the crime of rape as sexual intercourse by a man with a woman against her will and without her consent, except in cases involving girls under nine years of age where consent was immaterial. 7 The crime of rape was punishable by a prison term of between two and fourteen years. This definition was based on the English law of rape where the age of consent was ten and the punishment was transportation for life. When the IPC was passed into law in 1860, the age of consent was raised to ten and the punishment was increased to either transportation for life or imprisonment for up to ten years. 8 Macaulay’s tenure in India coincided with the ‘Age of Reform’ (1828–56), a period when liberal colonial administrators sought to improve Indian society by eradicating

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‘ancient’ and ‘barbaric’ customs such as sati (widow immolation) and hook-swinging. 9 Liberal reformers viewed these practices as signs of cultural backwardness to be over- come by the colonial civilising mission. Indian women frequently found themselves at the centre of this reform agenda as white men sought to save brown women from brown men by criminalising crimes of culture that stood in the way of universal freedom and progress. 10 To the nineteenth-century Briton, sati symbolised Indian difference and infe- riority. The colonial system of exclusion and inequality was contingent upon such representations of difference. What made European rulers different from, and superior to, their native subjects changed across time and space. Yet ideas about the otherness of colonised people were consistently used by Europeans to justify colonial domination and to warrant systems of governance that were different from those implemented at home. Partha Chatterjee calls this peculiarly colonial form of modern power the ‘rule of colonial difference’. 11 This article uses colonial rape law to ask a series of questions about rape, difference and the administration of criminal justice in British India. How did the colonial criminal justice system deal with a culturally familiar, if not universal, form of violence against women? Did the rule of colonial difference also govern the colonial law of rape? What influence did British law and British jurists have on the Anglo-Indian statutory and case law? 12 How did ideas about Indian culture figure in the colonial criminal jurisprudence on rape and what impact did this have on women in colonial and postcolonial South Asia? These questions frame the structure of this article. I begin by examining the modern English law of rape. This section allows us to begin to think about what, if anything, changed when the English law of rape made the passage to India. In the second section, I explore the development of Indian medical jurisprudence and medico-legal writing on rape in colonial India. In late nineteenth-century England, the application of science to law was part of the effort to modernise and rationalise the legal system. Due to prevalent colonial conceptions about the untrustworthiness of native witnesses, British jurists put extra emphasis on objective and reliable forms of proof in India. 13 Through the lens of Indian medical jurisprudence, we begin to see how British legal thinking about rape combined with British colonial thinking about the peculiarities of Indian culture in ways that placed an added disability on Indian women who sought judicial remedy in the colonial courts. In the third section, I trace the impact of the double difference of Indian rape victims on high court rape case law from 1862 (when the first Indian high court was established) to 1947 (when India achieved independence). The density of cases examined allows us to see how the logic and rhetoric that governed the colonial adjudication of rape increasingly narrowed the Indian woman’s path to legal redress. In the fourth and final section, I consider the postcolonial legacies of colonial rape law in contemporary India and Pakistan.

Rape in modern English criminal law

The law of rape in modern England was significantly changed by seventeenth-century jurist Sir Matthew Hale. 14 Hale’s definition of rape as ‘the carnal knowledge of any woman above the age of ten years against her will and of a woman-child under the

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age of ten years with or against her will’ highlighted the sexual nature of the crime. 15 Hale placed emphasis in his treatise on the character and prior sexual experience of the woman, on the presence of clear physical proof of her violation and on prompt complaint of the alleged rape. In the absence of these elements, Hale asserted that there was a presumption of a false charge. The infamous ‘Hale warning’, which was read to juries and cited by judges into the 1980s, advised that ‘It is true that rape is

a most detestable crime, and therefore ought severely and impartially to be punished

with death; but it is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent’. 16 While there is no historical evidence to support Hale’s fear of malicious prosecutions, Laurie Edelstein has demonstrated that the claim of a false charge was a common and effective defence strategy in the eighteenth century. 17 This is still the case. Hale’s definition showed a new concern for the male defendant and a prejudi- cial attitude towards his female accuser who was framed as a non-credible witness

whose behaviour, character and body had to be scrutinised to corroborate her claim. This effectively established a judicial situation in which there were two defendants on trial: one charged with rape and the other charged with the presumption of consent. 18 In contrast to the law’s approach to most crimes, where the focus is on establishing the commission of a prohibited act ( actus reus ) and the mental state of the accused (mens rea ), the rules regarding proof of rape post-Hale centred on the victim. As Anna Clark argues, the paradox facing the eighteenth-century English rape victim was that a woman who publicly admitted to an extra-marital sexual encounter (con- sensual or not) was by definition an unchaste woman who had lost the very thing the law sought to protect (her virtue). She was therefore seen as an untrustworthy witness: ‘the violated woman had lost her credibility as a prosecutrix along with her chastity’. 19 In the early nineteenth century, rape came to be defined by the English courts as a crime of violence. However, rates of reporting and conviction remained low and victims continued to face enormous obstacles in prosecuting a charge. Martin Wiener observes that, ‘indictments can hardly be taken as any sort of guide to incidence’ because many women who were probably raped never had their day in court. This was due to a variety of what Wiener calls ‘filters’, including the shame of lodging

a charge, the financial cost associated with a trial, the respective class positions of

complainant and defendant, the encouragement of private settlements between parties and the exaggerated fears of malicious prosecution expressed by jurists, judges and magistrates. 20 Still, Wiener argues that in the Victorian era sexual assault began to be taken more seriously by the courts, as evidenced by an increase in prosecutions and convictions for rape. Wiener’s observations about Victorian England do not ring true in Victorian India. Although the Indian statutory law was directly based on the English law, the very kinds of evidence that decreased in importance in England (such as the sexual history of the victim and physical evidence of resistance) remained crucial in trials in India. 21 Indian women faced a twofold challenge in colonial courtrooms. Not only were they subjected to British legal presumptions about false charges, they also had to contend with specifically colonial ideas about the unreliability of native witnesses and other prejudicial ideas about Indian culture. Indian rape victims were doubly suspect suspects.

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The medico-legal understanding of rape in colonial India

The enactment of the IPC partially fulfilled British utilitarian Jeremy Bentham’s dream of creating a ‘pannomion’, a complete code of laws founded on abstract, universal and scientific principles. Over the course of the nineteenth century, criminal investiga- tions in England and in India were designed to emulate scientific inquiries, generating certain and factual knowledge under objective conditions. 22 The goal of making the criminal investigation into a science afforded scientists, scientific techniques and sci- entific evidence an important place in judicial inquiries and trials. In an effort to ensure more reliable legal decisions, new forms of physical evidence emerged such as finger- printing, photography and medical jurisprudence. 23 According to Susan Edwards, the application of medical science to law did not mitigate the impediments facing women in late nineteenth-century England. To the contrary, Edwards argues that medical experts ‘helped create and maintain a belief in the lying, imagining, hysterical, and malicious rape complainant’. 24 The development of medical jurisprudence in India must be understood not only in terms of the growing emphasis on objective and rational modes of proof in England, but also in terms of specifically colonial concerns about the legal challenges posed by the unreliability of native witnesses and the peculiarities of Indian culture. Colonial administrators, Christian missionaries and a broad range of commentators on Indian society characterised the subcontinent as a place teeming with perjurers, forgers, pro- fessional witnesses and a general population that did not value truth. 25 The notion that scientific facts were ‘infinitely more trustworthy’ 26 than oral evidence made the application of science to law especially meaningful in colonial India as it allowed administrators to locate truth in and on the body. In the late nineteenth century, new ‘truth-technologies’ such as medical jurisprudence, criminal photography, fingerprint- ing and blood- and semen-stain analysis became increasingly significant in a wide variety of colonial criminal prosecutions and especially critical in rape cases. In the first Indian publication on medical jurisprudence, Dr Norman Chevers wrote that he would not address the ‘well-known principles of Medical Jurisprudence’. 27 Instead, he organised the field of ‘Indian medical jurisprudence’ around the ‘intimate peculiarities of the native character’. 28 In doing so, he created a new form of colonial knowledge – a way of ‘thoroughly knowing the people’ 29 – that was registered in a distinctly ethnographic mode. 30 Chevers’s work is defined by a discourse of Indian difference. He described his book as ‘embodying clear and practical expositions of the various and peculiar modes by which the natives of this country are wont to effect crimes against the person, and to attempt their concealment’ 31 and he writes at length about issues that were idiosyn- cratically Indian. These include cultural observations on the ‘uncertainty of general evidence in India’, 32 the untrustworthiness of ‘these ingenious, calm-tempered, indo- lently pertinacious sensualists’ 33 and the ‘strange combination of sensuality, jealousy, wiled and ineradicable superstition, absolute untruthfulness, and ruthless disregard of the value of human life lie below the placid, civil, timid, forbearing exterior of the native of India’. 34 Chevers claimed that the biggest difference between medico-legal inquiries in England and India was the purported problem of Indian mendacity:

In England, it may be taken as a general rule that all information contributed in aid of a medico-legal inquiry contains nothing that can be regarded as willful misrepresentation, unless emanating from

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the criminal or his direct abettors. There, all men combine with earnest purpose and sharpened faculties to reveal the hidden guilt. In India, however, the deceit inherent in the character of the lower class of natives surrounds all judicial investigations with an atmosphere of obscurity. 35

For Chevers, Indians and their inherent deceitfulness were the biggest obstacles to the fair and impartial administration of colonial justice. Colonial manuals on medical jurisprudence, including Chevers’s, were used for reference and training by police surgeons, medical students and members of the legal and medical professions. These texts not only taught practitioners how to perform medico-legal examinations, they also offered advice on how to present evidence and respond to questions in court. In this way, the medico-legal understanding of rape and the law of rape as it evolved in the courts developed interdependently. In 1854, Chevers laid out the first formal guidelines for how medical personnel should conduct physical examinations into charges of rape. 36 He began by evoking Hale’s concern for male defendants, stating that ‘there is always reason to believe that persons are, by no means rarely, charged falsely with its commission’. 37 Chevers’s remarks formally staged the medico-legal approach to rape in colonial India as a means of protecting defendants from false charges. From its inception, the medico- legal understanding of rape was tied not only to a suspicious view of Indians in general but to a particularly suspicious view of Indian rape victims. After Chevers, medico-legal writing on rape consistently focused on the menace of female deception and false complaints. Medical experts in colonial courtrooms routinely offered their opinions on the deceptive and sometimes hysterical nature of female complainants. Examinations of victims were guided as much by scientific methods and the search for physical facts as they were by ethnographic observations and ideas about Indian culture. Instead of narrowly addressing the scientific ways in which a physician could establish whether a particular female had been raped, colonial manuals meditated at great length on the abstract question of whether Indian women of particular castes and classes could be raped and proposed various ways to determine when they were lying. 38 In 1885, James Gribble warned that, ‘If the medical jurist be directed to visit the female for purposes of examination, it is advisable that he should not give notice of the precise time of his intended visit in order to avoid preparation being made for it’. During his surprise visit, Gribble directed the doctor to examine the surface of a woman’s body for physical signs of her habits and character rather than for physical signs of any criminal violence done to her. The doctor was to note: ‘Whether she has the general appearance of a person addicted to self-abuse or masturbation’; ‘Whether the breasts are virginal or show signs of having been manipulated’; and whether general injuries or marks of violence on the body of the female ‘could have been self-inflicted’. 39 This approach made a victim’s age, social status, previous sexual history and conduct regular subjects of ‘medical’ inquiry. Gribble advised that the caste and class position of a child victim’s parents were important points to note during the medical examination as those of ‘respectable position and caste’ were unlikely to concoct false charges. 40 Gribble’s text reflects both the British scepticism of female complainants as well as the impact of colonial ideas about Indian culture on the medico-legal understanding of rape. In 1888, Surgeon-Major Isidore Lyon observed that ‘medical testimony, important in every country, is especially so in the East, where it is often the only trustworthy

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evidence on which hangs the liberty or life of a human being’. 41 Lyon’s instructions about how to perform an examination in rape cases began with a ‘word of warning as to the frequency of false charges’. 42 Noting that ‘there is no commoner class of false accusations in this country than that of rape’, Lyon emphasised the deceptive tactics of ‘women intent on revenge or extortion’. 43 He advised the examining doctor to note ‘the physical development of the woman, with reference to her power of resisting, and of any bruises or scratches, as these will indicate that she did struggle. The possibility of scratches being self-inflicted to support a false charge should not be lost sight of’. 44 Like Gribble, Lyon primarily directed the medical jurist’s attention to physical signs of female duplicity rather than to corporeal signs of criminal violence. The tradition of training the medico-legal examiner to root out false charges was carried on by the work of Major Collis Barry. Barry identified six specific ‘conditions under which rape is possible’. 45 These were: intoxication, insensibility, sleep, fear, coercion by numbers and ‘frustration of resistance’. Except under these conditions, Barry asserted that a woman of average strength and sound mind could not be raped by a man unaided. Barry highlighted four signs of rape to look for during a medical examination: signs of infection; signs of injury to the body; signs of seminal fluid or blood; and ‘signs of defloration’, including bruising of the genitalia and the condition of the hymen. 46 The search for physical ‘signs of defloration’ reflected the view in Britain and in India that young girls and virgins were more credible complainants than women and non-virgins. 47 The colonial preoccupation with linking the possibility of rape to the question of virginity was perversely summed up by Dr H. W. V. Cox who observed that ‘The study of the hymen and a perfect acquaintance with it constitutes the key to the whole question of rape’. 48 Cox’s view contradicted contemporary English jurisprudence, which explicitly recognised that rape could occur without rupturing the hymen. 49 The distrust of Indian rape complainants and the insistence on medical corrobora- tion of rape charges was not the exclusive preserve of British colonial personnel. Indian practitioners and commentators embraced the same presumptions and prejudices held by their British counterparts in the colonial and postcolonial periods. Jaising Modi, whose Medical Jurisprudence and Toxicology (1920) remains the standard authority in India today, asserted that most rape cases were either concocted for blackmail or to deny consensual sex. Modi instructed that the central purpose of a medical inquiry was to find evidence of resistance: ‘It is necessary to prove that the resistance offered by the woman was up to her utmost capability, and that every means, such as shouting, crying, biting, beating, etc., had been tried to prevent the successful commission of the act. The act is regarded as rape if it is accomplished after the woman has yielded from fear, duress or complete exhaustion’. 50 Modi’s text was lauded by contemporary Indians for being the first written by an Indian ‘in a way that was applicable to our country and could be easily understood by our countrymen’. 51 In his chapter on rape, however, Modi’s remarks differ little from those made by ‘foreign authors’. For example, Modi poses the characteristically English question, ‘can a healthy adult female be violated against her will?’, and answers, ‘under ordinary circumstances, it is not possible for a single man to hold sexual intercourse with a healthy adult female in full possession of her senses against her will, unless she is taken unawares, thrown accidentally on the ground and placed in such a position as to render her completely helpless, or unless she swoons away from fright or exhaustion

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after long resistance’. 52 As Modi’s text exemplifies, Indian medico-legal jurists, like their British colonial colleagues, applied science to the law of rape in India in ways that explicitly bolstered discriminatory attitudes about female complainants. The expert was given a special place in colonial India under the Indian Evidence Act (1872), which distinguished expert testimony from the testimony of other witnesses by permitting experts to testify to both facts personally observed and to draw inferences or opinions from those facts. (Ordinary witnesses could only testify to facts they observed.) In tracing how the medico-legal understanding of rape and the law of rape developed interdependently, it is important to note that the Indian Evidence Act did not clearly define the evidentiary limits of medical expertise. Thus, whether a medical expert offered a verifiable scientific observation about the presence of semen stains on a complainant’s clothing or an unverifiable cultural claim about the impossibility of raping a low-caste Indian female under ordinary circumstances, his testimony was received by the colonial courts as an objective expert opinion.

Rape on trial in colonial India, 1862–1947

The cases analysed in this section draw on the reported Indian high court decisions from 1862–1947. 53 The Indian high courts primarily served in their criminal capacity as courts of appeal, reference and revision. The rules guiding selection of high court judges discriminated against Indians, creating a majority-British bench for most of the colonial period. The high courts were colonial India’s only courts of record, meaning they were the only tribunals required to publish their legal decisions. The lower courts generally did not preserve their records or print their decisions, making it impossible to determine rates of conviction and acquittal in the lower courts or the percentage of cases appealed to the high courts. A statistical examination of high court rape case law in India suffers from the same limitations faced by criminal law historians in other global contexts. First, the historical record cannot be taken as an accurate mirror of the historical reality. Unrecorded crime, as James Sharpe puts it, is the ‘dark figure’ impeding our understanding and analysis of rates and patterns of crime and conviction over time. 54 When it comes to rape, this ‘dark figure’ may very well represent the majority of incidents due to the plethora of factors that prevented a victim from lodging a charge and prosecuting a case. Nonetheless, because high court decisions set a binding precedent for all lower courts within their jurisdiction, and because they cited each other, the high court case law is of particular significance. By 1947, almost a century after the passage of the modern colonial codes that promised Indians rational and reliable justice, the odds of prevailing in a high court rape case were decidedly in favour of defendants. Between 1904, when the Criminal Law Journal began recording all criminal cases reported by the High and Chief Courts, and 1947, there are seventy-five reported rape trials. In these cases, the high courts confirmed 37 per cent of the lower courts’ convictions and either acquitted or reduced the sentences of defendants in the remaining 63 per cent of cases. Why were the odds almost two to one in favour of defendants and what did it take for a complainant to prove her charge? The high rate of reversal of convictions upon appeal may well be attributable to the fact that the colonial high courts established strict evidentiary requirements that made

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the truthfulness of a woman’s charge dependent on a host of corroborating factors. By the 1920s, corroboration of a rape charge was recognised as a ‘general rule’ in the high courts. 55 In Kanshi Ram v. Emperor (1924), the Lahore High Court found that it was ‘quite unsafe for cases of this kind to convict an individual merely as to the accusation of the woman who has been raped’. 56 In Nanak v. Emperor (1924), the Lahore High Court held that it was ‘highly dangerous to convict the appellant on an uncorroborated statement of the girl’. 57 In Maung Ba Tin v. Emperor (1926), the Rangoon High Court made belief of a woman’s testimony the exception to the ‘general rule’ of disbelief: ‘it is notoriously very unsafe in such cases to rely on the uncorroborated evidence of the woman alone and to make it an exception to the general rule’. 58 Four kinds of corroborating evidence were particularly central to high court case outcomes during the period under review. These were: class and caste status; prior sexual history; fresh complaint (the prompt lodging of a charge); and evidence of resistance on the body evidencing the crime. 59 One or all of these corroborating factors were required to dispel the presumption that the victim had consented to sex and then filed a false charge. Thus, despite the fact that colonial administrators viewed Indian women as passive victims who needed to be saved from Indian men and their oppressive cultural traditions, British ideas about the unreliable rape victim and the search for corroborating forms of evidence were as strong in India as they were at home, if not more so. This is because in the colonial rape trial, not only did British judges confront the usual suspect (the female complainant) but here was the doubly suspect suspect: the native female complainant. The discriminatory attitude held by British colonial jurists towards Indian rape victims was different from, though certainly not anathema to, indigenous Indian le- gal thinking. Although it is beyond the scope of this article to compare the colonial treatment of rape to the pre-colonial treatment of rape, Tanika Sarkar observes that nineteenth-century Indians (and Bengalis in particular) did not view women as au- tonomous legal subjects ‘in possession of an individuated identity of self separable from the family–kin–community nexus to which rights could adhere’. 60 Within Indian society, there was ambivalence about whether a woman was a person who enjoyed protection from violent death when the community laws allowed such a death to occur. In the case of rape, there was tremendous social and cultural pressure on women not to appear in court, not to speak about intercourse in public and not to bring shame upon their families by lodging a charge. The cases analysed in this section are grouped in terms of the four types of corroborating evidence required to prove a rape charge. The first, the relevance of class and caste status, was illustrated in two different cases tried by the Kathiawad Chief Court. 61 In King v. Patha Kala (1904), Viru, ‘a young and apparently modest girl’, claimed that she was working alone in her father’s wheat field when Patha Kala, a man of ‘lower caste’, came up behind her, threw her to the ground, and raped her. 62 Viru’s screams attracted the attention of three people who rushed over and saw Patha Kala fleeing the scene. Overcome by shame, Viru threw herself into a nearby well. In his decision, the judge commended Viru’s ‘truthful demeanour’, ‘apparent modesty’, the lack of prior ‘immoral intimacy’ between her and the defendant, and the unlikelihood of her ‘coming forward and destroying her reputation and prospects of getting a husband by bringing a false accusation of rape’. He reasoned that her attempt to commit suicide was a strong indication that she ‘was not a willing party to the act’. Because Viru’s

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caste status was higher than Patha Kala’s, the judge called it a ‘serious offence, as the complainant’s character is seriously affected by it’. Patha Kala was sentenced to four years of rigorous imprisonment. Although Viru prevailed, what is striking about the Patha Kala decision is that all of the elements that convinced the court to uphold the conviction centred on Viru herself, even though she was not the person on trial. Evidence of her non-consent, her appearance, her sexual history and her caste status took centre stage. Viru was the quintessentially credible victim: she was a virgin, she screamed and scratched, her body bore witness to the crime, she attempted to save her honour by killing herself and her attacker was both a stranger to her and from a lower caste. Ironically, the victory for this particular complainant ensured failure for those who followed her. In 1907, a very different complainant came before the Kathiawad Chief Court, one who did not fulfil the colonial expectations of a ‘real rape’. 63 In Emperor v. Prabhatsang , a low-caste itinerant beggar woman named Bai Galal claimed that she was sleeping on a temple platform when two men began accosting her. 64 After refusing to follow them, the men allegedly gagged Bai Galal with a scarf and dragged her 200 yards down a path where they repeatedly gang-raped her. At one point, Bai Galal removed the gag and screamed, attracting the attention of nearby villagers. Signs of struggle were observed by witnesses at the scene of the crime. Evidence presented by a medical expert who examined Bai Galal found she had ‘suffered somewhat from excessive intercourse’. He also found semen on her petticoat and ‘other trifling injuries to her person and clothes, which he thought might indicate violence’. The Kathiawad Chief Court determined that intercourse between the parties had definitely occurred but reasoned that it could not have taken place without Bai Galal’s consent as there were no satisfactory indications of ‘real resistance’ or ‘real struggle’ from this ‘strong and mature woman’. Noting that it was ‘very probable’ that Bai Galal had consented to intercourse, the court elaborated upon the stricter evidentiary requirements expected of low-class Indian women:

The breaking of her bodice strings and the marks of slight scratches on the breast are such as can easily have been due to the ordinary courses of lust. This is an unpleasant subject which I need not discuss here at length; but I am compelled to think that with people of this low class, such slight injuries are explainable other than by violence. Once more the scratches on the back are easily accounted for by the fact that such persons would not be careful to prepare any fitting site for their debauchery. A slight unevenness on the ground would suffice to cause such injuries, and a tear on the petticoat amounts to virtually nothing at all in the case of a poor Koli woman. 65

In Bai Galal’s case, cultural assumptions about a ‘poor Koli woman’ and her ‘rough’ sexual habits trumped physical evidence of bodily scratches and torn clothing. The defendants were acquitted. According to Martin Wiener, the Victorian view of women as the weaker sex weakened class barriers to a successful prosecution in England as ‘more delicate creatures could not be expected to resist with great force’. 66 As long as chastity could be proven, all women, even the poor, stood in a stronger position in Victorian courts. In colonial India, as Bai Galal’s case indicates, poor women continued to be held to a different standard by both British and Indian jurists. Jaising Modi, for example, argued that women of different social classes should be expected to resist their attackers differently: ‘a woman belonging to a labouring class who is accustomed to hard and

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rough work will be able to offer a good deal of resistance

a middle or rich class of an educated family

will soon faint or will be rendered powerless from fright or exhaustion’. 67 Gendered assumptions about Indian class and culture placed an added evidentiary burden on poor female complainants who were presumed to have the physical ability to fight off an attacker. The colonial high courts not only assumed that low-caste and low-class women had greater capacity to resist, they were also seen as more likely to institute false charges because they had less to lose by doing so. In Musummat Chapa Pasin v. Emperor (1928), the Patna Chief Court reasoned that an ‘attempt to outrage modesty’ could not be perpetrated on a woman who had none: ‘the incidents and the conduct of [complainant] Lakhpatia are clear indications that she either had no modesty to mention or that it was not such as would be outraged by any of the acts which are attributed to the accused’. The marks of betel on Lakhpatia’s teeth were interpreted by the court as distinctive features of a ‘woman of the streets’ and not ‘of a respectable woman who had just left her home’. Although medical evidence presented at the trial documented ‘abrasions on the back of [Lakhpatia’s] thigh; an abrasion on the right thigh above the waist, scratches on the thigh and back, a swelling on the right leg and abrasions on the middle of the chest’, the defendant was set free. 68 As in Bai Galal’s case, the presumption that a poor woman with no ‘modesty’ lacked credibility outweighed significant evidence of physical violence.

will not be able to resist for long and

a woman belonging to

Conversely, the high courts assumed that women of higher social status had more to lose by instituting a false complaint and were therefore less likely to do so. In Labh Singh v. Emperor (1923), the Lahore High Court upheld the conviction of two men who gang-raped a ‘helpless and unprotected’ woman. The court concluded that the victim’s class status left them no reason to disbelieve her, ‘it is hardly possible that any self-respecting woman would come forward in a Court of Justice to make such

a humiliating statement against her honour unless it was absolutely true’. 69 Although

the colonial statutory law did not define rape as a crime of ‘honour’, it is significant

that the colonial courts mobilised cultural assumptions about Indian society in ways that advantaged certain women and disadvantaged others. Prior sexual activity was the second factor correlated by the courts to the likelihood of a victim instituting a false charge. Within the doubly suspect category of the native woman, the least credible of all complainants were married women and women of ‘bad character’. Section 155(4) of the Indian Evidence Act, which remained on the books in India until 2002, allowed the defence to present evidence about the victim’s character and sexual history in order to suggest that non-virgins could not be raped. The enhanced scrutiny of women complainants followed from the assumption that women ‘used to sex’ were likely to consent to intercourse and then to file a false rape charge to conceal a moral impropriety. 70 In Amir-ud-Din v. Emperor (1924), the Lahore High Court acquitted the defendant of raping a seventeen-year-old girl. In its decision, the court cited medical evidence that proved that the victim was not a virgin and found that as the scene of the crime was ‘a place where the girl could not easily have been forced to go against her will’, intercourse must have taken place with her consent. 71 Conversely, in Sultan v. Emperor (1926), the Lahore High Court found that because the victim was a virgin prior to the attack, it was unlikely that she could have been a consenting party: ‘The

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fact that the girl was virgo intacta up to the date of the occurrence is very strong proof’. 72 The distrust of non-virgins had English legal roots that were sometimes directly revealed by colonial jurists. In Emperor v. Panna Lal (1924), the Allahabad High Court upheld the acquittal of two men accused of raping ‘a young, low-caste married Hindu woman of some fourteen years’. 73 Despite the girl’s cries, which attracted several eyewitnesses who saw the accused men running away, and the discovery of the girl’s broken bangles indicating a struggle at the scene of the crime, the court invoked Hale’s concern with protecting male defendants:

It is a commonplace to those experienced in the administration of criminal law that in no cases is it more difficult to arrive at a confident verdict as to whether evidence is false or true than in cases in which women allege that they have been outraged or that outrage has been attempted upon them. Not only has one to consider the possibility of deliberate falsehood but those who have to arrive at a verdict have to consider the possibility of unintentional mis-statements produced by hysterical conditions which are apt to be found in cases of this nature. 74

The malicious and hysterical rape complainant conjured up by English criminal ju- risprudence had made her way to colonial India. Where victims were young and virginal, the courts were more likely to convict and to inflict harsher punishments. 75 In 1918, the Nagpur Judicial Commissioner’s Court held that, ‘the measure of punishment should be proportioned to the greater or lesser atrocity of the crime, of the conduct of the criminal, and to the defenceless and unprotected state of the injured female’. 76 The Nagpur Court applied this precedent in the case of Soosalal Bania v. Emperor (1924) where eleven-year-old Tulsia, a domestic servant, claimed that was raped by her employer who threw her on the ground, pinned her legs and gagged her to stifle her screams. Medical evidence showed the girl’s hymen to be ruptured, her genitals inflamed and tender to the touch, a profuse discharge of blood coming from her vagina and difficulty walking. The court rejected the defence’s argument that the charge was invented by Tulsia to conceal her shame about ‘mischief’ with another man, citing Tulsia’s ‘tender age’ and innocence: ‘The story told by Tulsia, corroborated as it is in material particulars has a ring of truth about it; it does not sound to me as an invention as the appellant is attempting to suggest. From her deposition and the straight manner in which she gave it, she appears to be a guileless, innocent girl of tender age who has had no experience of the man ever before’. The defendant’s request to reduce the sentence of long-term imprisonment was denied because ‘the girl was a helpless victim’ and the crime was deemed to be ‘atrocious’. 77 In 1945, the Nagpur High Court dismissed the corroboration requirement for girls in stranger rapes by reasoning that children who alleged being raped by strangers could have no ulterior motives and were no less believable than children who alleged being robbed by strangers. 78 Fresh complaint was the third form of evidence sought by the colonial high courts to corroborate a rape charge. The lodging of a prompt complaint with the authorities, the Lower Burma Chief Court found, was not admissible as evidence of the truth of the allegation but only as ‘corroborating the credibility of the complainant and as evidence of the consistency of her conduct’. 79 Failure to lodge a prompt complaint, on the other hand, was interpreted as a strike against a complainant’s credibility. In Queen Empress v. Sitanath Mandal (1895), the complainant claimed that she was abducted, gang-raped

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and wrongfully confined for thirteen days by a group of men. The Calcutta High Court found that the woman’s general conduct following the alleged crime, particularly her failure to lodge a prompt charge, was inconsistent with the behaviour expected of a rape victim: ‘If the woman had been raped or subjected to great personal violence or indignity, it is impossible to suppose that she would not have complained to one or other of the persons whom she must have met when she was brought within the

precincts of the Alipur Court

to the treatment which she had received’. 80 The court did not consider what factors might have inhibited a woman who had allegedly been brutalised for thirteen days from making a complaint to the police. The most important form of evidence sought by the colonial high courts was proof of violent resistance and physical injury. Forensic evidence and medico-legal experts were critically important to trial outcomes, even though medico-legal examinations were never formally required by the statutory law. Colonial judges routinely warned juries not to convict in rape cases unless the complainant’s testimony was corroborated by physical facts. In 1876, Surgeon-Major Robert Harvey concluded from his analysis of 372 rape cases that, if a medical officer discovered no physical signs of rape, ‘the case is practically over’. 81 In 1902, Bombay Police Surgeon Arthur Powell described the medical examination as a ‘Court of First Instance’ as without a medico-legal report, the police rarely proceeded to investigate a charge. 82 During the period under review, medical observations about ‘the body evidencing the crime’ 83 and other physical proof of struggle and injury almost eclipsed the oral testimony of female complainants. The precedent-setting case on the issue of physical evidence was Empress v. Shankar (1881). In Shankar , the Bombay High Court established strict evidentiary standards for conviction that remained binding for decades. 84 The Shankar decision relied on a Welsh case, Reg. v. Lloyd , which held that, ‘in order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part’. 85 Judge Melvill of the Bombay High Court invoked the high evidentiary bar set by Lloyd to overturn the lower court’s conviction of the defendant. He pointed to the cultural problem of false charges in India as necessitating material proof of a victim’s claim: ‘We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think that a conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance’. 86 The IPC’s definition of rape, which was structured around the concept of consent, enabled the legal interpretation made in Shankar . By having to provide evidence of ‘all resistance’, complainants effectively had to prove non-consent. In Shankar , proof of non-consent amounted to an overwhelming show of force by the defendant and evidence of the utmost physical resistance by the complainant. Following Shankar , the high courts consistently expressed reluctance to con- vict except where the physical evidence overwhelmingly proved non-consent. The rule of practice, as Indian jurist Sir Hari Singh Gour observed in his criminal law commentary, The Penal Law of India (1909), was that ‘consent may be inferred from non-resistance’. 87 However, the reverse, as we have seen in Bai Galal’s and Lakhpatia’s cases, did not hold. Resistance did not necessarily imply non-consent. As Gour put it,

Her statement is doubtless greatly exaggerated as

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‘there is such a thing as maiden modesty, and some resistance is simulated even by women who are most anxious for the connection’. 88 The insistence on overwhelming evidence of physical resistance is exemplified by the Punjab Chief Court case of Abdul Rahman v. Emperor (1916). Citing Shankar , the court held that, although there were lacerations to the eleven-year-old complainant’s labia majora, there were no lacerations to her labia minora. Thus, the court concluded, ‘It may be that the boy took liberties with the girl, but his action has been greatly magnified’. The defendant was acquitted even though the complainant was a young girl with signs of physical injury to her genitals because the physical evidence did not sufficiently indicate the proof of ‘all resistance’ sought post- Shankar . 89 Susan Estrich observes that although rape is not the only crime in which consent is a defence, it is the only crime in which evidence of physical resistance is required to establish non-consent. 90 Signs of struggle and medically verifiable marks of violence were almost always required by the colonial courts to satisfy the expectation that a raped body should bear witness to its violation. This expectation would have posed a particular challenge to women in nineteenth-century India who would have been reluctant to consent to medical examinations due to their association with the government’s system of regulated prostitution and the lock hospitals in which Indian prostitutes underwent compulsory medical inspection. In the absence of physical proof of struggle and injury, the colonial high courts almost always acquitted. In 1935, the Lahore High Court dismissed the rape charges against four men who allegedly broke into a woman’s home, dragged her to a neigh- bouring town and raped her. Although the convictions of breaking and entering and abduction were upheld, the rape charge was dismissed because there were ‘no marks of injury’ on the woman’s vagina. 91 In Baji v. Emperor (1933), the complainant claimed that she was raped by two men as she slept near the door of her house. The Oudh Chief Court held that without physical evidence of injury or signs of struggle, conviction was ‘very unsafe’:

It would be most dangerous to base a conviction on her uncorroborated testimony alone; the first and foremost circumstance that can be looked for in a case of rape is evidence of resistance which one would normally expect from a women unwilling to yield to a sexual intercourse forced upon her. Such a resistance may lead to tearing of clothes, the infliction of personal injuries and even injuries on her private parts. When there is absolutely no evidence on the record of any struggle having taken place nor were marks of any injuries found in the person either of the complainant or of the accused, it was held that the accused cannot be said to have had a connection with the woman without her consent. 92

Here, the testimony of the female complainant was entirely and intentionally eclipsed by the demand for physical facts. Medical evidence was particularly significant in rape cases where the other three corroborating factors discussed above were not met. The Baji decision referred to the precedent set in Mahla Ram v. Emperor (1924) in which physical evidence of non-consent was sought ‘first and foremost’. In Mahla Ram, Raj Bibi, a woman who ‘did not bear a good character’, alleged that she was travelling alone by train when the defendant entered her compartment, dragged her to the ground and raped her. Raj Bibi’s screams attracted two men from the neighbouring compartment who came to find her weeping while Mahla Ram was tying up his trousers. Because they were not eyewitnesses to the actual rape, the Lahore High Court dismissed their evidence as

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‘not of great importance’. The court did, however, accept the testimony of witnesses for the defence who claimed that Raj Bibi had been living in Lyallpur, Punjab, in a chakla (government brothel). Based on this information, and the lack of physical signs of struggle and injury, the court found that ‘it could not be held that there was no consent’. Overturning the lower court’s conviction, the court paraphrased Gour’s directive in The Penal Law of India that consent could be inferred from non-resistance:

‘The first and foremost circumstance that can be looked for in cases of this kind is the evidence of resistance which one would naturally expect from a woman unwilling to yield to sexual intercourse forced upon her. Such a resistance may lead to tearing of clothes, the infliction of personal injuries and even injuries on her private parts’. 93 In his treatise, Gour continues, ‘If she resisted, she must have also shouted for aid, unless she was gagged, and if she shouted, could not others have gone up to her rescue? A question has often been raised if it is possible for a woman for a man to rape a woman unassisted. If the man was not far superior to her in strength, it is improbable. But if he was, it is possible’. 94 Gour’s characterisation of rape, which relied on what Susan Estrich calls ‘a schoolboy definition of force’ – ‘force is when he hits me; resistance is when I hit back’ – ignored the myriad other ways in which men force women to have unwanted sex. 95 One of the more peculiar effects of the colonial insistence on physical forms of proof is that defendants could appeal against their convictions by simply claiming that the failure to have either the complainant or the defendant medically examined itself provided the reasonable doubt required for acquittal. 96 In Jalal v. Emperor (1930), two men allegedly broke into the house of a lone woman, dragged her away and raped her. Her screams attracted the attention of villagers who witnessed the woman being carried away but did not witness the gang rape. Partly because no medical examinations were done on the defendants, the Lahore High Court set aside their convictions. 97 Similarly, in Ram Kala v. Emperor (1946), despite the fact that the thirteen-year-old victim died as a result of her injuries, the defence successfully argued that the defendant had not been medically examined for evidence of injury to his ‘member’ and that such an examination would have proven his innocence. The defendant was acquitted. 98 By the 1930s, the perceived ‘danger’ of convicting a defendant based on a woman’s uncorroborated testimony was so strong that the high courts required cautionary mes- sages to be read to juries as a rule of practice. In Surendra Nath Das v . Emperor (1934), a young girl under fourteen years of age claimed that she was gagged and raped by the twenty-six-year-old defendant. The physician who examined her found a tear in her vagina but also noted that ‘the orifice was much larger than usual’, which he interpreted as evidence that she was not a virgin prior to the assault. Overturning the lower court’s conviction, the Calcutta High Court found that juries in rape cases must be read cautionary warnings against accepting the evidence of complainants in the absence of ‘some material particular implicating the accused’. 99 In failing to read such a warning, the court held that the lower court judge had misdirected the jury. The defendant was acquitted. A decade later, the Bombay High Court echoed this finding, holding that ‘it is a rule of the Court, in cases of rape, not to act on the evidence of the complainant without some corroboration’. 100 By the end of the period of British rule, colonial criminal jurisprudence was markedly hostile to rape victims who sought judicial remedy in court. A woman’s charge required some form of material corroboration, preferably a body evidencing

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the crime, although assumptions about class and culture sometimes trumped proof of bodily injury and broken bodice strings. In a contemporary critique of the colonial case law, the editors of Calcutta Weekly Notes charged that these presumptive evidentiary requirements had opened up possibilities for an increased incidence of rape due to the public belief that ‘under the law as laid down by the Calcutta High Court, it is possible to rape any girl with impunity’. 101 The promise of British justice was a cornerstone of colonial governance. British officials not only used law to create the colonial state, they also used the language of law to legitimise their rule. 102 Colonial administrators asserted that a rational, equitable and certain system of law distinguished British rule from the personal and arbitrary methods employed by pre-colonial regimes. 103 The colonial system may have made the law more certain and reliable, but what exactly did this mean for victims of rape? As we have seen in the case law and in medico-legal treatises, colonial criminal jurisprudence framed rape complainants as a special class of witnesses to whom special standards of proof applied. British presumptions about the frequency of false charges travelled to India where they combined with colonial ideas about Indian culture and made rape convictions examined by the high courts very difficult to uphold. Strict evidentiary requirements were established by the courts according to the presumption that the doubly doubtful complainant (the native woman) was a non-credible witness whose testimony could not be trusted. To corroborate her charge and to prove non-consent, the high courts required additional evidence such as fresh complaint, class and caste background, prior sexual activity and, most importantly, physical marks of violent resistance on the body evidencing the crime. In certain important respects, the treatment of complainants in rape cases in England and India were not dissimilar. This can partially be explained by the fact that IPC was based on English law and the high courts were predominantly manned by British judges who carried with them to India a host of prejudicial legal assumptions developed at home. While much has been written about the rule of colonial difference and the ways in which the colonisers adopted particular modes of governance to sustain control in the colonies, something akin to a rule of colonial indifference characterises the colonial criminal jurisprudence on rape. Ideas about Indian otherness certainly shaped the colonial rape case law but not in a manner that allowed white men to make any claims about saving brown women from brown men. In fact, the sources examined in this article suggest that the colonial law of rape may have made Indian women increasingly vulnerable to rape by Indian men.

Postcolonial legacies

The legacies of colonial rape law have had disastrous consequences for women in postcolonial India and Pakistan. After independence, Indian nationalists chose to retain virtually the entire administrative, judicial and penal structures created by British administrators in the nineteenth century, including the Indian Penal Code and the Indian Evidence Act. Legislative reforms in India after 1947 have achieved little in terms of reducing the incidence of rape or increasing the rate of conviction. 104 The emphasis on the body evidencing the crime remains as strong as ever in India today. Even when the postcolonial Indian courts began to challenge the broad

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authority of the expert, his role in rape cases remained unchallenged. In his 1955 law commentary, Y. H. Rao criticised ‘the so-called impregnable fortress from which the expert is generally deemed to speak’. Nonetheless, Rao insisted upon the necessity of forensic evidence in rape cases because of the frequency of false charges. 105 Likewise, Jagdish Prem’s Law and Methods of Police Investigation and Criminal Prosecutions (1963) organised the enquiry into a rape charge around the presumption of consent and female deceit:

Rape is often set up to hide the downfall of a young girl who wishes to avoid her shame by turning the pity and sympathy of everyone towards her; girls often enough invent attacks by quite unknown

persons or, graver still, they bring false accusations against persons named

may be easily set up by girls at the age of puberty. When a girl over sixteen years or a woman is in question, juries are very prone to think that ‘there cannot be smoke without fire’. Women intent on revenge or extortion will frequently bring a false charge against a man, producing a tutored child as the victim. Another class of false accusation is that brought by the woman who was the consenting party until caught in the act. In such case no injury will be found unless the woman was a virgin. Modern magistrates always look with great suspicion on all charges of rape unless made in a day of two after its alleged occurrence. 106

False charges of rape

Prem’s observations directly echo those made by British colonial jurists and contradict everything we know from postcolonial feminist scholarship and official government statistics about the low levels of reporting and conviction in cases of rape. Indeed, there is no evidence to support the notion that rape is a charge either frequently or falsely made in India. On the contrary, the stigma associated with the crime of rape make it highly likely that reported rapes represent, in Flavia Agnes’s formulation, ‘only the tip of the iceberg’. 107 Nonetheless, Pratiksha Baxi has found that medico-legal practitioners in trial courts in contemporary India continue to claim that women frequently lie about being raped and assume a woman cannot be raped by a man unaided. To verify the truth of a complainant’s charge, experts regularly subject victims to lie-detector tests and to the ‘two-finger test’, a technique used to determine whether a complainant is a virgin or not. When two or more fingers can easily be inserted into a woman’s vagina, the medico-legal certificate will note that she is ‘used to sex’ or ‘habituated to sex’. 108 The enduring effects of the colonial jurisprudence were vividly expressed in India’s landmark postcolonial rape trial: the Mathura case. On 26 March 1972, a sixteen-year-old tribal girl named Mathura was repeatedly raped and molested by the head constable and one of his subordinates while in their custody at a police station in the western Indian state of Maharashtra. Two years later, the case was tried in the Chandrapur Sessions Court. Describing Mathura as a ‘loose woman’ who must have consented to sexual intercourse and then lied about it, the Sessions Court judge acquitted the defendants. Ultimately, the Indian Supreme Court ruled that Mathura’s failure to sound an alarm during the alleged rape, along with the absence of injuries on her body, constituted evidence of consent. If she had resisted, the judges of India’s highest court reasoned, there would have been signs of resistance. As there was no evidence of resistance on her body, the policemen were set free. 109 The Mathura case galvanised Indian activists who successfully pressured the government to reform the rape law. At the centre of the debate was the old colonial question of consent and the requirement that the body evidencing the crime should prove non-consent. The legislation ultimately passed in 1983 focused primarily on

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custodial rape (rape in police custody) in which the question of consent was deemed to be irrelevant. The Indian Home Ministry’s National Crime Records Bureau reported a 678 per cent increase in rape between 1971 and 2006, making rape India’s fastest growing crime. 110 In 2008, India ranked third in the world in terms of the number of registered rape cases (18,359). 111 Even so, it is widely believed that rape in India is grossly under-reported. 112 The rate of conviction in rape cases in India hovers around 4 per cent. 113 Obviously, the hard-fought legal reforms since the Mathura case have had little positive effect. Flavia Agnes observes that, ‘the same old notions of chastity, virginity, premium on marriage and fear of female sexuality are reflected in the judgments of the post-[1983] law’. 114 Agnes attributes this to the fact that the amended law of rape did not fundamentally redefine the colonial definition of the crime. In Pakistan, the legacies of colonial law have also had a devastating effect on victims of rape. Following Partition in 1947, the newly formed Pakistani government adopted the Anglo-Indian Codes framed by British colonial administrators, including the renamed but scarcely reconstituted Pakistan Penal Code. In the late 1970s and 1980s, efforts to Islamise Pakistan found expression in amendments to the secular law codes. The Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) removed the crime of rape from the Pakistan Penal Code and redefined it in Islamic terms. The Zina Ordinance criminalised zina (illicit intercourse) in a broad fashion that included not only zina-bil-jabr (illicit intercourse with force) but also extramarital and nonmarital sex (such as adultery and fornication). The statutory definition of zina-bil-jabr in the Hudood Ordinance explicitly bor- rowed elements from colonial law, particularly in its structuring of the crime around the concept of consent. In practice, too, the Pakistani courts have relied on forms of evidence and assumptions foreign to the Islamic tradition, demanding ‘material particulars’ to corroborate a rape charge, especially where the complainant is not a virgin. 115 The very factors which were central determinants to the outcome of colonial rape cases – fresh complaint, moral character, virginity and physical evidence of force and resistance – have also featured prominently in the postcolonial zina case law even though these factors have no application in Islamic law. 116 Medical evidence continues to play a crucial role in postcolonial Pakistani rape trials. Julie Dror Chadbourne writes that medical evidence has ‘gripped the throat’ of the Pakistani courts: ‘It is generally understood in practice in Pakistan that a Zina Ordinance case cannot move forward without the Medico-legal Report’. Judges in Pakistan’s Federal Shariat Court demand the ‘display [of] enough cuts, bruises, or broken bones’ to signal ‘utmost resistance’ and non-consent. 117 Where there is no such corroboration, Pakistani women who report being raped have subsequently found themselves charged and imprisoned for having illicit intercourse, or committing zina . 118 In 1983, the Federal Shariat Court converted a rape conviction into a case of illicit intercourse based on the inference that ‘since no violence was found on [the complainant’s] body, it could be reasonable to infer that she was a willing party to sexual intercourse’. 119 In 1987, the Federal Shariat Court found that the lack of medical evidence implied that the complainant ‘had put up no real resistance and it appears that the act was done with her consent’. 120 Medico-legal examinations of rape victims in Pakistan are conducted under de- plorable conditions. In 1999, Human Rights Watch found that most medico-legal

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facilities in Pakistan were understaffed, underfunded, rarely open and decrepit, mak- ing ‘the performance of professional and thorough medico-legal evaluations virtually impossible’. The Human Rights Watch Report describes the Office of the Police Sur- geon in Karachi as a

narrow, dirty, windowless and unventilated room

small, unreliable lamp poised above the makeshift examination table. This is very troubling because the goal of the examinations undertaken in the room often is to discern minute lacerations, fine cuts, bruises and discoloration on a woman’s body, including her vaginal area, which requires strong lighting, particularly in the absence of specialised examination tools and equipment. 121

very badly lit, with only one ceiling light and a

Rather than focusing on the collection of relevant evidence required to establish the nature and extent of the victim’s injuries, the focus of the examination is to determine whether the complainant is a virgin. As in India, a complainant’s ‘chastity’ in Pakistan is routinely ‘proven’ during medical examinations by the ‘two finger test’. Police rarely follow up on charges lodged by those who ‘fail’ this test. These ideas about non-consent, virginity and the use of science to discover evi- dence of violence to the body draw directly from colonial jurisprudence and have no relevance to the Islamic legal tradition except to sharpen its evidentiary edge. To be sure, the Zina Ordinance was a harsh and misogynistic law that was rightly condemned by the international community for its draconian standards of proof and contradictory consequences. Certainly, no one regrets its repeal in November 2006. 122 However, the harshness of Hudood drew not simply from a ‘traditional’ Islamic law but also from a postcolonial state that absorbed and adapted the legal precedents and scientific principles of a modern colonial legal regime. The enduring effects of colonial law in postcolonial India and Pakistan make an investigation of the impact of the colonial criminal justice system on rape victims more than just a historical exercise. The codification of the criminal law and the develop- ment of a new medico-legal understanding of rape in the colonial period introduced evidentiary standards and legal practices that continue to make it difficult for victims to successfully prosecute a charge in postcolonial courts. As lawyers and activists in South Asia press for legislative reforms, they face not only local forces of political and social resistance but also the enduring historical legacy of colonial jurisprudence.

Notes

1. The work of Ann Laura Stoler has been particularly influential on this scholarship. See Ann Laura Stoler, Carnal Knowledge and Imperial Power: Race and the Intimate in Colonial Rule (Berkeley: University of California Press, 2002); Ann Laura Stoler, ‘Making Empire Respectable: The Politics of Race and Sexual Morality in 20th Century Colonial Cultures’, American Ethnologist 16 (1989), pp. 634–60.

2. Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (New York:

Routledge, 1995), p. 22.

3. See Kenneth Ballhatchet, Race, Sex and Class under the Raj: Imperial Attitudes and Policies and their Critics (London: Weidenfeld and Nicolson, 1980); William Dalrymple, White Mughals: Love and Betrayal in Eighteenth-Century India (London: Viking, 2003); Durba Ghosh, Sex and the Family in Colonial India: The Making of Empire (Cambridge: Cambridge University Press, 2006); Stoler, ‘Making Empire Respectable’.

4. Jenny Sharpe, Allegories of Empire: The Figure of Woman in the Colonial Text (Minneapolis: University of Minnesota Press, 1993). The fear of ‘black peril’, the perceived sexual threat of colonised males to white colonial women, emerged during times of political crisis in several sites across the British empire. See e.g., Jock McCulloch, Black Peril, White Virtue: Sexual Crime in Southern Rhodesia, 1902–1935 (Bloomington: Indiana University Press, 2000).

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5.

Jawaharlal Nehru, Toward Freedom: The Autobiography of Jawaharlal Nehru (Boston: Beacon Press, 1958), p. 272.

6.

On rape in colonial South Africa, see Pamela Scully, ‘Rape, Race, and Colonial Culture: The Sexual Politics of Identity in the Late Nineteenth-Century Cape Colony, South Africa’, American Historical Review 100 (1995), pp. 335–59.

7.

Thomas Babington Macaulay, J. M. Macleod, G. W. Anderson and F. Millett, The Indian Penal Code as Originally Framed in 1837 with Notes (Madras: Higginbotham, 1888), p. 64.

8.

Walter Morgan and Arthur George Macpherson, The Indian Penal Code, (Act XLV of 1860), with Notes (Calcutta: G. C. Hay, 1863), pp. 323–6.

9.

Lata Mani, Contentious Traditions: The Debate on Sati in Colonial India (Berkeley: University of California Press, 1998); Nicholas B. Dirks, Castes of Mind: Colonialism and the Making of Modern India (Princeton: Princeton University Press, 2001).

10.

Here I paraphrase Gayatri Chakravorty Spivak’s notion of ‘white men saving brown women from brown men’ as articulated in her essay, ‘Can the Subaltern Speak?’, in Cary Nelson and Lawrence Grossberg (eds), Marxism and the Interpretation of Culture (Urbana: University of Illinois Press, 1988), pp. 271–313, here p. 296.

11.

Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (New York: Oxford University Press, 1993), p. 18.

12.

On the adjudication of rape in the first half of the nineteenth century, see Elizabeth Kolsky, ‘Rape on Trial in Early Colonial India, 1805–1857’, Journal of Asian Studies 69 (2010).

13.

Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge:

Cambridge University Press, 2009), pp. 108–41.

14.

Sir Matthew Hale, Historia Placitorum Coronae. The History of the Pleas of the Crown , 2 vols (London:

Sollom Emlyn, 1736–39).

15.

Hale, Historia Placitorum Coronae , vol. 1, p. 627.

16.

Hale, Historia Placitorum Coronae , vol. 1, p. 634.

17.

Laurie Edelstein, ‘An Accusation Easily to be Made? Rape and Malicious Prosecution in Eighteenth- Century England’, American Journal of Legal History 42 (1998), pp. 351–90.

18.

Susan Estrich, ‘Rape’, Yale Law Journal 95 (1986), pp. 1087–184.

19.

Anna Clark, Women’s Silence, Men’s Violence: Sexual Assault in England, 1770–1845 (London: Pandora, 1987), p. 47.

20.

Martin Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004), p. 78.

21.

It is difficult to compare rates of conviction in England and India statistically because the available source material is incomparable. English legal historians, such as Clark and Wiener, rely on records of courts with original jurisdiction whereas the historian of colonial India has only appeals level decisions to use.

22.

Roger Smith and Brian Wynne (eds), Expert Evidence: Interpreting Science in the Law (New York:

Routledge, 1989).

23.

Michael Clark and Catherine Crawford (eds), Legal Medicine in History (Cambridge: Cambridge Univer- sity Press, 1994); Catherine Crawford, ‘The Emergence of English Forensic Medicine: Medical Evidence in Common-Law Courts, 1730–1830’ (unpublished doctoral thesis, University of Oxford, 1987).

24.

Susan Edwards, Female Sexuality and the Law (Oxford: Martin Robinson, 1981), p. 126.

25.

Wendie Schneider, ‘“Enfeebling the Arm of Justice”: Perjury and Colonial Administration under the East India Company’, in Marcus Dirk Dubber and Lindsay Farmer (eds), Modern Histories of Crime and Punishment (Stanford: Stanford University Press, 2007), pp. 299–327.

26.

Syed Ameer Ali and John George Woodroffe, Law of Evidence Applicable to British India (Calcutta:

Thacker, Spink, 1898), p. 26.

27.

Norman Chevers, A Manual of Medical Jurisprudence for Bengal and North-Western Provinces (Calcutta:

F. Carbery, 1856), p. iv.

28.

Chevers, Manual of Medical Jurisprudence , p. 5.

29.

Chevers, Manual of Medical Jurisprudence , p. 8.

30.

On ethnography as a form of colonial knowledge, see Dirks, Castes of Mind , 2001), pp. 43–60. See also Bernard Cohn, Colonialism and its Forms of Knowledge: The British in India (Princeton: Princeton University Press, 1996).

31.

Chevers, Manual of Medical Jurisprudence , p. 1.

32.

Chevers, Manual of Medical Jurisprudence , p. 6.

33.

Chevers, Manual of Medical Jurisprudence , p. 8.

34.

Chevers, Manual of Medical Jurisprudence , p. 8.

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35.

Norman Chevers, ‘Report on Medical Jurisprudence in the Bengal Presidency’, Indian Annals of Medical Science 3 (1854), pp. 243–426, here p. 257.

36.

Chevers, ‘Report on Medical Jurisprudence’, pp. 385–92.

37.

Chevers, ‘Report on Medical Jurisprudence’, p. 385.

38.

In contrast, research on the role of medical evidence in US rape trials suggests that in the mid-nineteenth century, appellate courts began to exclude medical testimony about when a woman could be raped. Stephen Robertson, ‘Signs, Marks and Private Parts: Doctors, Legal Discourses, and Evidence of Rape in the United States, 1823–1930’, Journal of the History of Sexuality 8 (1998), pp. 345–88.

39.

James Dunning Baker Gribble, Outlines of Medical Jurisprudence for India (1885; 3rd edn, Madras:

Higginbotham, 1892), pp. 239–42.

40.

James Dunning Baker Gribble, Outlines of Medical Jurisprudence for Indian Criminal Courts (Madras:

Higginbotham, 1885), p. 238.

41.

Isidore B. Lyon, Lyon’s Medical Jurisprudence for India with Illustrative Cases (1888; 10th edn, 1888, repr. Calcutta: Thacker, Spink, 1953), p. 3.

42.

Lyon, Lyon’s Medical Jurisprudence , p. 442.

43.

Lyon, Lyon’s Medical Jurisprudence , p. 442.

44.

Lyon, Lyon’s Medical Jurisprudence , p. 444.

45.

Major Collis Barry, Legal Medicine (In India) and Toxicology , 2 vols (Bombay: Thacker, 1902), chs 9,

10.

46.

See Barry, Legal Medicine (in India), ch. 10.

47.

Wiener observes that well into the nineteenth century, ‘women over the age of twelve received from the law little protection against sexual assault’. Wiener, Men of Blood , p. 82.

48.

H.

W. V. Cox, Medico-Legal Court Companion (Calcutta: Eastern Law House, 1927), p. 124.

49.

Alfred Swaine Taylor, Taylor’s Principles and Practice of Medical Jurisprudence, 2 vols (1836; 9th edn,

ed. Sydney Smith, London: J. & A. Churchill, 1934), vol. 2, p. 98.

50.

Jaising Prabhudas Modi, Modi’s Medical Jurisprudence and Toxicology (1920; 21st edn, ed. C. A. Franklin, Bombay: Tripathi, 1996), p. 337. See also P. N. Ramaswami, Magisterial and Police Guide (Mylapore:

Madras Law Journal Office, 1931).

51.

C.

B. Singh, Preface to Modi’s Medical Jurisprudence and Toxicology, n.p .

52.

Modi, Modi’s Medical Jurisprudence and Toxicology , pp. 443–4.

53.

The Indian High Courts Act (1861) authorised the creation of the high court system. India’s first high court was established in Calcutta in 1862. See Mahabir Prashad Jain, Outlines of Indian Legal History (1952; 5th edn, Bombay: Tripathi, 1990), pp. 276–316.

54.

James Anthony Sharpe, Crime in Early Modern England, 1550–1750 (London: Addison Wesley Longman, 1999), p. 61.

55.

Maung Ba Tin v. Emperor (1926), 27 Criminal Law Journal (CrLJ) Reports 1284.

56.

Kanshi Ram v. Emperor, All India Reporter (AIR) 1924 Lahore 75.

57.

Nanak v. Emperor (1924), 1 All India Criminal Reports (AICR) 131.

58.

Maung Ba Tin v. Emperor (1926), 27 CrLJ 1284.

59.

Hari[pras ada]¯ Singh Gour, The Penal Law of India, Being a Commentary, Analytical, Critical and Expos- itory, on the Indian Penal Code (Act XLV of 1860 as amended to date) (Calcutta: Thacker, Spink, 1909),

p.

1853.

60.

See Tanika Sarkar, ‘A Prehistory of Rights: The Age of Consent Debate in Colonial Bengal’, Feminist Studies 26 (2000), pp. 601–22. Though focusing on a different context, Pamela Haag also argues that the liberal notion of consent is a recent one. Pamela Haag, Consent: Sexual Rights and the Transformation of American Liberalism (Ithaca: Cornell University Press, 1999).

61.

A chief court was similar to a high court in its jurisdiction and power.

62.

King v. Patha Kala (1904), 1 CrLJ 900.

63.

I borrow this phrase from Susan Estrich, Real Rape (Cambridge: Harvard University Press, 1988).

64.

Emperor v. Prabhatsang (1907), 5 CrLJ 465.

65.

Emperor v. Prabhatsang (1907), 5 CrLJ 465.

66.

Wiener, Men of Blood , p. 93.

67.

Modi, Modi’s Medical Jurisprudence , pp. 337–9.

68.

Musummat Chapa Pasin v. Emperor (1928), 25 CrLJ 325.

69.

Labh Singh v. Emperor (1923), 24 CrLJ 877.

70.

Bishnath Prasad v. Emperor (1947), 48 CrLJ 542. See also Bisram v. Emperor (1945), where the Nagpur High Court explicitly determined that ‘the position is very different where a woman makes an accusation of rape and where a child says that a particular person is a culprit’, 46 CrLJ 371.

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71.

Amir-ud-Din v. Emperor (1924), 25 CrLJ 1200.

72.

Sultan v. Emperor (1926), 27 CrLJ 1488.

73.

Emperor v. Panna Lal (1924), 25 CrLJ 981.

74.

Emperor v. Panna Lal (1924), 25 CrLJ 981.

75.

Anna Clark notes that nineteenth-century English criminal courts punished the rape of children more consistently and more severely. Clark, Women’s Silence, Men’s Violence , p. 48.

76.

Local Government v. Pearelal (1919), 20 CrLJ 647. See also Ibrahim v. Emperor (1927). The Lahore High Court held that ‘where in the case of rape it is found that the girl is of unchaste character, a very severe sentence is not called for’, 28 CrLJ 256.

77.

Soosalal Bania v. Emperor (1924), 25 CrLJ 1214.

78.

Bisram v. Emperor (1945), 46 CrLJ 371.

79.

Nga San Pu v. Emperor (1918), 19 CrLJ 155.

80.

Queen Empress v. Sitanath Mandal (1895), Indian Law Reports (ILR) 22 Calcutta 1006.

81.

Robert Harvey, Report on the Medico-Legal Returns, Received from the Civil Surgeons in the Bengal Presidency during the Years 1870, 1871, and 1872 (Calcutta: Calcutta Central Press, 1876).

82.

Arthur Powell, ‘Medical Examination in Cases of Rape’, Indian Medical Gazette 37 (1902), pp. 230–34. In England, the unyielding emphasis on evidence of physical injury had begun to decline a century earlier. Wiener, Men of Blood , p. 83.

83.

Gour, Penal Law of India, p. 1853.

84.

Empress v. Shankar (1881), ILR 5 Bombay 403.

85.

7 Carrington & Payne’s Reports 318.

86.

Empress v. Shankar (1881), ILR 5 Bombay 403.

87.

Gour, Penal Law of India, p. 1845.

88.

Gour, Penal Law of India, p. 1847.

89.

Abdul Rahman v. Emperor (1916), 11 CrLJ 150.

90.

Estrich, ‘Rape’, p. 1090.

91.

Amar Singh v. Emperor (1935), 36 CrLJ.

92.

Baji v. Emperor (1933), AICR 156.

93.

Mahla Ram v. Emperor (1924), 25 CrLJ 74.

94.

Gour, Penal Law of India, p. 1853.

95.

Estrich, ‘Rape’, pp. 1105–6.

96.

Ghulam Hussain v. Emperor , AIR 1930 Lahore 337.

97.

Jalal v. Emperor (1930), 31 CrLJ 784.

98.

Ram Kala v. Emperor (1946), 47 CrLJ 611.

99.

Surendra Nath Das v. Emperor (1934), 35 CrLJ 508. See also Conroy v. Emperor, AIR 1944 Nagpur 245. For a similar ruling in the Bombay High Court, see Emperor v. Mahadeo Tatya (1942), 43 CrLJ 621.

100.

Emperor v. Mahadeo Tatya (1942), 43 CrLJ 621.

101.

‘Evidence of Prosecution in Cases of Sexual Offence’, Calcutta Weekly Notes 44 (1940), p. 117.

102.

Cohn, Colonialism and its Forms of Knowledge , pp. 57–75.

103.

Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: Univer- sity of Michigan Press, 2003).

104.

See Flavia Agnes, ‘Women’s Rights and Legislative Reforms: An Overview’, International Journal of Legal Information 36 (2008), pp. 265–70.

105.

Y.

H. Rao, Expert Evidence (Medical and Non-Medical) (Agra: Criminal Law Publications, 1955).

106.

Dalaut Ram Prem, Law and Methods of Police Investigation and Criminal Prosecutions (1947; 2nd edn, Dalaut Ram Prem and Jagdish Prem, New Delhi: Arora Law House, 1963).

107.

Agnes, ‘Women’s Rights and Legislative Reforms’, p. 267.

108.

Pratiksha Baxi, ‘The Medicalisation of Consent and Falsity: The Figure of the Habituee´ in Indian Rape Law’, in Kalpana Kannabiran (ed.), The Violence of Normal Times: Essays on Women’s Lived Realities (New Delhi: Women Unlimited, 2005), pp. 266–311.

109.

Tukaram v. State of Maharashtra, AIR 1979 Supreme Court 185.

110.

‘Crime in India – 2006’, Ministry of Home Affairs, National Crime Records Bureau, < http://ncrb.nic.in/ CII2006/home.htm > (accessed 21 November 2009).

111.

Indian Express , 9 December 2008.

112.

Chandan Mukherjee, Preet Rustagi and N. Krishnaji, ‘Crimes against Women in India: Analysis of Official Statistics’, Economic and Political Weekly 36 (27 October 2001), pp. 4070–80.

113.

Times of India, 11 July 2000. On the escalation of violence against women in India since the 1990s, see

T. K. Rajalakshmi, ‘Woman as Victim’, Frontline , 4 January 2008.

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114. Flavia Agnes, ‘Protecting Women against Violence? Review of a Decade of Legislation, 1980–89’, Economic and Political Weekly 27 (1992), WS 19–33. See also Flavia Agnes, ‘Fighting Rape – Has Amending the Law Helped?’, The Lawyers, February 1990, pp. 4–11; Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India (New Delhi: Sage, 1996).

115. Manhoob Hussain v. State , Pakistan Legal Decisions (PLD) 1988 Federal Shariat Court (FSC) 3.

116. See Julie Dror Chadbourne, ‘Never Wear your Shoes after Midnight: Legal Trends under the Pakistan Zina Ordinance’, Wisconsin International Law Journal 17 (1999), pp. 179–280; Human Rights Watch, Crime or Custom? Violence against Women in Pakistan (New York: Human Rights Watch, 1999).

117. Chadbourne, ‘Never Wear your Shoes after Midnight’, p. 179.

118. Hina Jilani and Eman M. Ahmed, ‘Violence against Women: The Legal System and Institutional Responses in Pakistan’, in Savitri Goonesekere (ed.), Violence, Law and Women’s Rights in South Asia (New Delhi:

Sage, 2004), pp. 148–206; Asifa Quraishi, ‘Her Honor: An Islamic Critique of the Rape Laws of Pakistan From a Woman-Sensitive Perspective’, Michigan Journal of International Law 18 (1997), pp. 287–320.

119. Ubaidullah v. State , PLD 1983 FSC 117.

120. Bahadur Shah v. State , PLD 1987 FSC 11.

121. Human Rights Watch, Crime or Custom? Violence against Women in Pakistan, p. 105.

122. Protection of Women (Criminal Laws Amendment) Act, 2006.

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