Rape as a Hate Crime

By Vedangini Bisht

Some researchers prefer to call hate crime a misnomer. Because going solely by the literal meaning of the term, it would refer to a crime which is motivated by hate, when actually there is not hate, but prejudice involved, although there is no saying that there cannot be an overlap in them. It is generally used to draw a distinction between crimes arising out of hate and criminal conduct that is motivated by lust, jealousy, politics, greed etc., as said by Paul Iganski. Hate crime lays emphasis on the attitude and values of the offenders, which determine his or her character. The belief of the special hate crime laws lobbyists is that it is prejudice which is worse than any other criminal motivation.

What is asserted here is the fact that adding a label of hate crime to the cases of rape can help challenge the several existing myths that circumscribe rape and let the society know that the cause of rape is not that the woman had asked for it or that she deserved it, but her gender. A lot of research is suggestive of the fact that increasing the criminal sanctions has very little direct benefit in thwarting the incidents of rapes. It is rather for the long-term creation of norms that this is being asked for. A significant role played by it can also be in molding the social boundaries by policing what is called an acceptable behaviour. Carney and Kathryn M. in Rape: The paradigmatic hate crime, argue that it can be empowering in the sense that it shifts the blame from the victim to their offender and helps in validating the experiences of the former. This can help in getting more women to report rape, by giving them incremental assurance that they would be taken seriously both by the practitioners of criminal justice and the community.

Throughout our lives, we find that it is the women who are perceived to be the potential rape victims. To simply use the word ‘rape’ is to take lessons in the power relations that exist between the females and the males. The message makes itself clear. Rape has something to do with our gender. Rape is something experienced only by females, it is the dark at the top of the stairs, the undefinable chasm in the corner, and unless we take care of each and every path that we tread on, it might be a part of our destiny.

Many a times, rapists operate within an institutionalized setting that works to their advantage and where the victim has little chance to redress her grievances. Most of the times, it just boils down to the kind of relation hierarchy that exists between the victim and the oppressor. This is the reason that the perpetrator seeks refuge within the institutions that hold him under its aegis, a kind of institution which is perpetual in the kind of society that we live in.That is why it becomes important to remedy the institution.

How does one define if a particular crime is a hate crime or not? In India, the most prominent piece of legislature that concerns hate crime is the SC/ST (Prevention of atrocities) Act, 1988. It establishes that a particular crime was perpetrated against the victim because of his/her association with the latter to a backward community. The rape law under Section 375 of the IPC perhaps takes this into account conceptually in the sense that the rape laws in India have provisions only against men. Thus, gender binaries clearly exist. In India, there is no such legislative policy or judicial precedent that might establish rape as a hate crime. However, by the way of obiter in many a case, it can be proved that the judiciary has stated that rape entails hate, such as the case of Dinubhai Boghabhai Solanki v State of Gujarat and Ors and Sri Mithu Kalita alias Mitu Kalita vs. State of Assam.

The major objective towards criminalizing hate crimes is to protect those set of people who have faced historically disproportionate levels of abuse in a targeted way. The purpose of the law is not only used to recognise the enhanced degree of harm that is caused by such incidents but also to express denunciation by the state.

Hate crime is associated with a symbolic nature which means that people who associate themselves with the victim’s group, are also instilled with the fear that they might also be targeted. This has been called the ‘in terrorem effect’ by Barbara Perry and Shahid Alvi as the incidents do not tend to terrorise in isolation. Targeted victimisation has a profound spreading of fear which might not always be very visible on the surface. It could be as subtle as the minority group changing the way they would act so that they can fit in, thus avoiding victimization. For some other people, it can include avoiding particular locations or even being at home at times when they feel they are at the greatest risk. In fact, rape has been compared to lynching in America by Susan Brownmiller since it is ultimately a threat to your physical being, with the help of which all the men try to keep all the women in a condition marked by fear.

A research in USA concluded that the victims of a homophobic hate crimes are likely to have experiences of stretched periods of fear and depression beyond what might be experienced by the victims of a similar crime which has been motivated by non-hate factors. The reason that can be asserted for this is that the victims of hate crime recognize that they have been attacked due to their individuality. Thus, keeping the same assertion in the context of rape as well, there is a generation of fear in all the members of that particular group. It is taken as a symbolic message to the victim as well others like her. It is an expression of disdain for the identity of the victim and anyone who recognizes with such an identity, feel themselves attacked. Victims of hate crime will always know that they had been attacked because of their physical appearance, what they believed in or who they were sexually attracted towards. This leads to the undermining of the victim’s social worth within the community.

Women have been told for years to dress up in a particular way; to return home at a particular time. The reasons why people impose this on the women is because they recognize that the perpetrators need not have any special enmity or tussle with the women in order to make him attack her. It all just boils down to the gender. This is also the reason why rape laws are being amended because rather than making it solely retributive for the convict, there is regard to be paid how the fellow people who identify themselves as part of the same community, in this case women, feel safe as a community.

Another distinguishable feature of hate crimes is the inter-changeable nature of victims. Since hate crimes are crimes which emerge out of prejudice, the victims are not chosen because they are unique in themselves. The victims get chosen because they belong to a particular group, depending on their race or religion, which connotes the fact that the victims are interchangeable with any other.

One of the main reasons why rape and other form of gendered violence have fallen out of the paradigm of hate crimes is that most of the times, the victims and the perpetrators are known to each other. According to the National Crime Records Bureau (NCRB) 2013 annual report, 24,923 rape cases were reported across India in 2012.Out of these, 24,470 were committed by someone known to the victim (98% of the cases). The minor fact that the victim and the perpetrator were known to each other does not obviate the important fact that the incident was an identity-based crime. What is central to this entire debate on hate crime is the hostility of the perpetrator towards the victim due to its identity. Recent research shows the inter-personal relation that develops prior to the hate incident- particularly, faux and close relationships are formed prior to the disablist crime of hate which has led to some terming the victimization as mate crime.

The patriarchal nature of the society that we live in has led to dilution in the importance that ought to be attached with the gender-based hate crimes. The dichotomy that has come out establishes that one does and the other is done to. This belief is more than mere arrogant insensitivity, it is actually a strong belief in the supreme male power. This adds more to the reason for terming it a hate crime.

[The author is a third year law student at National Law University Delhi. Her interests lie in Human Rights, International law and IPR. She wishes to venture more in the field of Human rights and feminism and write for the same.]