Introduction

In the preceding two chapters of this book, I argued that through its rape law jurisprudence the Supreme Court of India constructed stereotypes of rape victims and used such stereotypes to adjudicate rape cases. My empirical study showed how stereotyping impacts the sentencing phase of the trial and is one of the factors leading to unwarranted disparity in sentencing. Before proposing a solution to reduce unwarranted sentencing disparity in India, caused by stereotypes and rape myths, it is essential to understand the causes of stereotypes and rape myths, and discuss the manner in which other jurisdictions have sought to reduce their effects in rape prosecutions. That is the objective of this short chapter, which is divided into three sections. Firstly, I identify rape myths and discuss the origins of the most pervasive myths, as well as the influence that they have on rape adjudication. Secondly, I examine the changes in both substantive and procedural laws that have been made in recent decades in the United States and in the United Kingdom in an effort to minimize the impact of these myths on rape adjudication. Thirdly, I focus on the influence that rape myths have had on sentencing in particular, discussing studies on this issue.

Rape Myths and Stereotypes: Laws and Impact on Rape Adjudication

Identifying rape myths

Rape myths are ‘prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists’. These myths can be descriptive, where, for instance, they describe how a typical woman would react to rape. However, in most cases, they end up being prescriptive; for instance, where they mandate how a woman ought to react to rape. The prescriptive nature of rape myths was evident in two contexts in certain major cases discussed in this book. First, in several decisions – such as Bharwada, Kamalanantha, and Rafiq – the Supreme Court of India noted how a typical rape victim would behave. The second context in which rape myths were used prescriptively is in textbooks of medical jurisprudence. As I noted earlier, these textbooks assert that non-consensual intercourse necessarily leads to genital injuries and marks of struggle on a woman's body. In assessing whether penetration occurred or not, they recommend noting the state of the woman's hymen and the elasticity of her vagina, which according to these books are indicators of a woman's sexual history.