On May 2, while the country was under lockdown, reports of yet another incident of sexual harassment and rape made headlines. This time, the case pertained to leaked screenshots of an Instagram group called ‘bois locker-room’. The chats revealed that a few schoolboys had circulated photos of underage girls and women followed by lewd comments on them.
It was reported that the Delhi Police arrested an 18-year-old, the admin of the Instagram group. The boy appeared for his class 12 examination this year. The Delhi Commission for Women has taken suo-motu cognizance of the incident.
While the incident has highlighted a prevailing rape culture in the country, the issue is stuck at moral discourse. An inadvertent byproduct of the discourse is a legal question – should deviant sexual fantasies be criminalised?
The incident as well as the ongoing discussion is a subtle reflection of a similarly placed Judgment of the United States Court of Appeals titled United States of America v. Gilberto Valle. The judgment dealt with the conundrum of whether the court should penalise a person for holding deviant sexual fantasies, posing a considerable threat to women in general and society at large.
The Appellant-accused, Gilberto Valle had sexual fantasies about kidnapping, raping and killing women, and then eating them. For the same reason, Valle would frequently visit the dark fetish network (DFN) where he would share images of women, including his wife, whom he wanted to rape and eat. One day his wife got to know about her husband's gruesome fantasies and she informed the federal authorities. Valle was arrested and charged with the conspiracy to kidnap several women, who were subject of his chats.
The jury convicted him, following which the decision was overturned by the sitting Judge. In his 118-page detailed opinion, the judge held the prosecution could not establish a case beyond reasonable doubt and acquitted him. The State filed an appeal, which later upheld the judgment of acquittal given by the lower court. The judgment stated there was no evidence to distinguish between fantasy and reality. Finally, it was held that the gruesome chats between the accused and other users of DFN did not show any real intent. The Court in its judgment noted:
“Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.
This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law.”
The Court’s decision has been a matter of various debates since then. The idea behind the judgment was rather basic – you can’t punish thought. George Orwell in his novel 1984 has already shown us why ‘thought-crimes’ can be problematic. The case of “Bois locker room” was different with respect to the gravity of the content but was nevertheless an act committed to objectify and demean women. As stated by many, the instance depicts the growing rape culture in the country.
In the present case, a crime has been committed. Male students shared pictures of underage girls without consent, objectified, slut-shamed them and fantasized raping them. The Indian laws penalise these actions. These are covered under Section 354C, 354D and 509 of the Indian Penal Code (IPC) amongst other sections of the Information Technology Act. This brings us to a pressing issue -– will retributive justice help us challenge an already existing misogynistic culture which breeds rape and normalizes violence against women? Or do we need a rehabilitative approach?
The retributive theory of law is backward-looking. It looks only at the crime and surrounding circumstances. The theory is deep-rooted in the belief that a crime carries with itself a moral blameworthiness and the punishment should be equivalent to the moral deficit arising out of the act committed.
Indian laws penalise the act of moral deficit, making it retributive in nature. The punishment, if found guilty, would be imprisonment for up to three years in cases of Sections 354C & 354D IPC. After the Nirbhaya case, the legislature amended and promulgated various laws (such as rape laws and the juvenile justice act) and brought in stringent provisions with the belief that a higher punishment would act as a deterrent against the possible perpetrators. If one looks at the NCRB data, the efforts have barely made a dent in crimes let alone the societal thinking.
On the other hand, there is a strong case of rehabilitative approach – where offenders such as the one in ‘bois locker room’ are given options such as counselling. There exists a strong need for bringing the offenders a sense of accountability. In addition, there is an urgent need to sensitize them towards other genders as well inform them about their deviant behavior. They need to be taught not just what they did was wrong, but why it was wrong. By bringing criminal charges, the State will be throwing the offenders in the bottomless pit of criminal justice where they will be treated as hardened criminals. In addition, the root cause of the problem –- which is the normalised rape culture will never be addressed.
The situation also calls for educational reforms. An average student spends one-fourth of their day in school. This rather significant institution has done little to tackle the epidemic of rape culture/slut-shaming/harassment etc. Almost eight years since Nirbhaya, and two months since the culprits were executed, there seems to be no curriculum to teach boys the basics of co-existence with other genders. In 2019, the Delhi government introduced gender sensitisation curriculum wherein the boys from all government schools were asked to take a “pledge” to respect women. While this was a starting point, the efforts boil down to mere poster campaigns, with no active participation from educational institutions.
Clearly, a case of retribution has been ineffective. The deep-rooted problem will find its solution in rehabilitation as well as education sector, not in jails. Sending the offenders to jail might seem the right decision on immediate thought, but it will not solve the underlying problem. We need to remember that the "bois locker room" incident is a symptom of a disease in our society, and not the root of it. Addressing the symptoms and not the core cannot bring about any change.
(Shivkrit Rai is a Law Researcher working in the Delhi High Court. Nipun Arora is a lawyer working in Delhi High Court and Trial Courts. Views expressed are personal.)
