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From Scotland to India: Deceptive Sex, Autonomy, and the Expansion of Carceral Power
Preeti Pratishruti Dash*
Introduction
The relationship between sexual autonomy, deception, and criminal law presents enduring challenges across legal systems and historical periods. Contemporary legal scholarship across most liberal democracies increasingly emphasizes individual autonomy and consent as foundational to sexual ethics and criminal law. Drawing on Chloë Kennedy’s historical examination of sexual deception in Scotland and England, in this piece, I explore how similar dynamics operate in contemporary India.[1] I specifically examine issues of deceptive sex that emerge in contemporary rape law adjudication in India, such as breach of promise to marry cases and sexual intercourse by suppressing identity. Kennedy’s work provides a twenty-five-decade historical analysis of how Scotland and England responded legally to deceptively induced intimacy, spanning the mid-eighteenth century to the present. Drawing on this analysis, I demonstrate through this paper that the frameworks proposed by Kennedy for Scottish criminal law are equally applicable to contemporary Indian cases, despite significant contextual differences.
My analysis emerges from analysis of existing scholarship on rape law enforcement in India as well as my own ethnographic research in the district-level trial court of Bhubaneswar, the capital of the state of Odisha in eastern India. Notably, the issues discussed in this piece reflect the reality of Indian society, which is highly stratified by caste and religion, and where a right-wing government has been in power at the union level for more than a decade. Further, issues of sexuality and women’s behavior are increasingly co-opted by the authoritarian state to police marginalized communities, revealing parallels with racial disciplining in the Jim Crow era USA.[2] Kennedy’s methodology, weaving doctrinal, archival, and historical issues across a vast period whilst maintaining a clear analytical thread, offers a valuable framework for understanding these contemporary dynamics. She examines her sources in great detail without losing sight of a broader perspective. This approach proves particularly useful for me when considering how similar legal problems manifest across the radically different socio-cultural and historical context of contemporary India.
In the first section, I establish the empirical foundation of my argument by analyzing the perverse enforcement of rape laws in India through breach of promise to marry cases adjudicated in Indian courts. I explain the mechanisms through which these cases unfold, and the particular ways in which autonomy claims become entangled with criminal prosecution. In the next section, I interrogate the role of progressive actors in enabling this framework. After tracing the history of feminist advocacy towards rape law reform in India, I underscore the downsides of the strategic choice to center autonomy through criminal laws. I argue that such a move rested on assumptions about legal enforcement that rarely materialize in practice, highlighting the gap between progressive intentions and the realities of how criminal law institutions function.
In the third section, I advance a dual critique of criminal law as a site for feminist reform. First, taking the case of criminalization of deceptive sex under the Bharatiya Nyaya Sanhita, 2023, I show how conservative governance reshapes and constrains the very concept of autonomy that progressive actors sought to protect. I argue that this renders the state an unreliable ally and also makes criminal law especially insidious as a reform tool. Second, I engage with the alternatives to the autonomy framework provided by Kennedy and draw parallels with how they hold significance in contemporary India. I focus especially on Kennedy’s distinction between authenticity and autonomy, as well as her reframing of structural legal responses. Such comparisons open the space for more nuanced approaches to sexual agency and deception, beyond the rigid boundaries of autonomy-centered criminal law. I conclude by emphasizing the importance of charting a path forward that secures control with the victims of sexual harm and addresses intimate harms without expanding the punitive state apparatus.
I. Parallels Between Historical Scotland and Contemporary India: Centrality of Marriage/Breach of Promise to Marry
Kennedy’s analysis of Scotland (primarily) and England from the mid-eighteenth century through the twentieth century reveals a legal landscape where the “right kind” of sex was confined to marriage.[3] On the other hand, the “wrong kind” of sex could be corrected through marriage, monetary compensation in breach of promise to marry or seduction cases, or nullity proceedings.[4] This framework positioned marriage as both the proper context for sexual relations and the remedy for sexual wrongs. In this section, I discuss parallels between rape law adjudication in contemporary India and the historical interconnectedness between marriage and sexuality in Scotland as shown by Kennedy. Drawing from my own ethnographic research across trial courts in Odisha, India as well as secondary literature, I show how breach of promise to marry cases form a major category of rape cases being adjudicated in India. This reveals and reinforces the idea of marriage as the only legitimate site of sexual relationships. Further, based on findings from my ethnographic research, I argue that autonomy-centered criminal laws of rape do little to redress the grievances of women who bring such cases to the legal system.
Rape-law adjudication in contemporary India exhibits striking overlaps with this historical legal landscape in Scotland, despite the absence of formal seduction or compensation laws. Research on contemporary rape law enforcement in India, also reflected in my courtroom ethnography conducted in Odisha, reveals the prevalence of “breach of promise to marry” cases, where women file charges of rape against their partners.[5] In such cases, the women claim in their criminal complaint that they gave consent for sexual intercourse on the basis of a (false) promise that the man would marry them. Subsequently, when the promise of marriage was broken, the woman filed a complaint of rape, alleging that the consent was obtained by misrepresentation or fraud, and thus, the sexual relationship was not consensual at all.
Breach of promise to marry cases routinely feature in conversations around rape cases in India, and are often critiqued by feminist scholars as legitimizing marriage as the only site for sexual expression.[6] Such cases comprise over one-third of rape cases routinely adjudicated by trial courts across India.[7] In a society which values the virginity of women before marriage, a man’s refusal to marry a woman after having sex with her would carry a very high cost, as she would be rendered “unsuitable” for marriage by the conservative patriarchal society that she is part of.[8] The criminal law of rape, therefore, becomes a tool for women who feel that their partners have taken advantage of them by first trapping them into having sex and then refusing to marry them.
Breach of promise to marry cases, thus, reinforce the societal premium placed on virginity and chastity before marriage, wherein a woman will be stigmatized for pre-marital sex. To explain, if a man has sex with a woman and refuses to marry her, it can ruin her chances of getting married to anyone else. While these cases are routinely dismissed in media as instances of women filing “false” cases of rape, in my ethnographic research in Odisha, I similarly found additional dynamics around caste layered into the typical pattern involving a couple in a consensual sexual and romantic relationship, where the man subsequently refuses to marry the woman. The refusal to marry often stemmed from caste or religious differences, as family opposition to inter-caste or inter-faith marriage remains pervasive in Indian society.[9] The woman would then file a criminal complaint alleging rape on the basis that the sexual relationship was obtained through a false promise of marriage. In some instances, the women outrightly refused any consensual sexual activity, and alleged instead that her partner/boyfriend, gave her something to eat/drink that made her unconscious, and later he raped her.
Following the formal registration of the complaint, the man is almost immediately arrested, and bail is extremely difficult to obtain in such cases. This immediate incarceration, rather than facilitating any marriage, further erodes the possibility of such a marriage. The vast majority of these cases end in informal compromise, despite being legally non-compoundable.[10] Families intervene, persuading the woman to turn hostile in court, i.e., to refuse to support the case of the prosecution and testify against the accused or to change her testimony, in exchange for the promise of marriage. Stakeholders throughout the system, including prosecutors, defense lawyers, and even judges, are aware of this dynamic and often informally support it.
I found through my research in Odisha that these cases are charged not as rape simpliciter, but as aggravated rape under Indian law. The institutional justification for such a charge is that it involves repeated rape on the same woman, which is usually a given in cases where the man and the woman have been in a long-term romantic and sexual relationship. The provision for aggravated rape carries several significant features, such as enhanced punishment compared to rape simpliciter, reversal of the burden of proof, and greater procedural barriers to bail.[11] The legal classification as aggravated rape transforms these cases into a more serious criminal matter with severe consequences and longer pre-trial and under-trial incarceration.
Through interviews with judges, prosecutors, and defense lawyers, I found that they easily dismissed these cases as “false charges of rape” intended merely to extract money or exact revenge. However, through conversations with the victims in such cases, I found that in a system that affords women very little bargaining power in intimate relationships, filing a criminal complaint becomes one of the few available avenues for seeking redress. Prabha Kotiswaran notes that such cases need not be seen as a misuse of the legal process, but as women attempting to negotiate and bargain within a system that grants them little respect.[12]
Yet criminal law rarely delivers what women hope for, and the outcomes often leave them worse off than before. As explained above, isolated and stigmatized by their partner’s refusal to marry after having sex, the women, and sometimes their families, negotiate with partners (the accused) and turn hostile in court once their partners agree to marriage. However, in my research, I found that the accused often do not marry the complainant after their acquittal following her hostile testimony. The reasons vary, ranging from the lack of a job and financial resources to support a family, to the same, pre-existing familial opposition on grounds of caste or religion. Despite the women expending considerable time, money, and emotional labor, they ultimately gain little either socially or legally. Reconciliation is especially difficult in such cases given the reality of incarceration and the breakdown of interpersonal relationships over the prosecution. The promise of marriage, offered in exchange for hostile testimony, evaporates once again when the legal threat of incarceration is removed.
What emerges, then, is a system that mirrors the historical pattern Kennedy identifies: intimate wrongs being channeled through criminal law, with marriage positioned, either implicitly or explicitly, as remedy. But unlike historical seduction laws that at least occasionally resulted in marriage or compensation,[13] the contemporary Indian legal system routinely produces outcomes that benefit no one. Women do not obtain marriage, compensation, or vindication. Men are incarcerated, often for extended periods whilst awaiting trial, and emerge with criminal records, even if ultimately acquitted. Yet the system perpetuates itself because women have few other avenues for asserting any claim when promises are broken.
These cases exemplify how laws centering sexual autonomy fail to bring about large-scale shifts in social or institutional cultures, especially in a conservative setting such as India. The ubiquity of breach of promise to marry cases within rape law adjudication demonstrates how women’s sexuality continues to be coded in patriarchal, conservative terms, despite the legal statute itself proclaiming otherwise. In the next section, I interrogate the role of progressive actors, especially feminist activists, who were deeply involved in the process of enacting rape law reforms.
II. “Right-ing” Intimate Wrongs Through Criminal Law: Critically Analyzing the Role of Progressive Stakeholders in Criminal Law Reform
The prevalence of breach of promise to marry cases in India stems from a fundamental disjunct between legal rules and social norms. While Indian society on the one hand remains steeped in traditional, caste-based marriage norms, the liberal-feminist aspirations for reforming the law of rape and sexuality aspire to de-center marriage from sexual relationships.
In this section, I explain how contemporary rape laws in India, a product of decades of liberal-feminist activism, have come to exemplify this disjunct. I critically analyze the role of progressive actors in bringing about legal reform, focusing here on the Indian Women’s Movement (IWM) and their decades-long campaign to reform rape laws. Through this analysis, I demonstrate how the changes to Indian rape laws, embodying progressive ideals of sexual autonomy, but embedded in a deeply conservative society, rarely provide meaningful outcomes for victims of sexual violence. I also discuss here the marital rape exception to Indian rape laws, which reveals how sex within marriage continues to be understood by the Indian legal system and society as “sacrosanct” and “legitimate.” This exception further underscores the disjunct between liberal-feminist aspirations of rape laws and conservative state and societal understanding of marriage. By critically examining the role of the Indian Women’s Movement, I posit this analysis alongside Kennedy’s central argument that centering autonomy in intimate relationships has gone hand-in-hand with expanding the reach and severity of criminal law, which does not necessarily play out in the interests of victims of deceptive sex or sexual violence.
A. Indian Women’s Movement and Rape Law Reform: 1980s to 2012
The Indian Women’s Movement (IWM) has been the most significant group of feminist actors to have engaged with the state on the question of legal reform for rape.[14] Comprising politically autonomous organizations and individuals, the IWM refers to a post-colonial feminist movement in India which aspired for fundamental structural change, instead of sporadically and ambiguously demanding for women’s rights.[15] Although initially the IWM did not rely on any external funding, through the 1990s, the most common structure of a feminist organization within the IWM was that of a funded NGO.[16]
Activism around sexual violence within the IWM emerged from engagement with the state on the question of rape law reform. This engagement began in the 1970s, after the judgment of the Supreme Court in the case of Tukaram v. State of Maharashtra, which concerned the gang-rape by police officers in police custody of a 16 year old tribal girl named Mathura.[17] The Supreme Court acquitted the four policemen who were accused of the rape, observing that there was no apparent resistance by the victim, as there were no visible injuries on her body.Prominent academics and legal activists thereafter wrote an open letter to the Supreme Court of India, highlighting legal and social concerns with the judgement.[18] Simultaneously, there was an organic formation of women’s groups who campaigned for rape law reform in different cities across India, such as Saheli in New Delhi, Forum Against Oppression of Women in Mumbai, Vimochana in Bangalore, and Stree Shakti Sangathana in Hyderabad.[19]
In the years following the judgment in Tukaram, feminist activists and organizations comprising the IWM consistently attempted to engage with the state to reform the law of rape. During this time, other incidents of rape by police officers also became huge sites of controversy, such as the Rameeza Bi case in Hyderabad, where the accused officers were acquitted on the grounds that the testimony of the victim could not be believed as she was a sex worker.[20] One of the first demands of the IWM, therefore, was the recognition of rape in police custody as an “aggravated” offense, deserving higher punishment. Following intense pressure from the feminist groups, the state called upon the Law Commission of India to examine the law on sexual violence.[21] In its 84th Report on “Rape and Allied Offences” in 1980, the Law Commission recommended changes in substantive law, such as expanding the definition of rape to include sex where consent is obtained with fear of causing injury to the woman herself or to any other person, or by reason of unsoundness of mind or intoxication, as well as amending procedures for medical examination and trial processes, such as in-camera trials.[22]
Following this Report, rape law was amended through the Criminal Law Amendment Act 1983, wherein the court could presume absence of consent if the woman was of unsound mind, intoxicated or drugged, and in all cases of custodial rape.[23] A minimum punishment of 7 years’ imprisonment for rape was introduced, and the maximum could be up to life. In cases of custodial/aggravated rape, minimum punishment was 10 years of imprisonment.[24] However, leaving space for judicial discretion, the Act allowed imposition of punishments below 7 years under “special and adequate reasons.”[25] However, despite legal reforms, feminist scholars found that the conviction rate for custodial rape was very low, and punishments in convicted cases were reduced routinely on grounds of sexual immorality of the victim, referring to her as “lewd” and “lascivious.”[26]
Despite acknowledging the limiting nature of law and legal reform, feminists of the IWM continued to demand for more reform, particularly the recognition of a wide range of sexual offenses against women that were not recognized by law, such as non-consensual sexual touching, gesturing or exhibiting any body part with a sexual purpose.[27] These demands, however, went unaddressed. In 1997, a feminist advocacy group, Saakshi, filed a writ petition before the Supreme Court arguing for broadening the definition of rape to include non-peno-vaginal assault on women and children.[28] The Court, however, refused to intervene and called on the legislature to fill the gap if it felt that there was any.
Feminist groups and the state rallied back and forth for several years after this on the question of rape law reform. The state’s suggestions on reforms through the Law Commission’s Report No. 172 on a Review of Rape Laws, and the Criminal Law Amendment Bill 2010, were unacceptable to the feminist groups, which strongly objected to proposals like making the law gender neutral and retaining the provision for judicial discretion to impose less-than-minimum punishment.[29] In 2010, feminist groups drafted their own aspirational legislation, the Sexual Violence Bill, which proposed recognizing sexual violence as forming a continuum and demanded graded punishment to reflect the graded nature of harm, humiliation and degradation to women.[30] The state responded to this with the Criminal Law Amendment Bill 2012, which rechristened rape as sexual assault, included non-penile penetration, made the offense gender neutral and also expanded grounds for aggravated sexual assault. These suggestions, also, did not go down well with feminist groups, who petitioned to the government expressing their opposition to it.[31]
At the core of feminist demand for criminal law reform lay the demand to recognize rape on a graded continuum, as a range of sexual offenses perpetuated against women. This was important because experience of the feminist groups while working on sexual violence showed that women were sexually harassed, humiliated and brutalized in multiple ways, beyond what was recognized by the law. For example, while the law of rape recognized only penile penetration of the vagina, women were routinely subjected to other kinds of violation, such as the insertion of objects and weapons in their genitals or the insertion of penis into their mouths. Relevant here are the cases of Soni Sori and Thangjam Manorama, both of whom were brutally raped by armed forces of India in the states of Chhattisgarh and Manipur respectively, and were subjected to genital injury by burning and shooting.[32] Limitations of the law, however, meant that these crimes could only be prosecuted under the provision for “outraging the modesty of a woman,” which attracted a maximum punishment of only two years’ imprisonment.[33] Feminists observed that, while in all criminal offenses, injury and hurt caused by weapons is considered more grievous and deserving of greater punishment than that caused by limbs, this was not true for sexual assault as injury caused by iron rods, bottles and sticks did not even amount to rape.[34]
B. Watershed Moment: Delhi Gang-Rape in 2012 and the J.S. Verma Committee
The back and forth between feminist groups and the state changed course after the infamous Delhi gang-rape in December 2012 led the country to erupt in protests demanding reform in the laws on sexual violence. Hastily responding to the protests, the government constituted a committee under the chairmanship of former Supreme Court Judge, Justice J.S. Verma (the Verma Committee).[35] The Verma Committee began work by soliciting suggestions from the public on reforming sexual violence laws. This was a watershed moment for the IWM and other feminist groups who had been ignored by the state institutions for decades, as they got a chance to engage with them on legal reform.
Here it is important to clarify that over the years, the autonomous character of the IWM had been altered after India moved to a free-market model of governance in 1991, adopting economic principles of privatization and liberalization.[36] From a politically independent movement, the IWM changed to a funded-NGO model during this period.[37] The activism of the newly emergent NGOs in relation to rape law reform, however, drew from the experiences of the IWM and the demands remained loosely similar. Thus, feminist groups that engaged with the Verma Committee and sent written submissions largely drew from the earlier demands made by the IWM. I analyze below the continuity of these demands.
The feminist groups that engaged with the Verma Committee unanimously suggested that the definition of rape must be expanded to include non-peno-vaginal intercourse as well as forced oral sex, and also demanded the criminalization of marital rape.[38] Regarding punishment, they demanded removal of judicial discretion and introduction of a mandatory minimum punishment for rape of seven years’ imprisonment.[39] Significantly, feminist groups positioned themselves against the death penalty, arguing that this would give arbitrary and excessive powers to the state. Nonetheless, they demanded life imprisonment without the possibility of remission or parole (LWORP) for those accused of aggravated rape, i.e., rape committed in custody or by someone in a position of power or control over the victim.[40]
These suggestions of the feminist groups found a place in the Verma Committee Report, and eventually, they were also translated into law through the Criminal Law Amendment Act 2013 (CLA-2013).[41] Notably, however, the CLA-2013 rejected two key demands of feminist groups, i.e., it included the option of death penalty as a punishment for rape leading to permanent vegetative state of the woman and also retained the exception for marital rape.[42] Nevertheless, the changes ushered through the CLA-2013, and more significantly, the report of the Verma Committee, received laudatory responses among feminist groups.[43]
While the Verma Committee gave an opportunity to the feminists to express their demands, it also revealed how feminist groups were eager to shed their earlier skepticism of the state.[44] Particularly referring to the debates prior to the 1983 amendments, Kotiswaran notes that in the 1980s, the autonomous IWM groups which had earlier been affiliated with left-leaning political parties, based much of their activism on their experiences of the National Emergency in 1975, wherein Indira Gandhi, erstwhile Indian Prime Minister had suspended all constitutional protections and civil liberties for 21 months, displaying an absolutism of state power.[45] This is evident from the words of pioneering IWM leader Lotika Sarkar, who argued against a blanket presumption of lack of consent in all cases of rape, instead of the narrow focus on rape in police custody, and said, “Do you want to hand over such power to the government, just after we have come out of the Emergency? Don’t you realise that such power could be used to stifle all political dissent?”[46] Kotiswaran notes that even in-camera trials, which are now commonplace and supported by feminist activists, were then viewed with intense suspicion by feminist groups who feared that it would prevent organizing around violence against women and also impose press censorship.[47] Such opposition towards expanding the powers of the state was not seen in feminist engagement with the Verma Committee.[48] In the years following the enactment of the CLA-2013, fractures within feminist visions of rape law began to emerge, as discussed below, which reified the concerns of relying on criminal law as a site for feminist reforms.
C. The Aftermath of the J.S. Verma Committee
One of the inescapable consequences of the CLA-2013 was that the state picked up on the agenda of legal reform on violence against women, thereby turning it into a law-and-order issue centered around the protection of women. This is evident in a slate of legal reforms which followed soon after the enactment of CLA-2013. In 2018, a horrific child rape and murder case prompted widespread public outrage, leading to further enhancement of the mandatory minimum punishment for rape to ten years’ imprisonment.[49] Following this, in 2019, the Protection of Children from Sexual Offences Act 2012 (POCSO Act) was amended to allow the death penalty for aggravated penetrative sexual assault against all children under eighteen years of age.[50] Subsequently, in November 2019, the gang-rape and murder of a 26-year-old woman in Hyderabad led to a publicly celebrated extra-judicial killing of the accused persons by the state police officers.[51] This incident also spurred a law in the state of Andhra Pradesh to extend the death penalty to non-homicidal rape of adult women.[52] A similar bill was passed after a heinous offense of gang-rape in the state of Maharashtra.[53]
On the judicial front too, sexual violence has been at the heart of the debate on capital punishment in India since the Delhi gang-rape of 2012. In March 2020, India executed the four men convicted in this case, marking the first execution for non-terror offenses in 16 years.[54] One of the accused persons had killed himself in prison, allegedly due to sexual abuse by other prisoners.[55] Moreover, the death penalty has been increasingly imposed in other cases of sexual violence. The proportion of sexual violence cases within death sentences has increased substantially. In 2016, sexual offenses comprised only 17.64% of the total death sentences in India but this has increased consistently, and reached the maximum of 62.8% in 2020, after which it fell marginally, and was 53.3% in 2023.[56]
While the newer legal reforms and expansion of the scope of capital punishment have been critiqued by feminist scholars, they compel a more critical reckoning of engagement of progressive actors, such as liberal feminists in the Indian context, with the state. Initial feminist efforts, to reform the law, spanning over the 1980s to 2013, were taken over by an increasingly authoritarian and carceral state, while simultaneously excluding feminist groups from the conversation.
These developments imply a need to acknowledge the unintended consequences of feminist engagement with the state, especially around criminal law. In a bid to center sexual autonomy of women in a conservative social setting, the IWM relied on criminal law to achieve feminist outcomes. By expanding the category of aggravated rape and reversing the burden of proof in these cases, the IWM, through the J.S. Verma Committee, were navigating difficult terrain with genuine attempts at improving the law to reflect women’s complex sexual realities. The hope animating these reforms was that enhanced criminalization would secure autonomy for women and force police and courts to take sexual violence more seriously.
However, the reforms that ultimately emerged not only contained strong carceral streaks, but in their enforcement, carried forward prevalent notions about sexual morality. While enforcing and adjudicating sexual violence cases, women are not taken more seriously by police or courts simply because penalties have increased. Instead, they are often harmed by a reliance on punitive systems that cannot provide the outcomes they desire. Police continue to be dismissive, trials remain lengthy and traumatic, and conviction rates remain low. Given these realities, it is worth interrogating whether the criminal legal system can even be trusted as a space for recognizing and respecting sexual autonomy of women. The Indian experience bears out this question expressly. What women typically seek in the breach of promise to marry cases is either marriage, as promised, or some form of social recognition that a wrong has been done. The criminal law cannot deliver marriage, and the “recognition” it offers, in conviction and imprisonment, is both elusive and unsatisfying. In the next section, I further explore these questions by discussing further political and legal developments in the context of criminal laws around sexual violence in this regard.
III. Deceptive Sex, Subjective Harm, and the Binaries of Criminal Law
In her book, Kennedy powerfully shows that focusing solely on autonomy and selfhood to determine criminalization enables an unwarranted expansion of state punishment. Resultantly, any response short of criminal law appears inadequate. This observation is prescient when viewed in the context of contemporary Indian rape law adjudication in breach of promise to marry cases.
In this section, I explain how recent legal and political developments in India around criminal law foreground questions of deceptive sex, by discussing provisions of the Bharatiya Nyaya Sanhita 2023, which replaced the Indian Penal Code 1860. By showing how the legislation stifles women’s sexual autonomy and holds the potential for abuse against men from socio-politically marginalized communities, I argue that the state serves as an unreliable ally for progressive actors in securing sexual autonomy. Thereafter, I focus on the frameworks alternative to autonomy that Kennedy suggests in her book and show how they prove useful in unpacking the concerns emerging from laws around rape and deceptive sex in India.
A. Women’s Sexual Autonomy and Criminalization of “Deceptive Sex”: Bharatiya Nyaya Sanhita 2023
In 2023, the Indian government overhauled the entire criminal legal machinery by enacting the Bharatiya Nyaya Sanhita 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS), and the Bharatiya Sakshya Adhiniyam 2023 (BNA), which replaced the Indian Penal Code 1860, the Code of Criminal Procedure 1973, and the Indian Evidence Act 1872 respectively.[57] Although severely critiqued for multiple academic and practical reasons,[58] one of the justifications given by the government for this overhaul was the need to give “precedence” to crimes against women.[59]
While a majority of the provisions relating to sexual crimes remained the same, a new provision was added to the BNS, i.e., Section 69, which criminalized sexual intercourse with a woman by using deceitful means or by making a false promise of marriage without any intention of fulfilling the same.[60] The provision further explains that “deceitful means” includes false promise of employment or promotion, inducement or marrying after suppressing identity.[61] In India, this trend has taken an increasingly insidious turn in recent years. Women’s rights are being weaponized to police caste and religious minorities, particularly Muslim men. Several Indian states have enacted laws making inter-faith marriage extremely difficult, especially where a Muslim man marries a Hindu woman.[62] These laws are based on conspiracy rhetoric claiming that Hindu women are being converted to Islam through marriage, a narrative that right-wing Hindu nationalist groups have promoted aggressively.[63]
Unsurprisingly, therefore, legal scholars have pointed out how this provision will be used to criminalize Muslim men for allegedly hiding their religious identity, a practice that Hindu nationalists refer to pejoratively as “love jihad,” suggesting a deliberate conspiracy to convert Hindu women through romantic relationships.[64] The offense carries a mandatory minimum of ten years’ imprisonment, is cognizable, meaning police can arrest without a warrant, and non-bailable. Crucially, police can act even without a woman’s complaint. This last feature is particularly significant as it transforms what is ostensibly a law about protecting women’s sexual autonomy into a tool for state surveillance, regardless of what the women themselves want.
The parallels with historical anti-miscegenation laws in the United States are striking.[65] Just as those laws were ostensibly about protecting white women from predatory Black men, these new Indian laws are framed as protecting Hindu women from deceptive Muslim men. In both cases, the rhetoric of protection masks a broader project of policing racial and religious boundaries and subordinating minority men.
B. The State as Unreliable Ally
The Indian experience of interaction between criminal law and sexuality teaches a sobering lesson about the state as an ally in struggles for gender justice. Feminists have sometimes operated on the assumption that the state, if properly pressured and reformed, can be an instrument for advancing women’s interests, as in the case of the J.S. Verma Committee in 2012. The history of feminist engagement with criminal law reflects this assumption that if it is possible to get the right laws passed, train police and judges properly, and create adequate institutional mechanisms, then the criminal justice system can serve feminist ends. But the state has its own interests and its own logic, which often diverge sharply from feminist goals. This phenomenon is not unique to India and has been noted by critical scholar Janet Halley in her work around Governance Feminism. Halley describes Governance Feminism as the alliance between the state and some specific feminist actors, usually from the dominance and liberal feminism schools, which comes at the cost of exclusion of more radical schools of feminist thinking in the US.[66] In the context of criminalization of deceptive sex in India, such selective strategizing by the state is evident. By enacting a provision such as Section 69 of the BNS, the state emphasizes those aspects of gender justice that align with its broader projects. Enforcement of this provision could potentially achieve insidious goals of the state such as disciplining minority communities and expanding police power in the sphere of intimate relationships, while actively undermining sexual freedom and autonomy of women.
Given these facts, Kennedy’s skepticism of the autonomy framework proves useful in thinking through the Indian scenario. Kennedy observes that when legal responses were anchored in a collective interest or institution, such as marriage, it was easier to appeal to other collective interests beyond marriage, such as public health concerns and worries about abuse of authority, in developing and applying the law. When individual choice is the main, or even sole, interest underpinning the law, however, these “other” considerations can appear subservient or else disappear from view altogether.[67] The problem in India is that once autonomy became the sole stated interest of the law, the state, now helmed by an ethno-nationalist party, was given the free reign to pursue its vested interests. Thus, in the garb of enabling women to assert individual choice, the state could now carry out its project of religious persecution through criminal law enforcement.
Drawing from Kennedy’s analysis does not mean that in the Indian context, feminists should entirely abandon engagement with the state or with law reform. But it does mean being far more cautious about advocating for expanded criminal penalties, and far more attentive to how such expansions will actually be deployed in practice. In Kennedy’s terms, this means recognizing the dangers of allowing subjective wrongs to be absorbed into criminal law, and understanding that “prioritising individual interests is as contestable and morally charged as making space for collective interests.”[68] Below, I demonstrate how some ideas furthered by Kennedy in her book prove useful in analyzing contemporary problems with Indian criminal laws on deceptive sex and sexual violence.
1. Authenticity over Autonomy
The default assumption in much contemporary discourse on sexual wrongs is that all violations demand criminal sanctions, and that the seriousness of a wrong can be measured by the severity of the punishment attached to it. This assumption forecloses consideration of alternative responses that might better serve the interests of those harmed. Kennedy’s work demonstrates that law can be imagined differently through creative possibilities. Central to Kennedy’s alternative vision is her proposal to shift from autonomy to authenticity as the organizing principle for legal responses to inducing intimacy. This framing is also useful in rethinking feminists’ terms of engagement with the Indian state.
Kennedy argues that an account of the way that sex and intimate relationships are generally important to how people form their identities in contemporary societies can be used to construct an argument about when and why deceptively induced intimacy is wrong and potentially harmful. This framework takes seriously the agent-centered view of sex and intimate relationships while simultaneously asserting that the ground for a deception is not that it encourages valuable, or discourages non-valuable, forms of sexual activity or intimacy.[69] Instead, deceptions qualify when they involve information that is important to people in self-constructing terms, as this process occurs via sex and intimate relationships.
This approach is rooted in what Kennedy calls “the ideal of authenticity,” which differs fundamentally from autonomy. As she explains, “the ideal of authenticity is concerned with deciding in accordance with one’s own values, but it recognizes the significance of certain shared norms and horizons of meaning.”[70] In fact, it posits that these norms and horizons are required in order to develop and hold personal values. Adopting this framework involves focusing on the social meaning that actions and institutions carry while the specific meaning that these actions and institutions hold for any individual is not the sole concern.
The implications of such a framing for law reform are significant. Kennedy proposes that the wrong in deceptive sex cases should be conceptualized as “identity nonrecognition,” i.e., failing to recognize the identities of others and/or the development of these identities.[71] This wrong involves withholding information that is crucial to self-construction, which is a significant and valuable process that is worthy of respect. Crucially, “failing to respect this process by, for example, withholding information that is crucial to it, can therefore be described as wrongful.[72] Moreover, identity nonrecognition is potentially harmful insofar as it can cause negative effects on a person’s self-sentiments, including their sense of self-esteem, self-worth and self-efficacy.” What makes Kennedy’s framework particularly valuable for thinking about Indian law is its capacity to balance individual and collective interests without collapsing into either pure subjectivism or oppressive traditionalism. She acknowledges that the particular data, experiences, statuses and roles that are likely to be important to self-construction vary across time and place and are roughly generalizable across populations. This means that it is possible to identify components of selfhood that will likely, but not necessarily, be significant to individuals’ identities, and hence to identify what information is likely to be important to their decision-making.[73]
This generalizability provides the legal clarity and predictability that pure autonomy-based frameworks cannot deliver, while the emphasis on self-construction rather than moral policing avoids the problems of frameworks based on enforcing “proper” forms of sexual activity or relationship. Importantly, Kennedy’s framework is neutral with respect to the decisions people make regarding the issues that are likely to be generally significant in self-constructing terms. It does not, for instance, suggest that it is better to want to become a parent than to want to avoid this possibility, or that it is more laudable to want to have sex with a person of a different gender than it is to want to avoid this.[74] This neutrality could be what might make the framework resistant to the kind of weaponization we see in India, where the rhetoric of protecting autonomy masks religious persecution.
2. Structural Features of Legal Responses
Beyond the conceptual reframing, Kennedy offers detailed guidance on the structural features that legal responses to deceptive intimacy should incorporate. On modes of commission, she acknowledges that non-disclosure has been a long-standing feature of both civil law responses, such as nullity of marriage, and criminal law responses.[75] In addition, under autonomy-focused frameworks, the mode of deception, i.e., lie vs. non-disclosure, seems unimportant to whether the threshold of wrongfulness is reached.[76] However, she identifies a critical problem that disclosure duties risk disproportionately burdening marginalized people who have “undesirable” characteristics.[77]
This warning is directly relevant to India. If any non-disclosure that might affect another person’s decision to have sex could trigger criminal prosecution, then privacy interests are seriously impacted because the amount of information one would have to disclose to avoid violating the duty is potentially vast. Yet this impact would disproportionately affect those who have characteristics that are likely to be perceived as undesirable because they are more likely to have to disclose their secret in order to avoid the risk of liability. In the Indian context, this burden would fall disproportionately on religious minorities, Dalits, and others whose identities are stigmatized.
Kennedy’s proposals on culpability requirements are equally important. She suggests that while knowledge of the relevant information should be required, intention to deceive might set too high a threshold, though an even higher threshold (exploitation/coercion) might be justified given people’s varied reasons for deception, including avoiding marginalization.[78] This acknowledgment that people engage in deceptive conduct, including to avoid the negative effects of marginalization opens space for considering when criminalization might be inappropriate even if deception occurred. Indeed, Kennedy argues that criminal prosecution might be inappropriate in specific cases, namely when the deceiver’s conduct can be explained by the disadvantage they face, and the state is partially responsible for generating that disadvantage. In such circumstances, if the state’s failings and the deceiver’s wrong are of a similar kind, then it could be argued that the state loses its moral standing to blame.[79] This point has profound implications for India and underscores the double disadvantage faced by marginalized men when the state actively promotes religious and caste-based discrimination.
Conclusion
The parallels between Kennedy’s historical analysis of Scotland and England and contemporary legal dynamics in India reveal persistent patterns in how legal systems respond to intimate wrongs. In both contexts, relationships between sex, marriage, deception, and criminal law reflect broader social hierarchies and anxieties. In both contexts, women’s limited social power shapes how they engage with legal institutions. And in both contexts, criminal law proves to be a blunt and often counterproductive instrument for addressing intimate harms.
But the contemporary Indian situation also reveals dynamics that extend beyond Kennedy’s historical analysis. The weaponization of deceptive sex laws to police religious minorities, the appropriation of feminist rhetoric for Hindu nationalist ends, and the deployment of mandatory minimums and non-bailable offenses in cases of alleged deception all represent intensifications of carceral power that would have been difficult to imagine in earlier periods.
These developments demonstrate that once criminal law becomes the default response for an expanding range of moral wrongs, even when advocated by progressive actors, the state uses that opportunity to expand its carceral power in whatever directions serve its interests. This is not merely more criminal law; it is more severe criminal law, deployed with increasing brutality against already marginalized populations. Kennedy’s conclusion is relevant here, where she says:
[C]riminal prosecution might be inappropriate in specific cases, namely when the deceiver’s conduct can be explained by the disadvantage they face and the state is partially responsible for generating that disadvantage. In such circumstances, if the state’s failings and the deceiver’s wrong are of a similar kind, then it could be argued that the state loses its moral standing to blame. . . . [I]dentity nonrecognition and the framework I suggest might be built upon it has the capacity to recognise that within any given cultural setting some groups experience discrimination and marginalisation . . . .[80]
For deceptive intimate relationships specifically, Kennedy suggests that private law might be useful due to the possibility either that the deceived party might want to forgive and forget or that the deception has become less significant to them over time. In other words, the temporalities of relationships, i.e., the fact that they form gradually and can last a long time, calls for a different approach to potential legal regulation.[81] This points towards civil remedies that remain under complainant control, avoiding the problem evident in Section 69 of the BNS where police can act regardless of the complainant’s wishes. In breach of promise to marriage cases too, the existence of civil remedies might be more useful for women who seek marriage as the sole outcome of the relationship, without requiring them to go through the traumatic process of a criminal trial where they are often branded as liars. Admittedly, these alternatives are not perfect, and require careful thought about power, inequality, and the specific social context. However, their existence does underscore that criminal law should not be the automatic default, especially given its demonstrated capacity to produce harm and its vulnerability to capture by regressive forces.
The path forward requires reimagining legal responses to intimate wrongs in ways that do not reflexively turn to criminal sanctions. It requires attending carefully to questions of power and inequality, and to how legal reforms will actually operate in contexts shaped by caste, religion, race, and class hierarchies. Kennedy demonstrates through meticulous historical analysis that there is much to be gained by remaining cognizant of how deeply political the regulation of intimate life has always been. In India, where that regulation is being weaponized in increasingly brutal ways, her work offers not just diagnosis but a way forward that takes seriously both the reality of intimate harms and the dangers of carceral expansion.
* Doctoral Candidate in Law, University of Cambridge; Assistant Professor of Law, National Law School of India University, Bengaluru, India. The author is grateful to the participants of the Modern Criminal Law Review online workshop held in June 2025 for the invigorating discussion and feedback, and to Prof. Markus Dubber for the opportunity to participate. Many thanks are also due to Mr. Himanshu Agarwal for his comments and editorial help during the final stages of writing this paper.
[1] Chloë Kennedy, Inducing Intimacy: Deception, Sex and the Law (2024).
[2] Aya Gruber, Sex Exceptionalism in Criminal Law, 75 Stan. L. Rev. 755 (2023).
[3] Kennedy, supra note 1, at 20.
[4] Id. at 34.
[5] Pratiksha Baxi, Public Secrets of Law: Rape Trials in India 235-68 (2013); Arushi Garg, Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India, 20 Soc. & Legal Stud. 1 (2018).
[6] Monica Sakhrani, Reading Rape Post Mathura, 23 Indian J. Gender Stud. 260 (2016).
[7] Rukmini S., Whole Numbers and Half Truths: What Data Can and Cannot Tell Us About Modern India (2021); Preeti Pratishruti Dash, Rape Adjudication in India in the Aftermath of Criminal Law Amendment Act (2013): Findings from Trial Courts of Delhi, 4 Indian L. Rev. 244 (2020).
[8] Baxi, supra note 5; Garg, supra note 5.
[9] Nikita Sonavane, Rewriting Uday v. State of Karnataka: An Anti-Caste Reckoning of Consent in “Promise to Marry” Cases, 56 Verfassung und Recht in Übersee 89 (Symposium: Indian Feminist Judgments Project) (2023).
[10] Bharatiya Nagarik Suraksha Sanhita 2023, § 359. Non-compoundable offenses under the Indian legal system are those which cannot be settled or compromised, as they are considered to be serious crimes.
[11] Bharatiya Nyaya Sanhita 2023, § 64(2); Bharatiya Sakshya Adhiniyam 2023, § 114.
[12] Prabha Kotiswaran, Carceral Politics of Sexual Violence (Project 39A, 2019) (https://perma.cc/K5R8-ZJMC).
[13] Id. at 34.
[14] While the feminist movement in India cannot be reduced to one voice, the Indian Women’s Movement’s contribution to reforming rape law remains pivotal.
[15] Prabha Kotiswaran, Governance Feminism in the Postcolony: Reforming India’s Rape Laws, in Governance Feminism: An Introduction 88-89 (Janet Halley et al. eds., 2018); Nandita Gandhi & Nandita Shah, The Issues at Stake: Theory and Practice in the Contemporary Women’s Movement in India 16 (1992).
[16] Id. at 75.
[17] Tukaram and anr. v. State of Maharashtra, (1979) 2 SCC 143 (Supreme Court of India).
[18] Upendra Baxi et al., An Open Letter to the Chief Justice of India (1979) (https://perma.cc/5MX9-73Y6); Amartya Kanjilal Narrating Legal Reform: The Open Letter and the Anti-Rape Movement in Perspective, 29 Indian J. Gender Stud. 199 (2022).
[19] Vibhuti Patel & Radhika Khajuria, Political Feminism in India: An Analysis of Actors, Debates and Strategies (Friedrich-Ebert-Stiftung, April 2016) (https://perma.cc/9B7Z-2L4S).
[20] P.S.N. Prasad, The Police and Rameeza Bee: Muktadar Commission’s Findings, Econ. & Pol. Weekly, Sept. 2, 1978, at 1497.
[21] Law Commission of India, Rape and Allied Offences (Report No. 84) (1980), app. 1.
[22] Id. at 10.
[23] Indian Penal Code 1860, § 375 (as amended by the Criminal Law Amendment Act 1983).
[24] Id.
[25] Indian Penal Code 1860, § 376 (as amended by the Criminal Law Amendment Act 1983).
[26] Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (2016); Prem Chand and anr. v. State of Haryana, (1989) S.C. 937 (Supreme Court of India).
[27] Kotiswaran, supra note 15, at 91.
[28] Saakshi v. Union of India, (2004) 5 SCC 518 (Supreme Court of India).
[29] Law Commission of India, Review of Rape Laws (Report No. 172) (2000).
[30] Madhu Mehra et al., Note on Criminal Law Amendment Bill, 2010: Response of Women’s Groups (Partners for Law in Development, 2010) (https://perma.cc/BC57-43LP).
[31] Demand by Women’s Groups and Concerned Individuals for Urgent Reform of Law Relating to Sexual Assault, and Seeking Accountability of the NCW. Petition Signed by 92 Organizations and 546 Individuals (Partners for Law in Development, 2012) (https://perma.cc/9YTR-XFCH).
[32] Devika Mittal, What About India’s Daughters in the Conflict Zones (Mar. 8, 2015) (https://perma.cc/96U7-NAEK).
[33] Indian Penal Code 1860, § 354.
[34] Nivedita Menon, Recovering Subversion: Feminist Politics Beyond the Law 109 (2004).
[35] Jayna Kothari, Justice Verma Committee Report: A Manifesto of Change (Centre for Law and Policy Research, Mar. 17, 2019) (https://perma.cc/UF3C-TAF9); Mrinal Satish, Forget the Chatter to the Contrary, the 2013 Rape Law Amendments Are a Step Forward, The Wire (Aug. 22, 2016) (https://perma.cc/BY6M-MJT8).
[36] Arvind Panagariya, India in the 1980s and 1990s: A Triumph of Reforms (IMF Working Paper WP/04/43, 2004) (https://perma.cc/F5C3-UBPF).
[37] Inderpal Grewal & Victoria Bernal, Introduction: The NGO Form Feminist Struggles, States, and Neoliberalism, in Theorizing NGOs States, Feminisms, and Neoliberalism 1 (2014).
[38] Feminist Law Archives, Justice Verma Committee 2013 (https://perma.cc/Q5BF-RW58) (responses to Justice J.S. Verma Committee).
[39] Id.
[40] Indian Penal Code 1860, § 376(2).
[41] Criminal Law (Amendment) Act 2013, §§ 375-376.
[42] Indian Penal Code 1860, Exception No. 2 to § 375(1), § 376E.
[43] Kothari, supra note 35; Satish, supra note 35.
[44] Kotiswaran, supra note 15.
[45] Christophe Jaffrelot & Anil Pratinav, India’s First Dictatorship (2021).
[46] Kotiswaran, supra note 15, at 91.
[47] Id.
[48] Id.
[49] Criminal Law (Amendment) Act 2018.
[50] Protection of Children from Sexual Offences (Amendment) Act 2019, § 6.
[51] Anuj Bhuwania, No Country for Procedural Justice, The Hindu (Jan. 2, 2020) (https://perma.cc/SWT8-B5HL).
[52] The Andhra Pradesh Disha Act 2019.
[53] The Shakti Criminal Law (Maharashtra Amendment) Bill 2020.
[54] BBC, Nirbhaya Case: Four Indian Men Executed for 2012 Delhi Bus Rape and Murder (Mar. 20, 2020) (https://perma.cc/KB35-9TSQ).
[55] Debolina Dutta & Oishik Sircar, India’s Winter of Discontent: Some Feminist Dilemmas in the Wake of a Rape, 39 Feminist Stud. 293 (2013).
[56] Project 39A, Annual Statistics Report 2023 (Jan. 2024) (https://perma.cc/QWX2-Y6WY).
[57] PRS Legislative Research, Overview of Criminal Law Reforms (https://perma.cc/D2KN-7S62).
[58] India’s New Criminal Codes: Taking Stock and Looking Ahead (Mar. 14, 2024), Modern Criminal Law Review (https://perma.cc/E7TW-G5SN).
[59] Government of India, Ministry of Home affairs Press Information Bureau, Crimes Against Women and Children Given Precedence under BNS (Mar. 11, 2025) (https://perma.cc/KG7G-MR4R).
[60] Bharatiya Nyaya Sanhita 2023, § 69.
[61] Bharatiya Nyaya Sanhita 2023, Explanation to § 69.
[62] Chinki Sinha, India’s Interfaith Couples on Edge After New Law, BBC (Mar. 15, 2021) (https://perma.cc/5ZQE-LG37).
[63] Lauren Frayer, In India, Boy Meets Girl, Proposes, and Gets Accused of Jihad, NPR (Oct. 10, 2021) (https://perma.cc/7HND-7C5P); Shraddha Murder Case Turns Communal, Right-Wingers Term It Love Jihad, Newsclick (Nov. 16, 2022) (https://perma.cc/M392-KPUE).
[64] Tabassum Barnagarwala & Vineet Bhalla, Why Legal Experts Are Criticising New Clause to Punish Sex by False Promises, Scroll.in (Aug. 18, 2023) (https://perma.cc/KBN5-5FXQ).
[65] Gruber, supra note 2.
[66] Janet Halley, Preface: Introducing Governance Feminism, in Governance Feminism: Notes from the Field ix, ix-xiii (Janet Halley et al. eds., 2019).
[67] Kennedy, supra note 1, at 202.
[68] Id. at 219.
[69] Id. at 213.
[70] Id.
[71] Id. at 214.
[72] Id.
[73] Id. at 215.
[74] Id. at 217.
[75] Id. at 205.
[76] Id. at 206.
[77] Id. at 207.
[78] Id. at 208.
[79] Id. at 217.
[80] Id.
[81] Id. at 218.
Suggested Citation: Chloë Kennedy, Not Just Academic: Critiquing and Reforming the Law of Deceptive Sex, 2 Mod. Crim. L. Rev. 245 (2026).