A recent series of brutal rape cases in India, which attracted international media coverage and provoked domestic protests, seems to have finally prompted India’s government to take more seriously the problem of sexual violence. For instance, India’s Parliament has created a number of new sex-related crimes—stalking, disrobing, voyeurism—and is now considering an executive order introducing the death penalty for rapists of children under the age of 12. Strikingly, even India’s new anticorruption legislation—the Prevention of Corruption (Amendment) Act, 2018 (Amendment)—tries to address the sexual violence problem as well. The Amendment, passed in July 2018, introduced a number of changes to the country’s thirty-year-old anticorruption legislation (the PCA), which criminalizes bribery involving public officials. Among the changes is an expansion of what corruption and bribery can entail, to include not just money or material goods, but also sexual favors. Previously, the PCA had defined bribery as providing a “financial or other advantage” to public officials, but in response to criticism that this language was too narrow, the Amendment replaced this phrase with the term “undue advantage,” and further specified that “undue advantage” is not restricted to those advantages that are “pecuniary” or “estimable in money.” This means that the law, while not explicitly mentioning sex, now apparently covers the offer, request, or extortion of sexual favors as something covered by the criminal prohibition on bribery of or by a public official.
On its face, expanding the scope of the anticorruption legislation to include corrupt sexual extortion, or “sextortion,” seems to be a move in the right direction. And indeed there’s a good case to be made that recognizing the extortion of sexual favors not only as a crime of sexual assault, but also as a form of public corruption, is compelling. But in fact, by implicitly treating sextortion as essentially the same as the extortion of monetary bribes, the Amendment will do little to combat sextortion as a form of corruption, and in fact is likely to do more harm than good. There are three interrelated reasons for this:
- First, the Amendment makes those from whom a public official extorts sexual favors potentially liable for the crime of paying bribes. (Under the original PCA, only the public official’s solicitation of a bribe was criminal, but the Amendment has criminalized the offering of a bribe to a public official as well. The punishment for giving a bribe is the same as that of taking one, which is 3 to 7 years of imprisonment and a fine.) The caveat is that those who supply a bribe to obtain something to which they are already entitled (such as a ration card) are presumed to have been coerced into supplying the bribe and are therefore protected from prosecution. However, those who provide a bribe to obtain an advantage over other persons (such as obtaining a license over other bidders) are presumed to have colluded with the bribe-taker and are criminally liable for paying bribes. In this context, the simple equation of sextortion with monetary bribes is inappropriate: a monetary bribe requires active acquiescence of the victim to give cash to the public official, but in a sextortion context, presuming that giving a sexual favor involves the same kind of acquiescence as giving cash overlooks the power imbalances between a public official and the person propositioned for sex in the many humiliating ways it can occur—inappropriate touching, demeaning language, invading the victim’s physical space and ability to escape. The sextortion victim may not feel like she or he has a choice to decline the demand, even if the quid pro quo involves some kind of benefit from the public official. Here, sex may be implicitly coerced, yet the Amendment treats it as willing collusion to “pay” a bribe.
- Second, the Amendment’s reporting requirement may leave sextortion victims criminally exposed. The Amendment includes a special protection for those providing a bribe if they are “compelled to give such undue advantage,” but this protection is available only if the victim of the extortion reports the matter to law enforcement “within a period of seven days from the date of giving such an undue advantage.” A 7-day reporting window may be appropriate for someone who has been pressured to give a monetary bribe, but in the sextortion context this 7-day window is far too narrow in light of the many reasons why sexual assault victims are reluctant to report right away, and indeed may never want to reveal their traumatic experiences at all. The Amendment gives victims a mere week to voluntarily report a powerful public official who coerced them into providing sexual favors, after which point the victims will be treated by the law as co-conspirators if the conduct is eventually discovered. The reporting requirement forces victims to choose either to report the sexual advances of the perpetrator—and face potential embarrassment and trauma as a result—or expose themselves to criminal punishment for supplying a sexual favor to a public servant, even when it was coerced.
- Third, the Amendment’s investigation approval requirement creates barriers to prosecuting public officials for soliciting or accepting sexual favors as bribes. Under the PCA, as long as a public official accused of bribery was below the rank of Joint Secretary (the third-highest executive position in India’s government), an independent corruption investigation by law enforcement did not need prior approval from the central government. The Amendment, however, mandates that the central government set up a sanctioning authority that must approve all corruption investigations of public officials (and will have up to four months to do so), unless the public official is caught red-handed by law enforcement. The rationale for requiring approval to investigate is to “protect public servants from harassment.” While a neutral third party may be helpful in investigating corruption cases, it is also possible that the sanctioning authority will impede effective and timely investigations, and this is particularly likely to occur in the context of sextortion cases, where the incentives to avoid embarrassing investigations and to discredit victims may be especially strong. With the sanctioning authority as an additional hurdle between the victim and an investigation, victims may be further discouraged from reporting for fear that their allegations will not be taken seriously.
All of these problems proceed from a common source: While it is true that the use of official power to extort sexual favors is just as bad as (indeed, often much worse than) the extortion of pecuniary or other material benefits, the position of the victims in these two cases is much different. It may make sense to presume that someone who pays a monetary bribe in exchange for an undeserved advantage is a willing co-conspirator, unless that person acts quickly and decisively to report that he or she was coerced. But it does not make sense to adopt such a presumption for those who are pressured into providing sexual favors. In the latter case, the law should generally assume that such individuals are victims, even if they do not report right away, and indeed the law must put in place additional safeguards and assurances to encourage reporting. India’s new Amendment fails to recognize these distinctions, and so its expansion of the definition of a bribe to include sex as well as money may not only prove ineffective in shielding individuals from sexual assault and harassment, but may also worsen the problem.