Rape Rape Everywhere, Not A Law To Look To
There seems to be a rape avalanche in the country - Badaun, Bhagana, Etawah and so on. The recent rape spate can be said to have started with the Delhi gangrape,people protested against it, had a commission set up, an amendment to archaic criminal laws passed, saw the news of another brutal rape, came back to protest. Now, this is coming back to square one. And we have been doing this exercise time and again.
In fact form the very inception of rape
laws in India, ie, the Vishakha judgement in 1997. An NGO worker was
gangraped, people protested, a judgement was passed to fill in the
lacuna in Indian rape laws. This story has been repeating itself time
and again. Every time there is a brutal rape that shakes the conscious
of the nation, (for every one such case there are many cases that go
unnoticed and are shoved under the carpet) a law is passed. Yet, barely
do we move away from square one that we are back on it.
Why do the laws not work?
Ever since Vishakha in
1997, which provided India with the first detailed laws dealing with
rape at the workplace, people have been protesting against rape. The
judiciary stepped in in a timely manner to fill in the gap. Yet there
was no legislation, but after more rapes and the following protests we
finally had a law in 2013. Now despite having a law, we are back to
where we began, in fact even worse, we have a spate of brutal rapes
before us – Badaun, with two teenage girls left hanging from a tree
after being raped and murdered and having two policemen as accused in
the case, Bhagana, where a surpanch is involved in rape, Etawah, where
the rape victim’s mother is beaten critically to make her withdraw her
complaint. What is to be done? Protest? Have another
commission/bill/act/regulation passed? And wait for the next rape to
come back to protest? Or maybe just stay indoors and also keep all women
in doors?
Before answering these questions let us first take a look at the rape laws in the country:
Rape laws were
rehauled in April 2013 with the passage of the Criminal Law Amendment
Act. It made changes to the Indian Penal Code, the Indian Evidence Act,
the Criminal Procedure Court and the Protection of Children from Sexual
Offences Act with respect to rape related offences. The offence of rape
has been defined afresh under Section 375 of the IPC. It is now both
penile and non-penile insertion into bodily orifices of a woman by a man
an offence. The definition is broadly defined in some aspect, with acts
like penetration by penis, or any object or any part of body to any
extent, into the vagina, mouth, urethra or anus of a woman or making her
to do so with another person or applying of mouth to sexual organs
without the consent or will of the woman constitutes the offence of
rape.
The section has also
clarified that penetration means "penetration to any extent", and lack
of physical resistance is immaterial for constituting an offence. Except
in certain aggravated situation the punishment will be imprisonment not
less than seven years but which may extend to imprisonment for life,
and shall also be liable to fine. In aggravated situations, punishment
will be rigorous imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life, and shall also
be liable to fine.
A new section, 376A
has been added which states that if a person committing the offence of
sexual assault, "inflicts an injury which causes the death of the person
or causes the person to be in a persistent vegetative state, shall be
punished with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to imprisonment for life, which
shall mean the remainder of that person’s natural life, or with death."
In the case of "gang
rape", the act provides that persons involved regardless of their gender
shall be punished with rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend to life and shall pay
compensation to the victim which shall be reasonable to meet the medical
expenses and rehabilitation of the victim.
The Act also lays down
punishment for police officers who fail to record the initial
complaint, known as the first information report, of a woman who alleges
she was attacked with acid, assaulted by a man who intended to molest
her or "outrage her modesty," stripped naked or raped. Such officers can
receive jail terms of six months to two years.
It has also made
procedural changes to address concerns that women are uncomfortable or
intimidated by male police officers, or are treated with insensitivity
when they approach police stations to register complaints of sex crimes.
The Act requires that all initial reports involving sexual harassment,
disrobing, voyeurism, stalking, rape and gang rape be taken by women
officers only.
It takes a tough stand
on rape by public servants including the armed forces. Under the
previous law, when a rape is committed by a police officer or prison
staff, those convicted can be punished with sentences ranging from 10
years to life. The Act clarifies that imprisonment for life means the
convict must remain in prison till the end of his natural life. It also
deals with rape by persons in position of trust and authority.
The Act has created
new offences of acid attack, voyeurism and stalking including
e-stalking, or monitoring of a woman’s activities online, such as
browsing or checking of e-mail.
The punishment for
repeat offenders has been intensified and includes death penalty. The
age of consent has been increased to 18 years, which means any sexual
activity irrespective of presence of consent with a woman below the age
of 18 will constitute statutory rape.
Marital rape is not
accepted as a criminal offense except if it occurs during the period of
judicial separation of the partners. The Protection of Women from
Domestic Violence Act 2005 (PWDVA) provides protection against marital
rape or other forms of sexual perversions and domestic violence.
However, it offers only a civil remedy for the offence.
Changes to the
Criminal Procedure Code and Indian Evidence Act, have also been made.
The recording of statement of the victim become more friendly and easy.
There is also a provision for free of cost treatment for victims. Most
importantly, the character of the victim is no longer relevant for
consideration of evidence and there is a presumption of no consent where
sexual intercourse is proved and the victim states in the court that
there has been no consent.Death penalty can be awarded for the most
extreme rape cases.
Problems with these laws:
The new law is
comprehensive and covers a lot of ground. It has created new offences,
revised erroneous and outdated provisions, amplified punishments. So do
we now finally have sound rape laws or is a there a need to protest and
demand new laws? Apart from the provisions not recognising marital rape
as an offence and setting the age of consent at 18 the 2013 Act by and
large appears to be sound.What we now require is speedy and effective
implementation of the law. The problems concerning the crime of rape are
manifold and are not just limited to lust and in apt legislation or law
enforcement, but there are other dimensions of caste and social status
that also get involved. Even though not registering an FIR is has been
made an offence, the same was committed at Badaun. In the Badaun case,
the two girls’ tragedy was not merely that they were girls who fell prey
to a man’s lust but rather their tragedy was aggravated by their caste
and social status of a Dalit. Their tragedy was triggered by their
economic status of being from amongst the poorest of Indian hinterlands
where even basic sanitation facilities are not readily available. The
girls had to go out in public for their sanitary requirements as there
aren’t any toilets that they could go to. And that is when they were
abducted, similar to the Bhagana case. Thus, the problem is also of
socio-economic dimensions.It is not just a law and order problem. And so
a mere legal answer cannot solve it.Though the Delhi gangrape took
place in the metro to a person hailing from the middle class. Yet, the
blame for even that rape cannot be placed at the doors of inadequate
laws. Rape is widespread but if we look to the law as a solution, then
we have got the wrong end of the stick.
As Atticus Finch noted in To Kill a Mocking Bird,
"I'm no idealist to
believe firmly in the integrity of our courts and in the jury
system—that is no ideal to me, it is a living, working reality.
Gentlemen, a court is no better than each man of you sitting before me
on this jury. A court is only as sound as its jury, and a jury is only
as sound as the men who make it up. I am confident that you gentlemen
will review without passion the evidence you have heard, come to a
decision, and restore this defendant to his family. In the name of God,
do your duty."
The legal system is a
living, working reality. It is no better than each of us who are part of
this society. A law is only as sound as its enforcers, and an enforcer
is only as sound as the men who make it up. The men who made up the UP
police force are a part of the UP society that in turn is a part of
Indian society. Law is not a magic wand that will solve all problems.
You can have a new law, but for it to be effective, you require a
society that respects and imbibes it.
The process of Rape.
Protest. Law. Rape. Protest. Law. Has to be broken. And social
change has to be added. After every rape, we don't need mere protest and
new legislation. That is a mere eye wash and hence, the problem recurs.
What we need is introspection and a change in mindset. You can have the
best laws but they are of no use unless you have the will to act on
them. We have Rape. Protest. Law. Let’s add WILL To the list. The WILL
to end rape for real. The WILL to shrug off a misogynist attitude of
“Boys will be boys.”
Only WILL can give life to any law, making it effective.
The founder of women's rights organisation Majlis and
lawyer, Flavia Agnes on the state of rape legislation in India and what
can be done to reduce the occurrence of rape. Majlis is a forum for
women's rights discourse and legal initiatives. It offers legal
services, conducts legal awareness trainings, engages in policy level
interventions, public campaigns and public interest litigation in order
to help women access justice.
1. Despite the 2013 Amendment rape continues unimpeded. What is lacking in the law?
a. There is nothing wrong with the law. Neither are any modifications required. How can we expect the law to stop rape unless we hang every rapist? Law can only punish. The problem is with the society. It concerns issues of caste and class hierarchy, what lessons we teach our boys, the way we raise them. To focus on the law, that it will stop rape is wrong.
2. Do you subscribe to the view that death penalty would reduce the instances of rape?
a. Only if everyone is hanged will it work as a prevention. 90% of the rapists are fathers, brothers, uncles. Can we hang all of them? Everybody has an aspiration to rape. It may sound too harsh but women are always looked upon from a sexual perspective. Look at the comments made at parties or the jokes. All are ripe with sexual innuendos. Rape is just an extreme manifestation of that which all are thinking. It is thus a social problem and not one of legal failure.
The government has to deal with caste and minority issues. Rape is one aspect of this problem that alone gets highlighted. There are many other problems faced by the Dalits. After 50 years of independence we still have caste and religion based exploitation. This problem is not highlighted. This what we need to deal with.
3. The government is talking of setting up a Rape Crisis Cell. Is it a necessity or a mere eye-wash?
a. It is nothing new. We have one in Mumbai. It is collaboration between the government and our NGO. It is a must. However, it steps in after the rape has taken place to assist the victim. It does not prevent rape.
a. There is nothing wrong with the law. Neither are any modifications required. How can we expect the law to stop rape unless we hang every rapist? Law can only punish. The problem is with the society. It concerns issues of caste and class hierarchy, what lessons we teach our boys, the way we raise them. To focus on the law, that it will stop rape is wrong.
2. Do you subscribe to the view that death penalty would reduce the instances of rape?
a. Only if everyone is hanged will it work as a prevention. 90% of the rapists are fathers, brothers, uncles. Can we hang all of them? Everybody has an aspiration to rape. It may sound too harsh but women are always looked upon from a sexual perspective. Look at the comments made at parties or the jokes. All are ripe with sexual innuendos. Rape is just an extreme manifestation of that which all are thinking. It is thus a social problem and not one of legal failure.
The government has to deal with caste and minority issues. Rape is one aspect of this problem that alone gets highlighted. There are many other problems faced by the Dalits. After 50 years of independence we still have caste and religion based exploitation. This problem is not highlighted. This what we need to deal with.
3. The government is talking of setting up a Rape Crisis Cell. Is it a necessity or a mere eye-wash?
a. It is nothing new. We have one in Mumbai. It is collaboration between the government and our NGO. It is a must. However, it steps in after the rape has taken place to assist the victim. It does not prevent rape.
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