Why the law on sexual offences must be changed: Madhu Mehra
Guest post by MADHU MEHRA
The public outrage in the wake of the Delhi gang rape has been as much a reaction to the brutality of the case, as it has been against the pervasiveness of sexual violence in our society. Instead of condemnation and action, rape cases frequently evoke public statements blaming the victims, and calls to reign in women’s freedom. That our social structures and mindsets remain patriarchal is well known. The question however is, to what extent does the law counter societal misogyny in the way it frames and responds to sexual violence? Do the criminal laws establish norms that uphold women’s bodily integrity and dignity in all situations, against all offenders without selectivity or discrimination?
Crafted in the nineteenth century to protect purity of male lineage, rather than women’s bodily integrity, the Indian Penal Code continues to be steadfast to its patriarchal moorings. It treats non-consensual peno-vaginal penetration as the only serious sexual offence under sections 375 and 376. Marital rape is expressly de-criminalised. Other non-consensual penetrative sexual actssuch as insertion of the finger or objects into the vagina, anus or mouth of the woman are not included within the scope of rape. Instead they are subsumed under Section 377 that pertains to ‘carnal intercourse’, which unlike procreative intercourse, is described as being ‘against the order of nature’. Historically, this provision has served to criminalise homosexuality.
Consent is not used consistently in law to distinguish sexual wrongs from sexual rights. The de-criminalisation of marital rape is not the only means by which the wife’s status as the husband’s property is legally secured. Adultery provision (section 497) criminalises consensual sex by the wife outside marriage, even as it excludes the husband’s extra marital sex from the purview of criminality. The inconsistent approach to consent is also evident in the offences ‘against the order of nature’, which make no distinction between consensual and non-consensual sex. This subjective use of the term consent serves to uphold patrilineality and heteronomitivity in the law, rather than sexual autonomy and bodily integrity of women. The selective and subjective reading of consent spills beyond the statute to the judicial attitudes and the manner in which the courts appreciate evidence. A woman’s conduct, clothes, references to old hymen tears and previous sexual history have been the basis for acquittals, and often, for reducing a rape sentence to 2 to 3 years, when the statutory minimum is 7 years in the law. Studies show that rape prosecutions, from reporting, investigation, medical procedures, cross examination and judicial reasoning are demeaning and hostile to women.
All non-penetrative sexual assault, which constitutes the widest swathe of offences against women, are collapsed under ‘outraging the modesty’ of a woman under section 354. Regardless of the gravity of the assault, and its repercussions on women, the provision provides only a maximum sentence of 2 years. This provision is invoked for a range of non-penetrative sexual assault, from lesser to grave, such as public disrobing and parading of women, tonsuring the woman’s hair, groping – all of which have been trivialized. The mob molestation, groping and public stripping of a young woman in Guwahati in July 2012, was revealing for more than one reason – first,it highlighted public apathy towards a grotesque spectacle of violence as it played out on a busy street in the centre of the state capital; and second, because the police failed to take any action until several days later, following national outrage.
The lack of recognition to a large spectrum of harassment and intimidation such as stalking and voyeurism is a serious shortcoming in the law. Failure to name, recognise and punish each of these offences in the law creates the impunity for wide ranging sex crimes, encouraging offenders to graduate from lesser to more serious offences without fear of legal consequences.
It is in this context that the report of the three member committee headed by Justice Verma (JVC report) assumes significance for women’s equality and gender justice. The recommendations introduce a paradigm shift in the way sexual violence against women is framed. After 64 years of the Indian republic, women’s security concerns have for the first time have been framed within the constitutional concepts of equality and non-discrimination. The recommendations make bodily security, integrity and sexual autonomy for women central, rejecting patriarchal references of protectionism and modesty. The highlights of the JVC report are listed:
- Expands the definition of ‘rape’ to include all penetrative sexual assault
- Extends protection against rape by men against ‘all’ persons, including thereby transgender and transsexual persons, including hijras and kothis.
- Defining consent to mean “an unequivocal voluntary agreement … to participate in the specific act,”and further, makes the absence of physical resistance immaterial to consent.
- Criminalising rape regardless of the status of the offender, or the relationship of the offender with the victim. It recommends an amendment to section 6 of the Armed Forces (Special Powers) Act, 1958, such that for offences of rape and sexual assault committed by armed forces there shall be no need for prior sanction. It further recommends that a member of security forces accused of rape be tried in ordinary criminal court.
- It recommends criminalising marital rape.
- Widens the spectrum of sexual offences to recognise and name all forms of sexual assault from penetrative to non-penetrative acts, including acid attacks, intent to disrobe a woman, acid attacks to disfigure and maim, stalking and voyeurism.
- It defines the age of consent at 16 years, to ensure that consensual sexual activity amongst young adults and adolescents is not criminalised, and securing young persons against parental retribution (as is often the case in honour crimes).
- It recommends a new offence of ‘breach of command responsibility’ for public servants. This typically applies to situations of mass sexual atrocities, such as during communal violence, where the public servant fails to control the actions of persons over whom such a public servant exercises authority.
- It recommending a protocol for medical examination of victims of rape and sexual assault and bans the unscientific humiliating investigation based on “two-finger test”.
The women’s movement has been campaigning for reform of laws relating to sexual violence for two decades, without much success. The JVC report, proposes comprehensive reforms, framed to recognise the bodily security and integrity of women in all situations and against all perpetrators without discrimination, or reference to public morality. These recommendations are a step towards fulfillment of the constitutional values of sex and gender equality that must be implemented at the earliest.
Madhu Mehra is Executive director, Partners for Law in Development, a legal resource group working on women’s rights.