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The Criminal Law Ordinance 2013 on Sexual Assault – Cut, Paste and Shock! Pratiksha Baxi

February 5, 2013

Guest post by PRATIKSHA BAXI 

Once the Criminal Law Ordinance 2013 was uploaded, circulated and read many times, an overwhelming desire to mark the ordinance to all one’s students as an example on how not to frame laws has grown. Yet, explain one must, why the current law on sexual assault is so bizarre, even if we do not bring in the so-called controversial elements and keep to the text of the ordinance.

The Criminal Law Ordinance 2013 begins with the definition of sexual assault as a gender-neutral offence. It does not make an exception to state that women do not rape men in everyday contexts under s. 375. Since such an exception is not added, and the ordinance specifies that ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault’, we are faced with a confounding and deeply misogynist legal consequence. Wives, we are told cannot prosecute husbands for sexually assaulting them. But since sexual assault is gender neutral without any exceptions and the marital rape exemption is not extended to husbands, now husbands can accuse wives of sexual assault but wives can never prosecute husbands for sexual assault! 

To retain the marital rape exemption strikes at the heart of women’s bodily autonomy and integrity. However, to limit the exemption to wives, and allow husbands the legal remedy to file criminal complaints against their wives on the ground of sexual assault is absolutely absurd, if not totally misogynist.

The Justice Verma Committee (JVC) report had come up with a clear formulation of rape and sexual assault. Rape in everyday contexts was not gender-neutral viz., perpetrators. It specified perpetrators of rape as men, and identified victims as gender plural (any person irrespective of gender or sexual orientation). In the instance of sexual assault, gangrape and aggravated rape [under s. 376 (1) & (2)], were constructed as gender-neutral offencesviz, perpetrators and victims. Furthermore, the marital rape exemption was deleted and it was recommended that marriage should neither be the basis for presuming consent nor should any third person than wife be allowed to lodge such a complaint (to address the misuse issue). In everyday contexts, especially in intimate relationships and marriages, this definition is sensitive to the power dynamics between men and women; while recognising that in prisons, police stations, custodial homes, hospitals, in fiduciary relationships and gang rape women may be perpetrators. It is critical to understand why this definition is important breakthrough in the debates on gender neutrality so far. This definition not only recognises the bodily autonomy of women but also recognises the bodily integrity of men (irrespective of sexual orientation or gendered identity) and transgendered persons. It does not split the victims into distinct categories based on identity and therefore avoids the medicalization of sexual identity. Given the heated debates on gender neutrality, the JVC managed to define rape as a crime of patriarchy, which is not limited to women as victims, although women have predominantly the target of sexual violence.

Some may argue that this definition still leaves out certain forms of violence, which find place in intimacy of a same sex relationship, or essentializes women. But remember, the JVC does not recommend the deletion of s. 377 IPC, nor do other forms of criminalisation of same sex relationships find redress. For instance, Modi (2011) describes lesbianism as tribadism and says “lesbian women can be so morbidly jealous of such woman with who they are inverted in love, that they are sometimes incited to commit even murder” (Modi 2011:684). These are statements of prejudice, which construct lesbians as a “criminal type”. And these find no redress.

The Criminal Law Ordinance 2013also juxtaposes gender neutrality with the retention of s. 377 IPC. To retain unnatural sexual offences in the IPC means to blur the distinction between consent and lack of consent, to validate the damning judicial discourse on sodomy and validate heterosexist bias against sexual minorities. Not to include the repeal of s. 377 in the ordinance, just because the JVC does not do so, and even though the 172nd Law Commission recommended such a deletion in 2000 is a scandal. It is unintelligible since s. 377 IPC characterises sexual assault as unnatural sex and does not allow any person to consent to “unnatural” sex. If the prime concern is with expanding the definition of consent; and ensuring bodily autonomy or providing protection from sexual assault to all persons, naming the experience of sexual violence as unnatural sex, or calling consensual sex, unnatural is illogical, if not ideologically violent.

Further, sexual assault is defined without any gradation of different offences, in terms of severity of violence or the nature of violence. Section 375 (a-c) defines as sexual assault as the penetration of bodily parts or other objects into bodily orifices without consent. Section 375 (d) holds that a person commits sexual assault if s/he ‘applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person’ without consent. Section 375 (e) holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent, it amounts to sexual assault[note that the cut and paste job, evident from the word “he” to designate the perpetrator]. These are all forms of sexual assault “except where such penetration or touching is carried out for proper hygienic or medical purposes”.

The use of the word hygienic is totally mysterious, and dangerous—since it allows a crafty defence lawyer to convert the experience of sexual assault into a sanitized lesson in hygiene. Further, to allow penetration for medical purposes and not even minimally mention that a doctor must take the informed consent of the person prior to penetrating or touching is violative of elementary medical ethics. Nor does the ordinance delete the two-finger test. Therefore what it does is, it permits the insertion of two fingers in the survivor’s anus or vagina for medical purposes without seeking the consent of the survivor, which even Modi’s first volume on medical jurisprudence and toxicology would not advocate. The JVC recommends the prohibition on the two-finger test and introduces a whole new chapter on what kind of medical protocol should be introduced to deal with rape survivors sensitively. Rather than moving towards a therapeutic jurisprudence, the ordinance re-inscribes the two-finger as a medical procedure, disregarding what Modi says in the early days of colonial medicine, that a doctor should never insert two fingers in the vagina without consent lest he be accused of sexual assault!

To unravel the costs of cut and paste jurisprudence, we must note that the consequences of clubbing together different forms of sexual assault in the same sentencing structure. Hypothetically speaking, if a person is convicted of an offence under section 375 (e) which holds that when any person ‘touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person’ without consent twice, then such a person could be sentenced to life (natural life) or even death. Assuming such an accused is tried by a “hanging” judge, you have a situation where there is no gradation made between different kinds of sexual assault in relation to severity and nature, viz., sentencing. What is to prevent more severe punishment to a hijra, found to be a repeat offender, given the colonial legacy of charactering certain kinds of bodies as “criminal types”? There are no provisions to provide fair treatment to, and prevent stereotyping of sexual minorities or women in the sentencing structure.

The only instance where such gradation viz., sentencing is maintained is in relation to marital rape. Hence, section 376B IPC holds that ‘whoever commits sexual assault on his own wife, … shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine’. The ordinance is clearly protection of husbands, even those husbands who rape their ex-wives. This is also evident in the section,describing repeat offenders, which clearly excludes husbands.

Section 376E holds ‘whoever has been previously convicted of an offence punishable under section 376 or section 376 A or section 376 C or section 376 D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person’s natural life or with death’. So the ordinance is clear that whoever else may get life imprisonment till s/he dies in prison or is hanged by the state, a husband should never be jailed for life or hanged. But the irony is, if a man accuses his wife of sexual assault, and if she is found to be a repeat offender by a court, she is liable to life or death penalty. One may argue that this is far fetched for why would a woman live with a man who has accused her of sexual assault but technically what this ordinance does, it makes wives vulnerable to sexual assault charges by their husbands and exposes them to prison sentences, if not death.

The cut and paste job gets even more bizarre for the JVC recommendations are added to s. 354 IPC rather than displacing the colonial law on outraging modesty. Section 354 (a) describes sexual harassment (gender neutral offence), section 354 (b) describes any person forcibly disrobing a woman, section 354 (c) describes voyeurism (victim is woman here) and section 354 (d) describes stalking (gender neutral). And section 509 IPC, which should be made redundant is retained.

It does not make sense to retain the idea that something amounts to violence only when the modesty of women is outraged, and not the bodily integrity of all women, irrespective of modesty. This is the point behind deleting the past sexual history clause and fighting against the characterisation of survivors as habitués: please do not judge women by whether or not they are modest. What we wear, who we sleep with, where we go, what work we do—is not relevant to proving sexual assault.

And then mistakes of an exhausted and overwrought JVC find their way into the ordinance, yet another cut and paste jurisprudential disaster. In s. 370, which describes trafficking, we are told that:

“The expression “exploitation” shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the forced removal of organs.”

The JVC possibly forgot to add the words “exploitation of” prostitution, while mistakenly dictating the UN protocol 2000, going against the UN Protocol signed in 2011. The trafficking clause, due to exhausted dictating, criminalises all forms of sex work, including in trafficking voluntary and consenting sex workers who are now unionised and been fighting for right to live with dignity. This provision has been enacted in the name of fighting sexual assault—and is totally unacceptable. Perhaps the JVC should issue an erratum—and re-publish its 650 pages after careful proof reading!

What may one say about the absences—those are too many to list! We wanted radical jurisprudence, to emerge from our protests and unending hard work (and unlike others, we don’t need anyone to applaud us). Instead, what we got is amortifying cut and paste jurisprudential disaster. We cannot sleep tonight, wonder how the Ministry of Law finds sleep tonight!

Pratiksha Baxi is Assistant Professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University

10 Comments leave one →
  1. abdul permalink
    February 6, 2013 4:41 PM

    Thank you for your insights regarding the ordinance and the JVC. Sure the state has shown its spectacular ineptitude again by retaining Sections 354, 509 and marital rape. But why should that be a surprise. its an interesting process going on right now: the selective othering of the justice verma commission report and the ordinance, as if you and most other ‘indian feminists’ were not complicit in this process of law reform. And now you want expiation from your guilt by ranting against the ordinance and even the JVC, which was a holy cow till last week.

    First, you have talked of cut and paste jurisprudence, please give us examples of non-cut and paste jurisprudence adopted in India in the last 3 decades.

    Second, how is that you found that the trafficking provisions from the JVC (that criminalises sex work and that was fully incorporated in the ordinance) was because of ‘exhausted’ and ‘mistaken dictation’ and a problem of proof reading! While the mistake in the ordinance in not making the exception to marital rape gender-neutral was of course because of misogyny. Particularly strange, because the consequences of these two ‘mistakes’ are very different, JVC’s mistake will lead to devastation of a whole way of life, while the other is obviously going to be hardly used. (I wonder why such latitude to JVC, maybe because Vrinda Grover and other ‘indian feminists’ are fully complicit in the JVC process and in later celebrating it.)

    Third, even now the problem of increasing the age of consent to 18 by the 2012 CSA law is not given the importance its deserves, although you all know how such laws are used against young runaway couples and teenage sex. (Indeed Ms Grover was involved in drafting that brilliant 2012 law too) Flavia Agnes says such cases are one-third of all rape cases. The criminalising of two extremely vulnerable sexual practices: sex work and of sex of 16-18 years old is a direct result of this process of ‘law reform’. And you know whats common between the two: the word ‘sex.’ This reform is anti-sex and many of you took a long time to notice it and even now its only an afterthought, buried after many paragraphs of ranting against gender-neutrality. And you know why, because most of you have been working so long on this issue that the anti-sexual violence campaign has become an anti-sex campaign. You just don’t care that such flippant law reform criminalises sexual practices of vulnerable groups. If you scratch the surface, many of you will also be anti- teenage sex and sex work.

    Fourth, the word ‘hygienic’ was in JVC too. Why didn’t you criticise it until it was incorporated in the ordinance.

    Fifth, the definition of ‘lesbianism’ in Modi’s book has zero legal valence. Can you cite even one judgment where this has been quoted.

    Sixth, the two finger test etc was to be dealt with by a protocol even in the jvc and not by any statutory amendment. The ordinance has just followed that route. When you had no problem with the jvc’s recommendation on it, why now? JVC’s protocol can still be brought into effect. And aren’t the amendments in the evidence act on past sexual history something to note and celebrate here.

    Finally, you and many feminists have written many posts on the JVC celebrating it mostly. Why is it that the criminalising of sex work provisions too so long to be highlighted, until the sex work organisations led this outcry. Even now, you all are obsessed with the problem of gender-neutrality in rape law, (which is making a mountain out of a molehill) as opposed to focussing on the real disaster of this term ‘reform': criminalising huge swathes of the population.

    The feminist movement in India has blood on its hands. Once again the process of law reform in which they are involved has had its collateral damage. You play with fire and then claim your hands got burnt. (The problem is its not you who will suffer, but the sex workers and children who have sex. ) You, with your easy access to vigyan bhawan, are just another branch of the NAC. No wonder, you cannot sleep tonight! Maybe its time to watch ‘mandi’ again, 30 years later.

  2. blazzer permalink
    February 7, 2013 4:21 PM

    This is shocking… A committee that is appointed to draft a law for the whole country on a burning issue made so many stupid mistakes… that too just copy n paste work… did JVC draft this during their spare time or the after hours.. they did this with the same conviction a little boy would do his homework…

    • Anpadh permalink
      February 7, 2013 7:52 PM

      Blazzer, the JVC has done what it could. What have YOU done, in your entire life, that even comes close to what the JVC has done?

      • blazzer12 permalink
        February 18, 2013 4:07 PM

        Dear Anpadh,
        This is delegation gone wrong. Each one of us should do the best of what we can in our own frame of relevancy. I can’t possibly do something that is close to a national body consisting people with degree in law and what not. But that should not stop them from doing their best just because their contribution (irrespective of the quality) over shadows a common citizen’s contribution.

        By applying you view, the media has to fill in the politicians role and only then they can report.

        What grieves me is that JVC had a chance to rewrite the old and irrelevant law and reading from this article, they took it too lightly.

        Anpadh, the JVC could have done much better, the question is why didn’t they? What can be done to counter it? Does it take another horrific incident to correct (or better) these laws again?

        Cannot a common citizen ask these questions?

        —————————
        forgive my late reply

  3. sng permalink
    February 8, 2013 1:27 AM

    The more I read the ordinance the more I am confounded by its absurdities. It fails to abide by the rules of either an objective definition (those that carefully define specific violent acts in terms of body parts/ extent of touch/penetration etc) or subjective definition (those that require a mental state eg ‘sexual purpose/ sexual intent’) of rape. While it removes the Criminal Law Bill’s requirement of ‘sexual purpose’ (intention is irrelevant except as an exception it is ‘medical / or “properly” hygienic!) it simultaneously defines the constituent acts of sexual assault vaguely and expansively to include all kinds of physical contact. The results would be hilarious if they weren’t so terrifying. And so insulting.

    For example: Section 375 (e) states that [A person is said to commit “sexual assault” if that person ]…touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person …without their consent.

    So every police person (remember gender neutrality) who frisks one at the airport without permission (if one is over 18, and in all cases if one is under) commits (aggravated) sexual assault? And would be mandatorily punishable with 10 years [s.376 (2)]? What about accidental touches to these prohibited areas (remember “sexual purpose” is not relevant) ? By what logic can a touch to the (male (!) or female) breast be considered equivalent to the violent penetrative assaults (penis – vagina, penis -anus, object -vagina etc)? And if she does it again after being convicted she will get put away for life (without parole) and can get Death Penalty ?( sec 376 E Punishment for Repeat Offenders)

    Section 375 (c) states… manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such person or makes the person to do so with him (sic) or any other person
    So under this definition every breast feeding mother sexually assaults her baby?! (since she presumably manipulates parts of its body in order to cause penetration of her breast (part of her body) into the baby’s mouth (part of its body)? But a doctor who inserts objects or any other part of his/ her body (!) into any part of mine without my consent for an ostensibly medical purpose doesn’t?

    What if I suffer anal rape- would that be sexual assault ? Carnal Intercourse (s.377)? Both? Sexual Assault if I didn’t consent, but Carnal Intercourse if I did (since consent is immaterial)? Except if it was my husband when it wouldn’t matter? Oh wait… could he still be prosecuted for Carnal Intercourse since the marital rape exemption only applies to sexual assaults?
    If I sexually assault some one resulting in their vegetative state I could get the death penalty , but if I sexually assault some one as part of a gang, with the same result it’s 20 years?

    Every time I read it I come up with more bizarre scenarios– try it- it’s fun!

  4. February 10, 2013 11:12 AM

    1. Thanks abdul for your comments. I feel like pulling out my hair too but ranting is not very helpful, is it? As a feminist I was surprised at the extent that the Justice Verma Commission actually engaged with issues that affect all women whether in sex work or not. That stunned me. We knew the JVC report had a lot of problems but it had a lot of good things in it too. The main issue however is that GOI has done a googly on us, has it not?
    2. As long as it was a report – we treated it just as that. We have had many good reports todate – The Sacchar Committee report for instance. So we thought this is one such. We never expected GOI to make parts of it an ordinance so swiftly,cause parliament was going to be in session soon and we were concentrating sending submissions to the Rajya Sabha standing committee on the Criminal law [Amendment] bill.
    3. My question is in the larger context. Do we engage with the state or do we not? Knowing full well that we are governed by a state that is so upper caste/privileged class/dominant religion protective? Damned if we do and damned if we do not. That is the problem. Both by our own friends / fellow travelers and the state. That saddens me. Poor Vrinda and the feminist engagement, to be dumped with all the ills of the state, as if they did not know/comprehend it already.
    4. We need constructive criticism too. How to change the ordinance? Ideas anyone? The hoplessness of it gets me too but I am an optimist for my sins!!

    Meena Seshu,
    SANGRAM/VAMP
    Sangli.

Trackbacks

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