BBC Report : Anti Rape Law India
Karuna Nundy explains the Anti Rape Law
A bill containing harsher punishments for rapists was passed by India's parliament earlier in March. Karuna Nundy, a leading Supreme Court lawyer, explains the new laws.
Why change the law?
Reacting to the massive protests that followed the fatal gang rape of a student in Delhi last December, the government set up a panel headed by a retired judge to recommend legal reform and other ways to reduce sexual violence.
The Justice Verma Committee received 80,000 recommendations, held wide consultations and referred to laws and research from around the world.
Its report gave many women the audacity to hope that freedom from violence and constitutional equality would be reclaimed by and for women.
The new law is a combination of just thinking about gender and existing patriarchal attitudes in society, as well as those ingrained in the colonial Indian Penal Code of 1860.
It also reflects the government's desire to be seen as tough on crimes against women.
So "outraging the modesty of a woman" remains a legitimate legal standard, though some new crimes based on a women's right to bodily integrity and to be free of sexual harassment have also been incorporated.
A clearly defined rule should have been to penalise violent, coercive activity.
Instead, most marital rape is still legal, even the rape of a "married" child, aged between 15 and 18.
If an unmarried girl and boy of about 17 years have consensual intercourse, though, the boy risks being sent to a juvenile home for three years, reported for statutory rape by unhappy parents,unofficial caste-councils, or religious moral police.
The new laws are closer to addressing violence as women experience it.
New crimes include stalking, which is intimidating and often leads to assault, even murder.
Acid violence and disrobing, common now in India, are specific crimes.
Voyeurism - spying on a woman when naked or circulating her pictures without her consent - is a new crime.
The law also expands the definition of rape and says explicitly that the absence of physical struggle doesn't equal consent.
A major reason such a tiny percentage of crimes against women are reported is that the police don't let complaints through.
Now the security blanket that protected misogynist police officers and other public servants who failed to register complaints and compromised survivors' rights during investigations has been removed.
Compulsory jail time has been prescribed for the non-military public servant who fails to register a complaint or himself commits sexual assault.
Procedures for gathering evidence and the trial are a little easier on women now, and more careful of disabled people' rights.
Also, all healthcare providers must now give survivors of sexual violence or acid attacks free and immediate medical care.
There's a legal provision for compensation but the relevant governments have not set up systems to give survivors quick and adequate restitution.
Are the laws tougher?
The word tough can be a red herring: people often think it's about higher sentencing.
The new laws increase jail terms in most cases, and bring in the death penalty for a repeat offence of rape, or rape that causes coma.
We don't have comprehensive, long-term studies that measure the effect of higher sentences on the rate of sexual violence - but evidence from India and other countries shows that the death penalty is no deterrent to violent crime.
There's also a concern that if sentences are thought of as too harsh by the judges, the already high acquittal rate in cases of sexual violence will rise further.
Justice Verma criticised the way India is governed and said the public had been failed
Certain and swift justice is more likely to reduce crime.
Without comprehensive expansion of the criminal justice system it's unclear how fast rape and assault trials will be, but there's a hopeful amendment in the Criminal Procedure Code - that trials "as far as possible" be completed two months from the date of filing charges.
There are fears of false complaints, but the power to prosecute malicious complaints already exists under law.
Besides, a recent UK study released earlier this month by the Crown Prosecution Service says false cases of rape and sexual violence are much rarer than many believe and compromise justice for women who have in fact been raped, assaulted or harassed.
What about the age of consent?
The 'age of consent' is a misnomer and lead to all sorts of confusion in public and parliamentary debates. The age of statutory rape would be more accurate.
For about 30 years that age was 16 years. It was increased a few months ago to 18 years without much discussion by the Protection of Children from Sexual Offences Act, 2012.
There were those who thought keeping the age of consent at 16 years would be a social and moral endorsement of teenage sexual activity.
But the criminal law doesn't tell you to do this or that. Families, schools, society and free will do.
If two young people decide to engage in sexual intercourse with others around the same age, the truncheon of the criminal law is not the appropriate societal signal.
Now boys of 16-18 years or slightly older may be branded rapists if they have consensual sex with a girl of the same age and the judge will have no discretion in the matter.
This is against the "best interests" of teenagers, who weren't even consulted on this important decision, although India is a signatory to the UN Convention on the Rights of the Child.
A "proximity clause" is badly needed: one that clarifies that sexual intercourse between a teenager of 16-18 years with a person not more than four years older will not be criminalised.
Parents, schools and communities are free to impart their social values to children, whatever they may be.
What do the new laws not cover?
That the new laws only protect women from rape and sexual assault and not men and transgender people is a major failure.
The infamous section 377 of the Penal Code penalises "carnal intercourse against the order of nature".
Even if it survives a Supreme Court challenge, the law is limited, and doesn't have violence or coercion at its core.
The absence of a proximity clause means 18 as the "age of consent" criminalises intercourse between young adults that is neither violent nor forced.
Marital rape is still legal - unless the couple are separated.
Armed forces in "disturbed areas" are still effectively immune from prosecution for rape and sexual assault.
They benefit from the boys' club protections that are enhanced in situations of sanctioned violence, committed against communities they are seriously alienated from.
While in state and central legislatures politicians accused of crime may remain in office and benefit from the slow justice system until convicted.
What lies ahead?
The Justice Verma Committee report has laid out a comprehensive roadmap for women's constitutional equality - the panel was set up by the government, it should use that blueprint.
It includes police reforms, educational reforms, training of personnel in the criminal justice system, services such as well equipped rape-crisis centres.
The new amendments are only a start and a law is nothing if it's not enforced; but you have to have a law first. And for better or for worse, now we do.
#ParliamentWatch
Justice Verma Committee Report
AMENDMENTS TO CRIMINAL LAW:
Alchemizing Anger to Hope- Arvind Narrain in response to the report below
Alchemizing Anger to Hope- Arvind Narrain in response to the report below
Against Castration
to read the entire article visit Kafila
The most recent demands for castration can broadly be divided into two categories: popular and legal. Here we wish to problematize both, the legal and popular demands for castration by drawing out the reductive understanding of rape implicit in this demand; and by tracing the problematic notion of emasculation-as-justice driving this demand. We call for a suspension of the demand for castration on three broad grounds, listed here and discussed in greater detail below:
- The logic of castration as legal punishment locates the threat of rape squarely in the male body (specifically male genitalia), reinforcing the heteronormative paradigm of peno-vaginal penetration that feminists have been trying for decades to dislodge from Indian rape law.
- Such a punishment obscures the role of institutions in enabling and preserving rape. It also delinks sexual assault from structures of caste, class, sexuality and disability, which shape sexual violence.
- The popular demand for castration relies on a logic of emasculation (napunsak banana) that actually re-centers “good,” protectionist masculinity as the way to creating a safer environment in our communities.
PUBLIC NOTICE : JUSTICE VERMA COMMITTEE
Sexual Assault laws
Broadly, rather than viewing ‘sexual assault' as a mechanical substitute for ‘rape' under Section 375 of the IPC, the effort of rights groups has been to think through the feasibility of formulating a chapter on sexual violence/atrocity that will define a range of such violence in a manner in which the focus shifts from the penetrative logic of definitions hitherto used to the assaultive nature sexual violence.
That article here.
To contextualise what's happening in India within the context of international debates, we've invited our first Guest Post! It's from Megan Hjelle who's been researching this issue for the Alternative Law Forum, Bangalore.
Gender-Neutral Sexual Assault Laws - A Brief Summary Since the 1997 Writ Petition filed by Sakshi regarding amendments to India’s penal code regarding rape, gender neutrality has emerged as a lingering controversy. As currently written, India’s rape laws recognize the male/perpetrator - female/victim as the only framework within which rape can occur and regards penile-vaginal rape as the only “real” form of rape.
When the draft bill for amendments to the rape law was introduced with the intent of updating and expanding the laws into a spectrum of sexual assault offenses, few could have known that the topic would be such a lightning rod, pushing to the forefront fundamental contestations of the nature of gender itself. In an attempt to understand why the issue of gender-neutrality has been so uniquely contentious within the Indian context, the developments of gender-neutral sexual assault laws in other countries may provide some insight.
Rape law reform in countries such as the U.S., Canada, the U.K., Germany, and Australia produced, among other legislative developments, gender-neutral sexual assault laws. This note seeks to provide a brief summary of gender-neutral sexual assault laws along the following lines of inquiry:
- When did the shift to gender-neutrality occur?
- Why did the shift occur?
- What, if any, were the feminist stances in opposition and counter-responses?
- What impact, if any, have the application of gender-neutral laws had?
As most of the relevant data on the topic comes from research focused on the U.S., this summary will use the U.S. reform as its point of departure, with relevant comparisons to other nations with gender-neutral sexual assault laws as well.
Under the U.S. Model Penal Code, adopted by most U.S. states, rape was originally a crime that could only be perpetrated by a male on a female. The early Model Penal Code sex offenses were drafted under the influence of Kinsey’s research on sexuality. As well as creating a sexual offense hierarchy of severity, at the top of which was penile-vaginal rape, the drafters also required evidence of force in order to establish a rape. The drafters, fearing unfair prosecutions of defendants during a time when rape could still result in capital punishment, thought the evidence of force requirement would protect against false charges. Instead, it made successful rape convictions rare and re-victimized rape survivors by putting them on trial.
In the 1970’s, however, on the heels of the “Sexual Revolution,” the crime of “rape” was changed to “sexual assault” in an effort to de-emphasize the sexual elements of the crime and re-cast it as a crime of violence. The Michigan 1975 Criminal Sexual Conduct Statute served as a national model for implementing many of the rape law reforms that have now been adopted to some degree by most of the U.S. states. The reforms were largely a result of the feminist movement, which had as one of its fundamental objectives, the goal “to change peoples’ awareness and perceptions of violence against women.”
In comparison, Canadian rape law reform began in the early 1980’s and, in the U.K., sexual assault was not recognized as gender-neutral until 1994.
The development of gender-neutral sex offenses within the U.S. and elsewhere, is marked by a lack of direct discussion. This seems to be due to a confluence of factors relating to the goals of the feminist movement. At least one researcher has posited that “some extension of the coverage of rape laws was implicit in feminist objectives.” Feminists set out to “challenge the stereotyped assumptions about male roles and female sexuality” by “achiev[ing] comparability between the legal treatment of rape and other violent crimes, prohibit[ing] a wider range of coercive sexual conduct and expand[ing] the range of persons protected by law.”
Because feminists hoped to put an end to the phallocentricity of the laws as written and to emphasize the victim’s experience of violation, shifting the focus “from bodily harm to the protection of autonomy,” a gender-neutral law seems implied since, theoretically, it would capture more violative acts and would topple the hierarchy of penile-vaginal rape. Even at the time the Model Penal Code sex offenses were created, the drafters recognized the possibility that a gender-neutral approach “could also help to abrogate certain sex stereotypes that our society is appropriately beginning to address.”
Some researchers also identify as a factor changing social and sexual norms. For instance, one researchers posits that, social acceptance of oral and anal sex contributed to the shift toward gender-neutrality, while another attributes it to increased tolerance of more and difference types of sexual activity.
A researcher of Canada’s rape reform goes even further to identify gender-neutrality as merely a result of more primary reforms, rather than an end in itself.
Because, as suggested above, gender-neutrality may have seemed like a natural step in the feminist agenda rather than a focal point of the reform and as a result of practical reasons, the shift to gender-neutrality seems to have encountered little direct opposition in the U.S.
For instance, as previously mentioned, feminists had several linked objectives behind the reforms. Because of this, the rape law reforms were significant and numerous, with variations between states. So, states like Michigan made changes to remove the resistance requirement, remove immediate reporting requirements, shift the burden of proof, legitimize the victim’s testimony without corroboration, remove the marital exception, enact “Rape Shield” laws, provide an entire continuum of acts to be included under the term “sexual assault,” with gender-neutrality often being just one part of this array of reforms.
The single point of contention against gender-neutral sexual assault laws represented in the feminist literature seems to have developed retrospectively, rather than concurrently with the reform. And, in fact, that argument is best distilled and articulated by a recent argument in opposition of any gender-neutral amendments in Indian legislation:
There seems to be a presumption that if women can be framed as violators, then the trauma of rape for women as victims would be reduced and the stigma attached to the offence would peel off.
The response to this contention pivots between the arguments that gender-neutral terms do not preclude a gendered response to sexual assault, nor does it erase women’s experiences of sexual assault to include men. In also highlighting research indicating the trauma experienced by male victims of sexual assault, one researcher succinctly counters:
A principle of criminal law is, surely, that all persons should be protected equally from harm of like degree.... The case for treating crimes of like heinousness similarly appears to be stronger than that calling for a distinction to be made between penetration of the female body and penetration of the male body, whatever the sex of the actor.
Although some have tried to argue that gender-neutral laws have impeded the progress of rape law reform in combating sexual assault by introducing male victims, this argument does not seem corroborated by significant research. In fact, the majority of research shows that introducing gender-neutral laws and the rape law reform in general, have not had either a significantly positive or a significantly negative impact on sexual assault in the U.S. as of yet.
In conclusion, gender-neutral sexual assault laws were brought about during a period of intense legal reform initiated by feminists during the 1970’s to 1980’s in numerous nations and states as an attempt to trouble gender stereotypes and biases. There is an ongoing debate regarding the benefits and detriments of gender-neutrality to feminist goals, but research shows that the rape law reform has had little significant statistical impact on sexual assaults.
Megan is a second-year law Brooklyn Law student committed to providing advocacy and representation as a public interest lawyer. Her work is rooted in an interest in the ways globalization, migration and gender perpetuate and subvert each other. Megan has worked with the Coalition to Abolish Slavery and Trafficking in Los Angeles, where she helped match trafficking survivors with services and coordinated trainings to promote the identification and referral of trafficked individuals. More recently, Megan has worked at the Safe Horizon Anti-Trafficking Program. There, she developed and implemented a media outreach plan, helped maintain and strengthen international partnerships, coordinated trainings and worked on clients’ T-Visa and Asylum applications. Megan hopes to combine her background and legal education to facilitate a holistic, community-centered approach to advocacy for underserved populations and is currently pursuing these goals in an internship at the Alternative Law Forum in Bangalore.
What is important is that women are made aware of what their rights would be if the law is passed- Kalpana Sharma
The enhancement of the sentence of former Haryana DGP S.P.S. Rathore, charged with molesting 14-year-old Ruchika Talwar, from just six months to one and a half years, is a very small step in rectifying the glaring anomaly in the law that allowed him to almost get away with a serious crime. In the absence of the popular furore over what happened, and the determined efforts of the young woman's friends and family, it is possible that Rathore would have continued to hold office and escape the jail sentence awarded to him. But even as many will believe that 18 months is hardly adequate punishment for a crime that led to a young woman taking her own life, the sentencing is the beginning of an important process of change in our antiquated laws dealing with sexual assaults of all kinds.
Ruchika's is only one case. There are hundreds of such cases in India that never reach the point of conviction. And many more incidents that are never even reported. But because more such cases are coming out in the open, the demand for a change in the law has built up to the point that the government has finally taken note.
New Bill for Sexual Offence:
The proposed law makes it mandatory to end the trial of cases relating to sexual offences within a 6 month period.
The new law proposes:
Sexual abuse is defined to include not just physical but also mental harassment. Punishment for both to be similar.
Sexual abuse to be treated on par as rape, which means punishment for both to be equally stringent. Until now, maximum punishment for sexual abuse is one year.
Onus to prove that suicide was not due to sexual harassment lies with the accused.
All cases of sexual harassment to be dealt with special courts and cleared within 6 months to a year.
links:
toi,
dna
RUCHIKA
After 19 years and 450 hearings, though convicted for molesting Ruchika, a 14 year old school girl and a tennis player, SPS Rathore is still smiling. The victim drank poison 16 years ago and killed herself, when she lost all hope for justice.
The victim instead of finding support and sympathy, finds herself being ostracised by a peer group that does not understand what’s happening.
With her story now the focus of a national debate, Ruchika's friends and family want you to help in their fight for justice. For her death anniversary this year, they have launched an online campaign at joinaradhna4ruchika@gmail.com
"I feel that Ruchika is still alive in every girl who is being molested, and violence against women. I request you to join us ... . I am launching a fight against molesters and against this system, also for fight for justice for my friend Ruchika" says Aradhana Parkash Gupta, who, as a teen, witness Ruchika being molested by a senior police officer in Haryana. Since then, Aradhana and her father have led a campaign to ensure that the policeman, SS Rathore, pays for assaulting a 14-year-old and then harassing her family, driving her to commit suicide.
"I feel that Ruchika is still alive in every girl who is being molested, and violence against women. I request you to join us ... . I am launching a fight against molesters and against this system, also for fight for justice for my friend Ruchika" says Aradhana Parkash Gupta, who, as a teen, witness Ruchika being molested by a senior police officer in Haryana. Since then, Aradhana and her father have led a campaign to ensure that the policeman, SS Rathore, pays for assaulting a 14-year-old and then harassing her family, driving her to commit suicide.
more links:
http://www.indianexpress.com/news/Fresh-FIRs-filed--new-law-coming-on-sex-offences/561321
9/9/2010:
Rathore denied bail:
http://www.hindu.com/2010/01/09/stories/2010010957410100.htm
http://www.telegraphindia.com/1100109/jsp/nation/story_11963036.jsp
REPORT STREET HARASSMENT : TAKING LEGAL ACTION
video sourced from here
Eve teasing maybe perceived as a 'joke or a prank', but it is also recognized as a criminal offence. Aarti Mundkur, Alternative Law Forum, Bangalore, answers our questions on what one can do towards taking legal action when 'eve teased'.
1. All about FIRs and procedure to lodge one.
An FIR (FIRST INFORMATION REPORT) is the complaint that a person lodges at a police station, reporting the incident that is alleged to have occurred. It is the first information that the police receive regarding the commission of a Cognizable Offence, hence First Information Report.
An FIR can only be lodged at a police station. At every police station there is an officer designated as an SHO (Station House Officer) whose job it is to lodge FIRs. Usually, FIRs are lodged at the police station in whose jurisdiction (geographical area that comes under the purview of that police station) the offence has occurred.
It is preferable to lodge the FIR in the jurisdictional police station. If that is not possible, you will have state why, and the police will forward the the FIR to the concerned police station for investigation.
An FIR may be given in writing or orally. Your complaint in writing is reduced to the basic facts and put into a standard format of the FIR. You are entitled to read it make changes etc and also get a copy for yourself FREE OF COST. If you orally lodge a complaint, which the police officer writes down, please read it and make sure that it is accurate.
You have the right to lodge an FIR, irrespective of the circumstances that surround the particular incident. Clothes you are wearing or being out late cannot be reasons given to you for not lodging an FIR. In the event that the officer does not lodge your FIR, you can ask the Inspector of the police station to do so. If that fails, get in touch with the Circle Inspector. Finally, the office of the Commissioner of Police can also lodge an FIR and forward it to the concerned police station. So, in the event that the SHO refuses to lodge your FIR you can work your your way up the hierarchy, and ensure that it is.
It is not necessary that you should name the person you are accusing. It is very common to not know who the person is. If possible try and get a name or a good description. An FIR can be lodged against anyone, including public servants.
Procedure to lodge an FIR.
An FIR should have the following details-
1) a detailed description of the incident- date, time, place included.
2) If you know the accused- then his name and address. If not, as close a description as possible.
3) You must also put down exactly what happened. E.g. If you were felt up- how and where.
2. Do I have to report the incident only to another male officer?
there are all women's police stations that one can complain at. There is one close to the Corporation (Ph: 22290228/ 222 16242) However it is not mandatory for all police stations to have women officers.
3. How long does the whole procedure take? What am I getting involved in by lodging an FIR or reporting the 'eve teaser'?
Lodging of an FIR does not take very long, maybe a few hours, at the most. By lodging one, you are putting the criminal justice mechanism into motion That is, you are asking the police to begin investigating the incident that you have reported. It is then the job of the police to investigate, arrest, take down statements etc. You may be called by the police to identify the person/s they have arrested. The police then have to file what is called a chargesheet and then the case goes to trial before a judge, where you will be the primary witness, along with others, if there are any. It is difficult to say exactly how long this whole process takes. But one can safely say that it will be at least a few months- 4 or more, for the case to actually go to trail before a judge.
4. I think I was eve teased. This guy just looked at me in a way that made me feel sick. How can I take any action against it? I don't even know who he is. What constitutes as sexual harassment in the streets? What according to the law can be seen as 'eve teasing' or street sexual harassment? Is it looking, staring, and groping, stalking? What can police do to the perpetrator/ eve teaser? How is he punishable?
Section 354 of the IPC- requires that there be assault or criminal force used intending to outrage the modesty of a woman or knowing that it will outrage her modesty. A person found guilty can be imprisoned for a maximum period of 2 years, or with a fine, or both. So, under this section a 'look' may not be enough to constitute an offence. For more details look at Section 96 of the Karnataka Police Act.
Section 509 of the IPC is broader in its purview. It includes words, gestures, sounds or exhibition of objects with a view to insult the modesty of a woman. It also includes the words “intrudes upon the privacy of a woman”. The offence is punishable with a maximum imprisonment for one year, or a fine, or both.
In the case of both these provisions, it is difficult to say what exactly constitutes an offence. Courts have held that whistling, passing comments about a woman's body, singing songs etc, come under S.509. In any case, a 'look' that makes you uncomfortable may be very difficult to establish as an act that outrages your modesty.
Groping and stalking are definitely acts that come under the purview of both sections.
What is important is that neither section uses the explicit words eve teasing or sexual harassment. Although the latter is what the sections are trying to address. The focus is on the modesty of the woman.
6. Which police person can I complain to? Can I complain to the traffic police?
If you intend to initiate a criminal case you must lodge an FIR at the police station. The traffic police can assist you in reaching the police station or if they have witnessed the incident can be made witness. Sometimes it may be enough to create a scene by getting the traffic police involved and causing embarrassment to the man.
7. If I report him, how do I protect myself after that?
Its unlikely that you will need any kind of protection. Once he is arrested, he will have to get bail before he gets out of jail. You can ask the police for protection, if there are threats etc that are made. Bail may even be canceled if there are threats etc being made to the complainant.
