Sexual Violence Against Women: Issues and Challenges

Megha Purohit

Megha Purohit

Megha Purohit is a budding lawyer
Megha Purohit

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Sexual violence against women in the form of rape has become regular news (including some gruesome incidences of child-rape that have been reported). Keeping in mind the recently reported cases at Unnao, Kathua and Indore, the President has enacted the Criminal Law (Amendment) Ordinance, 2018. This article discusses the issues and challenges faced by women and the recent criminal law ordinance.

“We, the women of the original peoples of the world, have struggled actively to defend our rights to self-determination and to our territories which have been invaded and colonized by powerful nations and interests. We have been and are continuing to suffer from multiple oppression; as indigenous peoples, as citizens, colonized and neo-colonial countries, as women, and as members of the poor classes of society. (…)”  

(Beijing Declaration of Indigenous Women, adopted at the NGO Forum of the Fourth Women’s Conference, Huairou, 1995)

Every morning, one can find newspapers flooded with incidents of criminal acts being committed against women; it has become something very much quotidian. We are no longer shocked and do not react with horror while going through these news pieces. It has become a usual thing.

Aligned to this, a horrific and gruesome incident happened in Kathua district of J&K whereby an eight-year old minor was raped, assaulted and killed by those who claim to be in so-called authoritative positions. It was a clear example of anger and power assertive rape,[1] where perpetrators wanted to create fear in the Bakerwal community. However, it became more shocking when it started taking the shape of a political vessel and religious blasphemy.

In such an orthodox and stereotyped society, women have been the prey of social turbulence, which has assumed various forms such as humiliation, harassment and torture (both physical and mental), in the most egregious ways despite prevailing stringent laws.[2] After the Nirbhaya incident, an attempt was made to enact harsher laws through Criminal Law (Amendment) Act, 2013.[3] Although, the law-enforcing agencies have done a commendable job, people are still entangled in the ‘web of patriarchy’. Patriarchal societies provide a strong background to felonies coming under this category. Moreover, the apathy of people and lack of safety at public places has given rise to such incidents occurring more frequently.

Nevertheless, the most agitating facet is that people are polarizing the incident by using the weapon of religion. This is of utmost concern because its long term impact can be devastating. This propaganda can be as harmful as was the 1994 Rwandan mass rape and violence against women belonging to the Tutsi group. For 100 days Rwanda witnessed genocide and rape was employed as one of the methods of ‘genocide’ targeting the particular community, which resulted into massive human rights violations in the country.[4][5] It is now a high time to change the mentality, prevent dissemination of hate ideology and to stop waiting for justice to be delivered, irrespective of the caste, social status or religion of such perpetrators.

Criminal Law (Amendment) Ordinance, 2018

In the wake of incidents which happened in Unnao, Kathua and Indore, an ordinance was promulgated by the President in lieu of Article 123 of the Constitution[6] on April 21, 2018 and thereby, some new provisions for enhanced punishment were introduced in Criminal laws and Protection of Children from Sexual Offences Act (POCSO), 2012.

Some notable aspects of the Ordinance are-

  • Minimum punishment for rape enhanced from 7 years to 10 years;
  • By amending section 376, minimum punishment for rape of a girl under 16 years has been enhanced from 10 years to rigorous imprisonment of 20 years which may extend up to Life Imprisonment and a fine whereas under section 376DA, punishment in case of gang rape of a girl under 16 years would be of life imprisonment and a fine;
  • A new section 376AB has been inserted in the Indian Penal Code, 1860 whereby minimum punishment for rape of a girl under 12 years would be rigorous imprisonment of 20 years which may extend up to life imprisonment and with a fine or with death whereas under section 376DB, punishment in case of gang rape with a girl under 12 years would be of life imprisonment and a fine or with death;
  • Anticipatory bail shall not be granted in case of rape or gang rape of a girl below 16 years;.
  • Time-period for investigation in rape cases has been reduced from three months to two months;.
  • Appeal against the sentence of rape shall be disposed off within six months.

Food for thought

Undoubtedly, the administration of criminal justice system has started assuming a ‘victim-centric’ approach. However, much effort is required in providing justice to victims.

A huge lacuna that is discernible in our country is that in cases of sexual assault, we do not work on the principle of “Prevention is better than cure” rather we first wait for something to happen and then react to it. It is only after witnessing some previously unheard form of sexual assault, we try to penalize it and here lies the potential dilemma, which asks for rectification. In the light of growing incidents, public outrage, media coverage and statements made by our politicians will have the least impact.

Moreover, enacting multiple laws will not yield a successful solution because without their implementation, they are toothless laws, ineffectual in serving justice. Death sentence has not always been proven to be successful in deterring criminal behavior. The instances of recidivism exist to a great extent in our country. Therefore, we need to think out of the box and it must be realized that the safety of a girl begins from her home itself because in most cases, the perpetrator is someone who has access to the victim such as a close friend or family. So, it becomes imperative to ensure that homes are safe spaces and thus, primary responsibility lies on parents themselves.

In order to bring awareness and behavioral changes among children, laws relating to rape and sexual harassment should be introduced at school level and children should be encouraged to have discussions with their parents, teachers and friends. Further, children should be trained in self-defence so that in case of emergency, they can exercise their right to private defence. Also, public transport should be fitted with a sufficient number of CCTVs so that the identification of perpetrators can be easily ascertained. Furthermore, more female police officers should be deployed.

At an academic level, research, publications and opinions can be a useful tool in tackling the issue of rape. As per some researchers, ‘Objectification theory’ can be a method by which ‘sexually objectifying environments’ (where women are considered as mere objects  for doing sexual acts) can be understood through research and intervening into women’s lives. It becomes imperative for understanding the previous experiences of a woman in socio-cultural context.

Conclusion

‘Rape’ is not just a crime against an individual but the society as a whole. It is horrendous and inexcusable, irrespective of its form or any mitigating factors, whatsoever. It doesn’t just scar an individual both physically and mentally but it also encourages the society to adopt regressive measures like child marriage, purdah and confining women to their homes and putting shackles on their freedom to assure their safety. Rape impedes the progress of a society and the nation as a whole. Safety of women has always been one of the benchmarks of progress for any nation and by failing to provide the same we are failing as a nation. It is high time that we remedy the situation and bring a change in our mindset towards women. With this hope, we wait to see a change in the current scenario, otherwise, it would be too late to assure the safety and dignity of women.

End Notes-

[1] A Power Assertive rapist is classified as someone who has an extreme sense of superiority and entitlement. He will rape women simply because he can. For him, rape is a way of validating his masculinity. This is what men do, according to him.

“Profiling Rapists”, Forensics Talk Weblog

http://harfordmedlegal.typepad.com/forensics_talk/2006/09/profiling_rapis.html

[2] A few relevant sections of the Indian Penal Code (IPC) that deal with crimes and punishment for such crimes against women are:

Sections 375-377 of the Indian Penal Code deal with Rape and Unnatural Sexual Acts. Before the Criminal Law (Amendment) Act, 2013 Section 376 of the IPC stipulated a minimum punishment of seven years with fine for Rape. It could extend to life imprisonment. Section 376(2) provided the situations (like gang rape) where the quantum of punishment will be very high and  will include rigorous imprisonment, not less than a term of 10 years.

Similarly, Section 366  provided for a term of up to 10 years in prison for kidnapping, abducting or inducing woman to compel her marriage.

Section 366 A provided for a term up to 10 years in prison for forcing, seducing or inducing a minor girl (under 18 years of age) to indulge in illicit sexual intercourse.

Sections 372 and 373 provided a term up to 10 years in prison for buying and selling minors for prostitution.

Refer: Indian Penal Code, 1860

http://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860

[3] A few significant changes have been made in the Penal Code which are progressive and women-oriented. A new crime was introduced in the penal code, which had existed for a long time but was not identified per se in the IPC- ‘Voyeurismwhich means the recording or viewing images, movies or any such media material without the permission of the person portrayed or screened in them would result in penal punishment. A ‘voyeur’ is defined as “a person who derives sexual gratification from the covert observation of others as they undress or engage in sexual activities. The inclusion of voyeurism as a crime under the Indian Penal Code has made sale of pornography, invasion of privacy and all forms of sale of defamatory pictures prohibited.

Section 53A of the Indian Evidence Act was introduced making it explicit that in a trial where there was sexual assault or rape then the evidence supplied relating to the victim’s previous sexual experience or even for a matter of fact her ‘character’ would not be admissible in the court of law. The new law protected defamation of the woman and rights of the woman to live with dignity. There was also an introduction of sexual harassment at workplace (under section 354 of the IPC in addition to the Sexual Harassment at Workplace Act, 2013) and an enhanced definition of rape provided for in the amended law. The earlier legislation had focused on coercion and the fear of death or hurt of someone close to her as an example of force exerted or lack of consent when there was commission of rape. Another example of deceit which culminated into the act of committing rape was commission of false marriage.

Refer for detailed article: Academike– Articles on Legal Issues, Lawctopus, “Comparison and critical analysis of the rape laws before and after the Criminal Law Amendment (2013), Satwik Singh, February 3, 2015

https://www.lawctopus.com/academike/comparison-critical-analysis-rape-laws-criminal-law-amendment-2013/

[4] Poloni-Staudinger, Lori; Ortbals, Candice D. (2012). “Rape as a Weapon of War and Genocide”. Terrorism and Violent Conflict: Women’s Agency, Leadership, and Responses. p.21 Springer. ISBN 978-1461456407.

[5] Eftekhari, Shiva (2004).Rwanda, Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda. Human Rights Watch. p.7

[6] Article 123 of the Constitution deals with the Power of President to promulgate Ordinances during recess of Parliament. Article 123 provides that-

  • If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require
  • An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance-
    • a) shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
    • b) may be withdrawn at any time by the President Explanation Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause

Additional References:

  • The Criminal Law (Amendment) Ordinance, 2018, PRS Legislative Research,

http://www.prsindia.org/billtrack/the-criminal-law-amendment-ordinance-2018-5232/

 

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