DELHI – Protest by women’s groups at Jantar Mantar @April22 #Vaw #Rape


 

Since the December 2012 gang rape case in Delhi, many cases of violence against women and girl are being reported with frightening regularity. The shocking incident of sexual assault and brutalization of the 5 year old girl in Delhi and that of the 6 year old girl raped and murdered in Aligarh are the two recent ones that have been reported. Over and over again, the police has failed to discharge its duties and has proved itself to be corrupt, ineffective and often violent.

In case after case, women, their relatives and supporters continue to be harassed and those protesting inaction of the police are being thrashed. In the Delhi case, we protest the calculated delay in filing an FIR, attempt at bribing the family and the audacity in assaulting the woman protester. We also protest the physical violence perpetrated by the police in Aligarh on women protestors, as well as the insensitive remarks of the SSP (Aligarh), Amit Pathak about the little girl who was murdered. Suspending police personnel is mere eyewash and NOT enough! We have to make sure that all those who have attempted at subverting justice are chargesheeted and dismissed. We have to hold police personnel accountable under the various provision of the newly promulgated Criminal Law (Amendment) Act 2013. We also demand that police reforms be initiated and put in place.

Friends, comrades join the protest organised by women’s groups and progressive groups on Monday 22nd April 2013 at 12.30 pm at Jantar Mantar.

Mobilise and come in large numbers. Bring your banners and placards.

In solidarity,

HUMANS

 

Strong anti-rape law for India as President Pranab clears the Bill #Vaw #Womenrights


 NEW DELHI, APRIL 3, 2013 | PTI

An anti-rape protester

An anti-rape protester
President Pranab Mukherjee has given his assent to the anti-rape bill which provides for life term and even death sentence for rape convicts besides stringent punishment for offences like acid attacks, stalking and voyeurism.Mukherjee accorded his assent to the Criminal Law (Amendment) Bill-2013 on Tuesday, brought against the backdrop of the country-wide outrage over Delhi gangrape , and it will now be called the Criminal Law (Amendment) Act, 2013, an official release said on Wednesday.The law, passed by Lok Sabha (lower House of Indian Parliament) on March 19 and by Rajya Sabha (upper House of Indian Parliament) on March 21, has replaced an Ordinance promulgated on February 3.It amends various sections of the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act.

With an aim of providing a strong deterrent against crimes like rapes, the new law states that an offender can be sentenced to rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to life, meaning imprisonment for the remainder of the convict’s natural life and with a fine.

It has provisions for handing out death sentence to offenders who may have been convicted earlier for such crimes.

The law, for the first time, defines stalking and voyeurism as non-bailable offences if repeated for a second time. Perpetrators of acid attack will attract a 10-year jail.

It also defines acid attack as a crime besides granting a victim the right to self-defence. It also has provisions for imposing a minimum 10-year jail term for perpetrators of such acts.

The law has fixed age for consensual sex at 18 years.

New sections to prevent stalking and voyeurism were introduced following a strong demand from women’s organisations.

The amendments seek to define and prescribe punishment for the offences of stalking, voyeurism and sexual harassment.

The law also seeks to widen the definition of rape, broaden the ambit of aggravated rape and enhance the punishment for such crimes.

It also provides that all hospitals shall immediately provide first aid and/or medical treatment free of cost to the victims of acid attack or rape, and failure to do so will attract punishment.

It has provisions for a minimum imprisonment of seven years which may extend to imprisonment for natural life, and a fine for rape convict if he is found to be a police officer, a public servant, armed forces personnel or management or hospital staff.

The law also seeks to amend the Indian Evidence Act to allow a rape victim, if she is temporarily or permanently mentally or physically disabled, to record her statement before a judicial magistrate with the assistance of an interpreter or a special educator. It also has provisions to video-graph the proceedings.

 

#India – Crimes of exclusion in the new Law #LGBT


Siddharth Narrain : Fri Mar 29 2013, IE

It is anger on the streets that brought the neglected issue of sexual violence back to the forefront, energised a government-appointed committee to put together clear and well reasoned recommendations on law reform and forced the government to table the Criminal Law (Amendment) Bill, 2013. It is public pressure and years of struggle by the women’s movement that is reflected in the more progressive parts of the bill, passed recently by both Houses of Parliament. Unfortunately, despite unanimity across large sections of society that the definition of rape cannot be restricted to an outdated understanding of rape as perpetrated by men on women, the version of the criminal law bill that was finally passed by Parliament retains this language. In this form, the law is a betrayal of the rights of millions of transgender persons, intersex persons and sexual minorities not born as women.

The current bill is contrary to the recommendations of the Justice Verma Committee report, the most comprehensive document on rape law reform in recent times. The Justice Verma Committee had heard a number of women’s rights and LGBT rights activists before framing their nuanced recommendation that the law on sexual assault and rape be gender inclusive as far as the victim/survivor is concerned and gender specific as far as the perpetrator is concerned, except for specific offences like custodial rape, where traditional gendered power dynamics could be overturned. Based on this understanding, the committee suggested that the term “person” be used for the victim/survivor of rape and sexual assault, replacing the term “woman”, and the term “man” be retained for the perpetrator of sexual assault except in a few specified offences.

This simple change in language would have brought under the purview of the law the numerous cases of transgender persons and men who are raped and sexually assaulted by men. This move would have recognised decades of struggle by the transgender community in documenting these abuses, including the pioneering 2003 report of the People’s Union for Civil Liberties (PUCL), Karnataka, on human rights violations against the transgender community. The report documented horrific and widespread instances of sexual violence against the transgender community in Bangalore. It observed that the brutal stories of abuse and sexual violence documented in it were really narratives of cruelty, causing trauma to the entire community and negating the constitutional claim of equal citizenship and protection for all.

It is the claim to equality that the Justice Verma Committee relied on when it stated that all sexual identities, including transgender communities, are entitled to be totally protected. The committee observed that the Constitution enables the change of beliefs and greater understanding, and is an instrument to secure the rights of sexually despised minorities. This followed from the committee’s understanding that the problem of sexual violence is not just one of penology, but is related to the constitutional guarantee of the right to equality. It is this same claim of equality that the Delhi High Court recognised in 2009 when it decriminalised homosexuality. Keeping in mind the violence faced by LGBT persons by both the police and non-state actors, the court read the right to non-discrimination in Article 15 of the Constitution widely, holding that the purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for not being in conformity with the generalisations concerning “normal” and “natural” gender roles.

It is deeply disturbing, then, that the government, ignoring the Justice Verma Committee recommendations on this point, has deemed it fit to retain the gender specificity of the victim/survivor, thus excluding the lived experience of violence of all those who are not born women. The pioneering feminist Susan Brownmiller, in her groundbreaking work on sexual violence, Against Our Will, written in the early 1980s recognised that sexual assault could hardly be restricted to forced genital copulation, nor was it an exclusively male-on-female offence. More than 30 years later, we must ask this question of our lawmakers and those reluctant to equate the sexual violence experienced by women with that experienced by transgender persons, men and sexual minorities not born women: Who is to say that the sexual humiliation suffered by transgender persons and men, and by those intersex persons and sexual minorities not born women, is a lesser violation of the personal, inner space, a lesser injury to mind, spirit and sense of self?

 

The writer is a lawyer with the Alternative Law Forum, Bangalore

#India- Facts and Myths – Criminal Law Amendment Bill, 2013 #Vaw #Justice #mustshare


FACTS AND MYTHS

THE CRIMINAL LAW (AMENDMENT) BILL, 2013,

PROPOSED BY THE GOVERNMENT

March 16, 2013

 

FACTS AND MYTHS

THE CRIMINAL LAW (AMENDMENT) BILL, 2013,

PROPOSED BY THE GOVERNMENT

March 16, 2013

 

The Justice Verma Committee (JVC) report was a landmark statement, applauded by all citizens, welcomed by all Political Parties. JVC was significant because it showed a mirror to the Constitution of India, and reflected its wise and just guarantees of women’s equality. Today the women and youth of India are looking with hope and expectation towards Parliament, and towards all Political Parties. We urge all Members of Parliament to pass a law upholding the spirit and letter of the Justice Verma Committee; to pass a law that makes a step forward in our collective struggle to end sexual violence in India.

 

 

Myth 1: The Criminal Law (Amendment) Bill 2013 is against men.

 

Fact: The new anti-sexual violence Bill is NOT against men. For our fathers, brothers, husbands, partners, neighbours and colleagues are men too. Are these Men in our lives not committed to seeking an end to the constant threat of sexual violence lurking around every corner? Yes, men must, and men do support this Bill. For this bill is against criminals. It is against the scourge of sexual violence, and seeks to prevent and protect our society from heinous sexual crimes like rape, molestation, disrobing and parading women or stalking.

 

We know that men too can be vulnerable to sexual attacks by criminal men. And we welcome the Bill’s recognition that both men and women can be victims of acid attack and provides protection to all ‘persons’ for these offences. But we further ask you, our Parliamentarians, to recognize that men must also be protected against the crime of rape and custodial rape committed by other men, and to change the definition of victim in section 375 and section 376 (2) to ‘person’ and not restrict victimhood in these instances to women alone. Men and women are and must remain partners in this battle against sexual violence. And all ‘persons’ deserve protection of the law against rape.

 

 

Myth 2: If the age of consent for sexual act is lowered to 16 years, this will encourage child marriage, prostitution and trafficking.

 

Fact: The age of consent for sexual relations in India has stood at 16 years for the last 30 years, since 1983. The age was increased without adequate public discussion in the Protection of Children from Sexual Offences Act, May 2012, 9 months ago, and later, in the hasty Criminal Law (Amendment) Ordinance of Feb 4th 2013. The JVC report recommends that it be retained at 16 years as it always has been in the IPC, to prevent criminalization of young persons for consensual sex. Women’s groups are merely asking for it to be retained at 16 years, rather than increase it unthinkingly to 18 years.

 

Retaining age of consent at 16 years does not mean social or moral endorsement or encouragement of teenage sexual activity. The law is not asking young people to do this or that. This is merely an acknowledgement that if two young people consensually decide to engage in sexual contact, we might want to teach them and educate them but we do not want to treat them instantly as criminals, or consign them to custody. For that is what ‘age of consent’ means – it means that a boy who has sexual contact with someone below the age of consent is committing statutory rape. If that age is now raised to 18, it means that boys of 16-18 years, or slightly older, will be held guilty of committing statutory rape if they have consensual sex with another person who is also between 16-18 years. In such cases, the judge will have no discretion under law and will be forced to place such boys in protection home (if under 18 years) or in jails (18 or above).

 

Indian society does not wish to treat as criminals and rapists young men and women who might engage in consensual sexual acts. For we must recognize that ‘criminalizing as RAPE’, the consensual acts of young adults, will make most vulnerable our young men, particularly those from marginalized communities. Third party complaints of statutory rape against young boys will force the Courts to condemn them to prison (if over 18) or protection homes for juveniles (if under 18) for committing no crime other than consensual sexual contact.

 

We must retain the age at 16 because raising the age to 18 years does not provide additional protection to young women against rape or sexual assault. It only serves to increase societal control over the lives and decisions of young persons, both young men and women. To protect their fundamental rights including the right to choice and sexual autonomy and agency, the law must keep 16 years as the age of consent for sexual acts.

 

Why should the age of marriage be 18 years and consent for sexual acts be retained at 16 years?

 

The age of marriage must be retained at 18 years. Marriage is a serious commitment and entails many long-term responsibilities of life, and it is appropriate to keep the age of marriage at 18 years. But there is no merit or useful purpose served by keeping one uniform legal age for every act of a human being. Studies, surveys and research conducted across India, including in rural India, all indicate that young people are engaging in consensual sexual activity between the ages of 16-18 years. The anxiety and legitimate concerns of parents on this count is real and valid. However, the answer to that lies outside the law – in education in schools and within families, and communication between the parents, teachers and young persons.

 

Retaining the age of consent at 16 years is only to ensure that when teenagers engage in consensual sexual activity, it does not lead to young boys being punished and imprisoned. Retaining age of consent for sexual contact at 16 years does not have any bearing or adverse impact on the efforts to prevent child marriage, to which we all stand committed.

 

In any case, marriage of persons under 18 years is legal and valid under the law. Consequently, sex between spouses, one or both of who may be between 16-18 years is not criminalized. Raising the age of consent to 18 years, treats consensual sex between married persons, one or both of whom may be between 16-18 years, differentially from sex between unmarried persons of the same age group. Tainting an unmarried boy of under or above 18 years with the stigma of criminality for consensual sex is unduly harsh and discriminatory, when compared with the legal status of a married boy of the same age.

 

Will the age of consent at 16 years lead to more trafficking and forced prostitution of women and children?

 

It must be emphasized that key to the definition of RAPE is the absence of consent of the woman. Each case where there is such absence of consent must be treated as a crime and punished.

 

In the case of trafficking and forced prostitution this issue of ‘consent’ whether at 16 or 18 is totally irrelevant. In cases of trafficking or forced prostitution, the consent of the girl or woman at any age is neither free nor voluntary; it is coerced and hence in the eyes of law does not amount to consent. The issue of age is irrelevant in all cases of trafficking and forced prostitution. As pointed out in the Justice Verma Committee Report, the police and other powerful forces are complicit in the crime of trafficking and forcing women and children into exploitative work. The 2013 Bill has special provisions to deal with Trafficking and we must ensure that these are rigorously enforced by the police.

 

Myth 3: The offences of Voyeurism and Stalking will trap innocent men.

 

Fact: The offence of Voyeurism as defined in Sec. 354C IPC, is very specific and pointed in scope and has no possibility of misuse or abuse. In villages, towns and cities, we know that the poor do not enjoy the luxury of a private bathroom in their homes. This makes the young girls and women particularly vulnerable to sexual abuse even as they perform routine activities of bathing, attending to the call of nature in fields and open public places. They are always fearful of men who may use this occasion to watch them or take pictures of them as they perform these private activities. The offence of Voyeurism will punish a man who watches or records a woman while she is in any private act where her private body parts may be exposed. This offence seeks to uphold the dignity of women and makes the violation of their fundamental right to privacy a crime.

 

Stalking: The crime of stalking takes a serious toll on the life of women. Gripped by fear and anxiety due to being repeatedly followed by a man, girls and women have been forced to drop out of education, quit jobs and even change homes to escape the stalker. The rape and murder of the young law student Priyadarshini Mattoo, is a grim reminder that if the stalker is not stopped, he can rape and kill. Stalkers are also known to throw acid on their victims, as a way to take revenge. By making stalking a crime, the law can actually prevent rape and other forms of aggravated sexual crimes and save innocent women from being brutally sexually assaulted or killed. The codification of this crime will fill an important lacuna in the present law.  Only in situations where a man repeatedly follows a woman, either physically or through the Internet and this causes her fear or distress, will the crime of stalking be recognised as such.

Related Articles

 

 

Amnesty wants #deathpenalty removed from anti-rape law


TNN | Mar 16, 2013,

Amnesty wants death penalty removed from anti-rape law
Amnesty International has urged the government to remove death penalty as a form of punishment from the anti-rape bill.
NEW DELHI: A day after the Union Cabinet approved the anti-rape lawAmnesty International has expressed reservations on the proposed legislation, demanding that provisions like death penalty and immunity for forces under AFSPA be done away with while including marital rape.Several contentious provisions that were part of the Criminal Law (Amendment) Ordinance have been retained in the new bill, like exclusion of marital rape and including death penalty for rapists-murderers and rapists who are repeat offenders.The human rights organization is in favour of age of consent being lowered to 16 years. In its recommendations, AI said Parliament should eliminate sanctions on consensual sexual activities between adolescents, while protecting all children against sexual abuse. “The law should protect the additional rights of alleged perpetrators under the age of 18 as stipulated in international standards,” it said in a statement advocating protection of juveniles’ rights.

Amnesty also said the Indian Penal Code should reflect the different forms of violence against women in a comprehensive manner by removing the exception for sexual assault by a husband.

The organization urged the government to remove death penalty as a form of punishment from the bill. It said Indian law should clarify that persons sentenced to life imprisonment for violence against women are allowed the same opportunity for executive/judicial review of their sentence as other prisoners in India. The law must also clearly eliminate sentences of life without the possibility for release for offences committed by persons under the age of 18.

#India- Not a ‘safe’ issue: Disabled women and sexual violence #Vaw #disability


By Shampa Sengupta & Saptarshi Mandal
sexual assault
For the first time in the history of sexual violence law reform in India, issues pertaining to disabled women are being flagged as important items on the reform agenda. Sexual violence against disabled women is rampant, both within the supposedly safe zone of the ‘home’ – be it familial or custodial – and without. A small number of cases manage to get reported and legal actions are initiated in these. But most of these cases that reach the courts end in acquittal. Some of the reasons behind the low rate of conviction are common to all rape cases: faulty investigation by the police, biased conclusions reached based on medical examination of the victim and the accused, general attitude of distrust towards the victim and so on. But there are also factors that are specific to the cases of disabled women, such as not recording the testimony of the victim during the trial or recording the testimony without following the procedure laid down in law, which weaken the prosecution case at the appellate stage and result in acquittal.

The Justice Verma Committee, constituted by the central government to look into sexual assault law reform after the Delhi gang rape and murder last December, gave many of us working on these issues an opportunity to place some of these concerns before the government. The Committee responded positively and a large number of its recommendations addressed difficulties faced by disabled women in accessing the legal system and navigating through the trial process. Among other things, the Committee recommended that the assistance of interpreters or special educators be taken at the time of recording of the complaint by the police and also during the trial, that the process of identification of the accused be videographed and that disabled women be exempted from recounting their testimony once again at the time of cross-examination in cases of sexual assault. The recommendations also addressed issues of sexual abuse within institutions for the disabled and suggested oversight mechanisms for both state and privately run institutions. The recommendations of the Committee were welcomed by women’s groups and disability groups, including the ones that we are associated with.

However, when the government hurriedly introduced the Criminal Law Amendment Ordinance just three weeks before the upcoming session of parliament, we were faced with a dilemma. The Ordinance, which was promulgated purportedly to give effect to the recommendations of the Verma Committee, incorporated a majority of the disability-specific ones. But longstanding demands made by the women’s movements such as recognising marital rape, rape by security forces, compensation for rape victims, rejection of death penalty as a punishment and such others, which were recommended this time around as well, were left out of the Ordinance. As activist and researcher respectively, we were familiar with the travails of disabled women within the legal system in rape cases. Hence we were acutely aware of the relevance of the disability-specific clauses in the Ordinance and were happy to have been part of the process which had led to those changes. But we were also politically aligned with the women’s movement and thus found it difficult to endorse the Ordinance, which had left out issues which were fundamental to reconceptualising sexual offences in a manner that protected the rights of victims of sexual violence.

Leading from the personal/ political dilemmas regarding our position on the Ordinance, we wondered if the disability-specific recommendations were so readily accepted by the state because disability was seen as a safe, sympathy-inducing issue that posed no threat to the established orders. Demanding that marital rape be recognised as an offence on the other hand, definitely threatened the gendered/ sexualised ordering of heterosexual marriage and family. Was this the reason, we wondered, why the two movements rarely spoke to each other in course of the sexual assault debates, although they raised similar questions pertaining to the body and violence, power and vulnerability? We also wondered if the predominantly service-providing nature of the disability sector was in any way responsible for it being viewed as a ‘safe’ issue? If for the state, disability was a ‘safe’ issue and gender a ‘disruptive’ one, then what did it mean for movement politics – the business of building alliances and solidarities across sectors while engaging with the state? And at a much smaller level, what did it mean for our own work where we try to think through both these axes of power and vulnerability?

While we still do not have clear answers to any of these questions, we want to flag some cautionary notes on sexual violence against disabled women and the legal response to the same. Protecting the rights of the disabled against sexual assault would require us to think beyond provisions for interpreters and special educators, and engage with the domain of power and sexuality as well. In the context of sexual assault law reform, one issue that has created sharp divides between the state and the women’s rights groups, women’s rights groups and the queer and child rights groups, and among the women’s rights groups as well, is the proposition of making sexual offences gender-neutral. In the year 2000, the 172nd Report of the Law Commission mooted the idea of substituting the words ‘man’ and ‘woman’ in Sections 375 and 376 of the Indian Penal Code with the word ‘person’ so as to bring instances of same-sex sexual assault and sexual assault on male children by adults within the scope of the law. The idea was rejected by a wide section of the women’s movement which argued that sexual offences took place within a framework of gendered power relations and the legal system which tried these offences was heavily biased against women. These realities, it was argued, cannot be wished away just by changing words in the law. Similarly, a number of lesbian women’s groups expressed concerns that in the absence of any affirmative legal recognition for same-sex relationships, a gender-neutral rape provision could be used by disapproving families to lodge false complaints against same-sex lovers.

In the last 12 years, several developments have taken place: decriminalisation of adult same-sex sexual acts by the Delhi High Court in 2009, greater public awareness and discussion about child sexual abuse, and much more documented evidence of sexual violence against gay, transgender and transsexual persons. With the result that by the time the government introduced the Criminal Law Amendment Bill in June 2012, there was agreement on certain things among the groups involved in these debates. Thus most groups agreed that victims of sexual assault must be defined in a gender-neutral manner so as to provide protection to men and transgendered persons, in addition to women. But the perpetrator should be kept as male alone, as making the perpetrator gender-neutral would weigh heavily against women. Thus the 2012 Bill, which proposed gender-neutrality with respect to both the victim and the perpetrator, was opposed by women’s groups as well as some queer groups.

Cut to 2013, and the Verma Committee recommended that rape be retained as a gender-specific offence and provided separately for same-sex sexual assault. However, despite strong opposition, the Ordinance stuck to gender-neutrality with respect to both the victim and the perpetrator, and till the time a new Criminal Law Amendment Bill is introduced and passed to replace the Ordinance, it remains the operative law.

Surprisingly, disability groups have not been part of these debates, though making sexual offences gender-neutral clearly has consequences for disabled women. A stereotypical view of disabled women, particularly those with intellectual or psycho-social disability, is that they are unable to control their sexual urges. (1) Such a view, historically propagated by the medical establishment, is prevalent among the police, doctors and judges. In the course of handling cases of sexual assault on disabled women, we have often heard the authorities sympathising with the accused based on the belief that ‘such women’ are prone to making sexual advances on men, and later charge them with sexual assault. In 2001, in a case where a speech- and hearing-impaired girl was raped by two policemen inside a prison van in Kolkata, the officer-in-charge had said to one of us that activists should not follow up in such cases. When asked why, he said it was common knowledge that disabled girls were ‘sex starved’ and it was the girl who had in fact attacked the policemen. More recently, in the course of inquiring about a case of sexual assault on a female inmate by a male staffer at a Kolkata mental health institution in April 2012, the superintendent of the institution told one of us that he himself was scared of going inside the female ward for fear of being ‘molested’. He even asked us if there was any law to punish such women who first molest/tempt and then complain against hapless men.

In such a scenario where such attitudes are presented as medical ‘truths’ and where authorities put the blame on the victims and their lack of sexual discipline, what might be the implications of a gender-neutral rape law, where even women can be made assaulters and men their targets? Court judgments reveal how disabled women’s accounts of sexual assault are treated with suspicion by judges. For instance, in an Orissa High Court case the prosecutrix was deaf and mute and had not revealed to anyone that she had been raped; it was discovered only when she became pregnant. The court, while granting bail to the accused observed that a case of consent on the part of the woman could not be ruled out since (a) the woman was about 30 years old and still unmarried and (b) she could have at least communicated it to her mother knowing that her mother would naturally be anxious about her marriage. (2) Again in Meeraj Alam vs State of Bihar, the Patna High Court kept on repeating throughout the judgment that “the victim girl was a grown-up lady who was unmarried because of such infirmity and that her younger sister was already married, having children from before”. (3) How were the marital statuses of the victims of any relevance here, unless the judges were trying to implicitly suggest that the women in these cases were sexually mature and yet were not ‘getting any’ because they were disabled and hence one should be suspicious about their motive? Earlier a standard defence by an accused in a rape case used to be that the woman (disabled or not) had consented to the sexual intercourse, which then would be proved with reference to her dress, conduct, sexual history etc. Now, if the perpetrator is made gender-neutral, whenever a disabled woman complains of sexual assault, the alleged assaulter might file a counter-complaint that it was he who was raped by the woman. And we have good reasons to believe that given the widely held view regarding disabled women’s hypersexuality, such counter-allegations by men would be believed and sympathised with, by investigators and adjudicators.

Thus gender neutral definition of the perpetrator in sexual offences, as is currently the case, is not in the interest of disabled women. The government is preparing to introduce a Criminal Law Amendment Bill 2013 soon to replace the Ordinance. From media accounts, it seems the government is undecided about the formulation of the offence in the final Bill. But whatever it is, it is about time that disability groups appreciated the implications of it, took a stand on this issue and made it known to the State.

Endnotes
1) An equally prevalent stereotypical view is that disabled women are asexual.
2) Deepak Mahapatra vs State of Orissa, 107(2009)CLT93
3) 2008 CriLJ 4384

(Shampa Sengupta is an activist working on disability and gender issues, based in Kolkata. Saptarshi Mandal is a legal researcher based in New Delhi.)

Infochange News & Features, March 2013

 

 

#India- Proposed criminal law makes acid attack, voyerism ,stalking criminal offences #Vaw


 

 

Cabinet clears Bill to tackle crimes against women

 

 

A man plays the guitar during a protest against the Dec 16 Delhi gangrape.A man plays the guitar during a protest against the Dec 16 Delhi gangrape.
A man plays the guitar during a protest against the Dec 16 Delhi gangrape.

 

 Agencies, march 14, 2013

 

 

A Bill providing for stringent punishment for crimes against women, including rape, and also defining acid attack, stalking and voyeurism as criminal offences, was today cleared by the Union Cabinet.

The Criminal Law (Amendment) Bill, 2013 also lowers the age of consent for sex from 18 to 16 years and makes ‘rape’ as a gender-specific offence under which men only can be charged for it.

The Bill, brought against the backdrop of the December 16 Delhi gangrape, provides for minimum jail term of 20 years for rape which may be extended to ‘natural life’ of the convict in jail.

There is also provision for death sentence if the victim dies or is left in a ‘persistent vegetative state‘.

Stalking, voyeurism have been defined as criminal offences in the bill. Sustained stalking will be a non-bailable offence.

The Bill had divided the Cabinet at its special meeting on Tuesday and was referred to a Group of Ministers (GoM) to sort out differences on various aspects of the proposed law.

The GoM finalised the draft yesterday amidst the government’s keenness to expedite the bill that will replace an ordinance promulgated on February 3.

The bill uses the term ‘rape’ which will be gender- specific, in contrast to the gender-neutral ‘sexual assault’ as proposed in the ordinance.

The bill also lowers the age of consent for sex from 18 to 16 years. In the ordinance, it was 18 years.

The measure, on the lines of the ordinance, has not touched on the issue of making marital rape a separate offence.

Women and Child Development Minister Krishna Tirath, who has been opposed to lowering the age of consent to 16 years, is learnt to have raised the issue again in today’s Cabinet meeting, sources said.

The issue of age had led to lengthy inter-ministry consultations with some arguing that it should not be reduced.

Sexual intercourse below the age of consent is considered statutory rape.

The government decided to drop the term ‘sexual assault’ and replace it with ‘rape’ following demands by women’s rights groups who had maintained that laws should be more gender sensitive than gender neutral.

Defining acid attack as a separate IPC offence, the bill proposes a punishment of not less than 10 years to a maximum of life imprisonment, the sources said.

Repeat offences of voyeurism, inappropriate touch, gesture and remarks have been recommended as non-bailable offences, they said.

Provisions seeking strong action against those filing false complaints were dropped from the draft bill yesterday as there was consensus in the GoM that existing provisions under the Indian Penal Code (IPC) were adequate to deal with such cases and it was only a matter of enforcing them, the sources said.

The other proposal in the measure is understood to be on replacing the provision in the ordinance which has prescribed life imprisonment as the maximum punishment for those in authority committing rape. Now, a person in authority convicted of rape will have to spend rest of his “natural life” in jail.

A person in authority has been described as a police officer, a personnel of the armed forces, a doctor or a staffer of a hospital, a jailer or a warden of a remand home.

A fresh proposal now makes it mandatory for all government and private hospitals in the country to provide free medical treatment to women victims of any form of sexual violence.

Hospitals and similar facilities will not have to wait for the police. They can straight away start treatment after informing the police.

The refusal to do so will now be a criminal offence and will attract a one-year jail term for senior functionaries and the staff on duty of hospitals found guilty of turning away victims of sexual violence needing immediate medical care.

The bill has to be approved by Parliament before its recess from March 22, failing which the ordinance it proposes to replace would lapse on April 4.

Against the backdrop of some parties such as the Samajwadi Party having serious reservations on certain provisions of the ordinance claiming they are prone to misuse, the government has convened an all-party meeting next week to discuss the bill cleared by the Cabinet today.

 

 

 

 

For the women of India, Parliament must speak #Vaw


FARAH NAQVI, The Hindu

The question Parliament must ask is, as it considers any new Bill, is which key Committee recommendations got left out.
The HinduThe question Parliament must ask is, as it considers any new Bill, is which key Committee recommendations got left out.

The House must ensure that the new Bill to replace the Criminal Law Ordinance consciously upholds the provisions and spirit of the Verma Committee report

A brave young woman died a brutal death in the heart of the nation’s capital. And Parliament must speak. Today. Tomorrow. Or, the day after. But speak it must. And in a unified voice of conviction and certitude, rising above the cacophony of political difference say No to violence against women. Not in mere words, howsoever strong and impassioned, but in deeds, in crafting into our statute books laws on fighting sexual violence that are overdue, that the nation demands, and that are truly just to women. After decades of slow momentum on women’s rights, India is poised on a cusp of change. It is now in the hands of parliamentarians to make that a reality. Let a voice reverberate from the halls of Parliament, sending a signal to India and to the world that our democracy is alive, that our democracy is good for women, and that this time the ramparts of patriarchy shall give.

History is littered with lost opportunities for change. Let this not be one of them. Today, scores of women across India, protesting on the streets, watching from their homes, writing in their blogs, alert with angry chatter on e-groups, speaking loudly in press conferences, strategising in quiet huddles — are saying the same thing — uphold the Justice Verma Committee (JVC) Report!

The task before Parliament is not simple. First there was the Criminal Law Amendment Bill 2012 (CLB), tabled in the Lok Sabha on December 4, 2012, and sent to the Parliamentary Standing Committee. The CLB 2012, crafted before the JVC was even constituted, was flawed and reactionary, flying in the face of repeated demands by women rights groups across the country. It was soundly opposed through scores of submissions to the Parliamentary Standing Committee. But even as the Standing Committee was considering its response, it was overtaken by events — the brutal gang-rape of the young woman on December 16, 2012, the constitution of the JVC on December 23, 2012, the quick submission of its report on January 23, 2013, and then, ostensibly, in response to national sentiment, in an act of haste and stealth — an Ordinance which was signed into law on February 5, 2013.

Now the Parliamentary Standing Committee, which officially considered the Criminal Law (Amendment) Bill, 2012, (and the Ordinance, 2013 as well), has submitted its report. And the Government of India is poised to craft a new Bill to replace the Ordinance. Sadly, the Standing Committee report does little to push the boundaries of our collective conscience, and one only hopes that the new Bill will.

While both the SC report and the Ordinance 2013 can claim to have incorporated parts of the JVC recommendations on points of law, the question Parliament must ask is, as it considers any new Bill, is: which key JVC recommendations got left out?

The list of omissions is illuminating. Both the Ordinance 2013 and the SC Recommendations not only retain the core of impunity for sexual crimes, they actually add to it.

ACCOUNTABILITY

What is impunity? A simple Thesaurus search will show up the following words — license, exemption, freedom, liberty, latitude and immunity. Centuries of impunity emboldens those who commit violence. It emboldened the men who mauled a young woman’s body. Yet, the Ordinance 2013, which is today the law of the land, has created laws on sexual assault, harassment and rape in which the accused is “gender neutral,” i.e. both women and men can be accused of these crimes. Does this sound right? Can we sweep away the painful, historical and contemporary reality of masculine violence against women in India — of women, stalked and raped by men in fields, homes and streets? Yes, in custodial situations, women can be perpetrators of sexual violence — no one who has seen images of Abu Ghraib should believe otherwise. But not across the board. Given the brute nature of gender-based inequities in India, the huge imbalance of power between men and women, the realities of rape across our towns and villages, is this the law that the women of India deserve?

For every complaint made against an offender, there now arises a real possibility of counter-complaints that will silence women even more than they are today. Which woman will brave the sceptical stance of the police and judiciary to seek justice when she herself stands to be in the dock, accused of the same crime as the offender? These are the questions Parliament must ask.

The SC report and Ordinance also uphold impunity of the police, keeping intact their licence to refuse to lodge FIRs, to smirk and scorn women who seek its help. The JVC report had recommended creating a new offence (166A) for public servants who disobey the law and proposing a mandatory minimum sentence. The Standing Committee supports inclusion of this offence but says ‘no’ to a minimum sentence. So, a rap on the knuckles is the only real deterrent we offer erring police. Parliament must demand full accountability from the public servants of this country — to ensure that they provide protection and ensure prosecution if women are violated; and Parliament must ensure that any new Bill on sexual assault and rape proposes a minimum sentence for erring public officials.

AGE OF CONSENT

And where will Parliament stand on age of consent? Will it stand up for the rights of the young men and women of India, who deserve the right to be young, and to not be criminalised? Or should we make them even more vulnerable to self-appointed moral guardians with medieval mindsets, to the khappanchayats, by making sexual contact with anyone between 16-18 years a statutory offence, as the Ordinance 2013 does and the Standing Committee upholds? Statutory offence means any third party can threaten young people with jail-time; it means a judge must convict them, even though the couple may beg and plead and say this was not a crime; it means harassment by police in inter-caste relationships; it means a powerful tool in the hands of the wrong people. If Parliament passes a Bill that criminalises consensual sexual contact with anyone between 16-18, India’s portrait will hang in the international gallery of shame.

There is more at stake — will the new Bill recognise marital rape? Or, make it obligatory on the State to provide reparations for victims? At the time of writing we do not know what the provisions of the Government’s new Bill will be. If it upholds the provisions and spirit of the Justice Verma Committee report, Parliamentarians must pass it into law, and as you thump your tables in approval, women outside will celebrate with you. This time, in memory of a young woman who died as no woman should, Parliament must speak for all the women of India. And this time the ramparts of patriarchy must give.

(Farah Naqvi, a writer and activist, is a member of the National Advisory Council. Views expressed here are personal. E-mail: farah.naqvi64@yahoo.com)

 

PRESS RELEASE- Gender Just, Gender Sensitive and NOT Gender Neutral Rape Laws #Vaw #Justice


Parliamentary Committee ignores Verma Committee

 

The report of the Parliamentary Standing Committee on the 2012 Criminal Law (Amendment) Bill as well as the 2013 Criminal Law (Amendment) Ordinance not only violates the letter and spirit of the Justice Verma Committee (JVC) recommendations but endangers and deepens women’s vulnerability in this country.

Representatives of women’s groups, democratic and human rights groups and activists are alarmed about the following major lacunae in current legislative protection to women, upheld by the Standing Committee report:

 

The Accused Must Be Male: One pernicious provision of the Ordinance 2013, upheld by the Committee report is blanket gender neutrality of the perpetrator of sexual harassment, assault and rape. Put simply: unlike in existing law where the accused is male, the Committee recommendations if enacted into a proposed new Bill, will make it possible for women to be charged with these offences. This is wholly unacceptable.

  • The Reality of Rape: It is an act of violence that must be seen in the context of deeply entrenched power inequalities between men and woman in our society.  Gender neutral provisions only strengthen those already powerful, silencing the real victims. The police and legal system are part of this inequity and bias against women, evident in the huge impunity for rape in our country. Recommending that these laws be gender neutral makes mockery of this reality.
  • The Chilling Effect: Apart from situations where women hold positions of statutory authority (like police officers, etc), in all other situations,  making the accused gender neutral means that complaints by women can be met with  counter-complaints to get them to withdraw. Given the current odds against women securing justice, the gender neutrality of accused in sexual violence laws, will have a deep chilling effect on women’s ability to even file complaints.
  • Men, not boys: There is no basis to the argument that gender neutral laws allow young boys to be protected from abuse, because all young boys and girls are fully protected by gender neutral laws in the Protection of Children from Sexual Offences Act 2012.

 

Age Of Consent Must Remain 16: The Standing Committee report endorses the 2013 Ordinance, by raising the age of consent from 16 to 18, thus criminalizing the consent of young persons and exposing them to unjust imprisonment by forcing judges to take action merely on third party complaints, including khap panchayats. At the very least, any proposed new law should allow for a Young Person’s Defence, where consent of young persons between 16-18 years is taken into account if there is no more than 4 years age difference between two consenting parties.

 

Rape Within Marriage Must Be Recognized As An Offence: Marital status must not have any bearing on the right of a woman to say no! The law must recognize when sexual assault and rape occur within marriage. Also, current IPC provisions recognizing rape in the context of judicial separation must be replaced by simple separation, given that most separated couples do not get judicial decrees, but simply start living apart. Without this change the law makers are only sending a signal that even while living apart from her husband, a woman can be raped by him without any recourse to justice.

We are also deeply concerned by the Standing Committee’s silence on ending impunity for sexual assault by security forces. The existing statutory immunity for armed forces ‘acting in the line of duty’ surely cannot apply to sexual assault committed on women. No sanction should be required to proceed with prosecution of such personnel in sexual assault cases.

As the 2013 Criminal Law (Amendment) Ordinance and the report of the Parliamentary Standing Committee enter into Parliament for debate, we urge ALL PARTIES aligned with women’s rights to ensure that laws made in the wake of the brutal Delhi gang rape case do not leave women even more vulnerable than they already are.

Date: 6th March 2013, signed by:

- Kalpana Mehta, Madhya Pradesh Mahila Manch, Indore

- Vrinda Grover, lawyer, New Delhi

- Farah Naqvi, women’s rights activist, New Delhi

- Kavita Krishnan, Secretary, AIPWA

- Madhu Mehra, Partners for Law in Development, New Delhi

- Chayanika Shah & Sandhya Gokhale, Forum Against Oppression of Women, Bombay

- Deepti Sharma, Saheli, New Delhi

- Kamayani Bali Mahabal,  Kractivist

- Nandini Rao, New Delhi

- Albeena Shakil

- Lesbians and Bisexuals in Action, Bombay- Lawyers Collective, New Delhi

- Kalpana Vishwanath & Suneeta Dhar, Jagori, New Delhi

- Gautam Bhan, New Delhi

- AALI, Lucknow

- Nirantar, New Delhi

- Karuna Nundy, Advocate, Supreme Court of India

- Seema Misra, Lawyer, New Delhi

- Ayesha Kidwai, GSCASH, JNU

- Prita Rani Jha, Peace and Equality Cell

- Women Against Sexual Violence and State Repression

 

#India Marital rape: Parliamentary panel supports government’s decision #Vaw #WTFnews


marital-rape-poster

By PTI – NEW DELHI

01st March 2013 08:38 PM

A Parliamentary panel today supported government’s decision not to accept marital rape as a criminal offence, saying it could lead to “practical difficulties”.

The Justice J S Verma Committee set up in the aftermath of the Delhi gangrape incident to suggest changes in the criminal law had recommended that the exception for marital rape be removed from the Indian Penal Code (IPC).

“The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape,” the Verma Committee had said.

However, the government did not accept the recommendation in the ordinance promulgated last month. But, it enhanced punishment for sex by husband with his wife during separation without consent from two to seven years.

The Standing Committee on Home in its report on the Criminal Law (Amendment) Bill, 2012 agreed with the view of the Home Ministry that criminalising marital rape would weaken traditional family values in India, and that marriage presumes consent.

“… it has practical difficulties. If litigations are allowed, then the family system will be disturbed,” Committee Chairman M Venkaiah Naidu of BJP said in response to questions.

The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual intercourse without consent is prohibited.

However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Verma Committee recommended that marriage should not be considered as an irrevocable consent to sexual acts.

The decision to exempt marital rape was fiercely opposed by women’s groups.

Committee members D Raja (CPI) and Prasanta Chatterjee (CPM) gave a dissent note for excluding marital rape from the ambit of the Criminal Law (Amendment) Bill saying it was contrary to the provisions of the Constitution which considers all women as equal human beings.