Punjab: 6-Year Old boy Singed With Cigarette Butts by Father #Torture #WTFnews


Patiala | Apr 01, 2013, Outlook

A six-year-old boy was allegedly singed with cigarette butts and slashed with a shaving blade by his father who inflicted injuries all over his body.

The harrowing tale of torture was narrated by the child himself in a local court, hearing a divorce case of his parents.

The court was shocked and dismayed to see injury marks on the body of the child and ordered the police to get the child medically examined in the local Government Rajindra Hospital.

The child told the doctors yesterday that his father Baljit Singh inflicted injuries all over his body.

There were about 16 blade cut marks on different parts of his body, doctors said, adding his back had burn marks caused by cigarette butts.

The parents of the child had filed a divorce case and the court had earlier given custody of the child to the father.

It also directed the accused that the child would be allowed to meet his mother once every month.

When the boy insisted on meeting his mother, Singh was so annoyed that he started torturing the child.

A case has been registered against the accused Baljit Singh at the Patiala Sadar police station under various sections of the IPC, police said, adding, efforts are on to arrest him.

 

Notice to Karnataka govt on withdrawal of case against Naveen Soorinje #mediagag #foe


 

Bangalore, Feb 6 (PTI): Karnataka High Court today ordered issue of notices to the government and a regional television channel reporter on a PIL challenging the withdrawal of case against him in connection with attack on boys and girls in a homestay in Mangalore.

The division bench headed by acting Chief Justice K Sreedhar Rao ordered issue of notices to the government and reporter Naveen Sooringe on a PIL by advocate M P Amruthesh, seeking revocation of the cabinet decision to withdraw the case against Sooringe.

The petitioner said the government “without applying its mind” had withdrawn the case against Sooringe due to media pressure. He contended that there are 44 accused in the case and withdrawing the case only against Sooringe was “illegal and against Article 14 of the Constitution”.

He further submitted that the accused in the case were charged under various sections of IPC, the Indecent Representation of Women Act and Karnataka Prevention of Development and Loss of Property Act.

He also pointed out that the case had been withdrawn despite Sooringe’s bail being rejected by district court in Mangalore and also the High court.

On January 31, the cabinet decided to withdraw the case against Sooringe who is in judicial custody since his arrest on August 27, 2012.

 

#India- Download Full Justice Verma Report #delhigangrape #Vaw #AFSPA


Download  here JS Verma Report on Gender Violence

Justice Verma Committee Report on Gender Violence AMENDMENTS TO CRIMINAL LAW

Appointed by Prime Prime Minister Manmohan Singh on December 23, 2012

Released  on January 23, 2013

Justice JS VERMA Justice

LEILA SETH

Gopal Subramniam

Over 80,000 suggestions were received by the Committee. Among these were those made by  Women against State Repression and Sexual Violence, Women with disabilities, human rights groups and many others 

The committee has suggested a range of reforms dealing with all kinds of sexual crimes against women. It is not that the report is immediately going to alter the effectiveness of policing, crime investigation or court trials in India. However, what is particularly heartening is that the committee has not looked at crime against women purely through a lens of ‘protection’ of women. That lens looks at public spaces as a male prerogative, and woman as a fragile creature that needs to be kept away for her own benefit.

Instead, the committee has looked at crime against women through a lens of autonomy, which says that all women have a right to bodily integrity, in all spaces, and all circumstances. That itself is a good start for a country like ours, where women’s ‘character’, clothing and ‘background’ are the first things to be examined in the event of a crime.

1. When a woman is raped, it does not mean that she has been shamed or ‘dishonoured.’ Nor is it a crime against her community’s ‘honour’. 

“We believe that there is no danger and no shame or loss of honour in a victim seeking redressal by filing complaints and must in fact exercise,  consistent with fundamental rights of women, the right to file complaints and bring offenders to book. We also think that it is the duty of the State to encourage such a climate and also to make  available such resources that enable them to file such complaints.”

“We think that it is necessary for the police officers to be completely sensitised against the honour-shame theory, and to treat every woman  complainant as an individual in her own right capable of asserting her grievance…We think that there has been a completely erroneous connection which is being made between a woman and a community. In other words, we feel very strongly  that an assault on a woman is an assault on the person of the woman.”

2. The absence of violence does not mean the presence of consent.

“Consent must be real… Thus, if the consent is obtained after giving the woman a threat of spreading false and scandalous rumours about her character or destruction of her property or injury to her children or parents or by holding out other threats of injury to her person, reputation or property, that consent will also not be consent under the third clause as recommended to be amended…The 84th Law Commission Report correctly said that violence was not mandatory.”

3. There must be consequences, if police fail to register FIRs.

“What is most surprising is that Parliament has ignored the recommendation of the 84th (Law Commission) Report, which calls for the punishment of a station-incharge who fails to register information of a cognisable offence given to him.”

4. The definition of sexual assault, while including rape should also include any other forms of assault that challenge women’s bodily integrity.

“We are of the considered opinion that in the Indian context it is important to keep a separate offence of ‘rape’. This is a widely understood term which also expresses society’s strong moral condemnation. In the current context, there is a risk that a move to a generic crime of ‘sexual assault’ might signal a dilution of the political and social commitment to respecting, protecting and promoting women’s right to integrity, agency and autonomy. However, there should also be a criminal prohibition of other, non-penetrative forms of sexual assault, which currently is not found in the IPC, aside from the inappropriate references to ‘outraging the modesty’ of women in Sections 354 and 509. We recommended the enactment of Section 354 in another form while we have recommended the repeal of Section 509.”

5. Marriage is not a license to rape.

“We, therefore, recommend that: i. The exception for marital rape be removed. ii. The law ought to specify that: a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation; b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity; c. 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.”

6. Acid attacks need greater focus – in law, and in terms of practical support for victims.

“The gender specificity and discriminatory nature of this offence does not allow us to ignore this offence as yet another crime against women. We recommend that acid attacks be specifically defined as an offence in the IPC, and that the victim be compensated by the accused. However in relation to crimes against women, the Central and State governments must contribute substantial corpus to frame a compensation fund. We note that the existing Criminal Law (Amendment) Bill, 2012, does include a definition of acid attack.”

7. The presence of AFSPA should not give armed forces personnel impunity for sexual violence in conflict zones.

“At the outset, we notice that impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimized by the Armed Forces Special Powers Act, which is in force in large parts of our country… Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law.”

8. Rape is not about “lust” or “loss of control.”

“Thus, rape and other forms of sexual assault have been found to be consistently deployed as an expression of power and must not necessarily be seen as ‘crime of passion’ only. Sexual assaults on women and children has been found to be have been used consistently by State and private persons in conflict areas including in communal violence; where by raping women, men attempt to establish their superiority over the other. The Committee is of the view that such forms of sexual assault deserve to be treated as aggravated sexual offence in law.”

9. Imprisonment terms in sexual assault cases can be strengthened. Capital punishment is not necessarily a deterrent, while it can be applied in the rarest of rare cases (as provided for in Indian law), 

“As far as term sentences are concerned, section 376 of the Indian Penal Code currently provides for punishment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years. We however recommend that in the proposed Criminal Law Amendment Bill, 2012, the minimum sentence should be enhanced to 10 years with a maximum punishment being life imprisonment…We therefore recommend a legislative clarification that life imprisonment must always mean imprisonment for ‘the entire natural life of the convict’”

10. Drop the two-finger test.

“It is crucial to underscore that the size of the vaginal introitus has no bearing on a case of sexual assault, and therefore a test to ascertain the laxity of the vaginal muscles which is commonly referred to as the two-finger test must not be conducted. On the basis of this test observations/ conclusions such as ‘habituated to sexual intercourse’ should not be made and this is forbidden by law.”

 

 

#India- To hell with modesty- #Vaw #Law #Patriarchy


TO HELL WITH MODESTY

The vocabulary of sexual assault framed in the 19th century still persists in the IPC

KIM ARORA TIMES NEWS NETWORK , Jan 19,2013

Language is seldom value-neutral. It is more like a looking glass that shapes perceptions, creates moral codes and tells us who we are and what we stand for or against. The vocabulary of sexual assault, as laid down in the Indian Penal Code and used in the courtroom, is no exception. Not only does it betray a lack of empathy for the victim but also shows distinct gender insensitivity and the influence of patriarchy.
Take for instance the use of the word, modesty, in legal parlance. Section 354 of the IPC criminalises “assault or criminal force to woman with intent to outrage her modesty.” The Oxford English Dictionary (2005) defines modesty as “dressing or behaving so as to avoid impropriety or indecency, especially to avoid attracting sexual attention”. In other words, any woman dressed “immodestly” is part of the problem because she seems to be attracting attention. Incidentally, the word “modesty” does not appear in the law specifically pertaining to peno-vaginal penetrative sexual assault, but in those concerned with molestation and sexual harassment. Section 509 of the IPC penalises “Word, gesture or act intended to insult the modesty of a woman.”
Activist lawyer Madhu Mehra of Partners for Law in Development (PLD) insists that “language is not an innocent side issue; rather, it is the way we adjudicate and perceive rape victims.” PLD has made a submission to the Justice Verma Committee raising the issue of the vocabulary of the country’s rape laws. Adds Dr Ranjana Kaul, lawyer and member of the Delhi Commission for Women, “The language currently used in our statute is terribly Victorian and patriarchal. It looks at ‘modesty’ as something to be guarded. There is an utmost urgency to give clarity to what sexual assault means.”
The language goes back to 1860 when the Indian Penal Code drafted by Lord Macaulay came into practice. Though the IPC has been amended countless times since, the immense concern with a woman’s private sexual conduct remains. And it seems that on the issue of women’s sexual autonomy, present-day Indian jurisprudence is in agreement with the 19th century British administrator and the era he belonged to. Judges through the decades have tried wrapping their heads around the issue, without once coming up with the idea of formally acknowledging that not just the word, but the entire concept of sexual “modesty” is outdated.
Consider this. Back in 1966, while hearing a case of a penetrative assault on a seven month old, the then Chief Justice of India A K Sarkar made some interesting observations. The accused was being tried for “outraging the modesty of a woman” under section 354, and not rape. The judgment, eventually passed in the favour of the prosecutor, had the following remarks by Justice Sarkar: “I do not think a reasonable man would say that a female child of seven and a half months is
possessed of womanly modesty. If she had not, there could be no question of the respondent having intended to outrage her modesty or having known that his act was likely to have that result. I would for this reason answer the question in the negative.”
How the lack of “womanly modesty” nullifies the violence of an assault is a point that Justice Sarkar neglected to make. He did, however, make one allowance for the women of India. “If it is proved that criminal force was used on a sleeping woman with intent to outrage her modesty, then the fact that she does not wake up nor feel that her modesty had been outraged would be no defence to the person doing the act. The woman’s reaction would be irrelevant in deciding the question of guilt,” he added in the judgment.
Fast forward to March 2007. The apex court of the country made an observation that set a precedent for codifying women’s sexual behavior and autonomy within the legal system. A Supreme Court bench comprising Justices Arijit Pasayat and S H Kapadia ruled: “The essence of the woman’s modesty is her sex”. Critics say this observation only reinforces objectification of women. Says Madhu Mehra, “Modesty has nothing to do with a woman’s sex. This reduces her personhood to a sexual characteristic.”
The much talked about Ruchika Girhotra case dragged on for over two decades in various courts. The 14-year-old Ruchika was molested by a senior police officer in Panchkula. After three years of criminal intimidation, systematic physical torture of her brother and threats of violence followed by her complaint, the young teenager ended her own life. Everything Rathore did was covered under “outraging the modesty of a woman” for which he was convicted. The 2010 Punjab Haryana High Court judgment in relation to the case goes so far as to point to the exact moment when the young victim’s modesty was outraged. “The other act of the petitioner of encircling the waist and holding one hand of Ms. Ruchika and pushing her towards his chest is enough to conclude that her modesty had been outraged at that moment itself.”
As of now, the Criminal Law Amendment Bill still retains the word “modesty”. “Whoever has drafted these laws has no knowledge of feminist jurisprudence,” says lawyer Vrinda Grover. Until that comes about, the women of India will have to guard what the courts deem to be their “honour”.

WORDY AFFAIR: Victorian phrases in IPC are at odds with today’s India. (Above) girls at Slutwalk in Delhi last year

 

Sex on false promise of marriage is rape- Delhi HC #goodnews #womenrights #justice #mustshare


If a man has consensual sex with a woman after promising to marry her but later retracts, it amounts to rape, the Delhi High Court has said.

Dismissing the anticipatory bail application of one Firoz Ahmed, who had sexual relations with a widow, Justice Kailash Gambhir held that retracting from a promise of marriage after consensual sex would tantamount to rape. Ahmed was booked under IPC sections 376 (rape) and 506 (criminal intimidation) following a complaint lodged by the woman.

The judge agreed with the view of the trial judge, who had dismissed Ahmed’s bail application, saying that the woman’s consent was obtained under the pretext of marriage and that the intention of the accused from the beginning was not to marry her.

Justice Gambhir upheld prosecution’s argument that Ahmed did not deserve bail as the offence fell under IPC section 375(4), which states that consent for sex obtained under a false pretext also amounts to rape.

 

Women and Reasearch Action Group submission to Justice Verma #Vaw


To:

The Honorable Justice Verma,
Attached and reproduced below are our submission on addressing sexual assault.  We look forward to your final observations and recommendations and hope that they reflect the points and issues we raise in our submission.
Sincerely,
Saumya Uma
******************

SUBMISSION TO JUSTICE VERMA COMMISSION ON SEXUAL ASSAULT From: WOMEN’S RESEARCH & ACTION GROUP (WRAG)

Women’s Research and Action Group (WRAG) is a non-profit organization based in Mumbai, working for the past 20 years on empowerment of women through community action and the law. Through its work with women from underprivileged, marginalized and vulnerable communities of Mumbai and other parts of the country, it has engaged with issues of sexual and gender-based violence against women and girls, the absence of justice and accountability in various contexts including mass crimes, and has engaged in advocacy initiatives towards addressing the existing impunity for crimes against women.

At the outset, WRAG wishes to foreground the inter-linkages between ‘everyday’ violence and harassment faced by all women and girls, and contexts of increased vulnerability, where such forms of violence are exacerbated. The increased vulnerability is caused due to

a)     identity of the victims / survivors – such as physically and mentally challenged women and girls, dalits, adivasis, sex workers, members of denotified groups, religious and linguistic minorities, as well as members of the LGBTI community; and

b)    special contexts – such as custodial situations, militarisation, communal violence, caste-based violence and other contexts of mass crimes, when the perpetrators enjoy de facto and de jure impunity.

WRAG is deeply concerned that the current public discourse has focussed on a ‘strong law’ and stringent punishment, including support for a capital punishment and chemical castration.  We believe that such suggestions are made for political expediency and to assuage public outrage at this point in time, without any genuine attempt to substantially understand and address the complex issues contributing to violence against women and girls, particularly sexual violence. We are convinced that in addressing / arresting sexual assault against women and girls, the following aspects deserve to be examined:

a)     Amendments in law – substantive, evidentiary and procedural;

b)    Ways in which the law should be effectively implemented – including functioning of the police and judiciary, and accountability for dereliction of duties by public servants, and introducing transparent processes;

c)     Protection of rights of victims and survivors before, during and after trial – including issues of reparative justice;

d)    Working at the preventive level and addressing the root cause for violence against women and girls – the patriarchal and misogynist attitudes that exist in all sections of the Indian society;

e)     Enhancing aspects of good governance, ensuring efficient and transparent functioning of democratic institutions and eradicating corruption among government departments through a series of incentives, disincentives and administrative actions; (e.g. corruption within the police force, hospitals, transport authorities and various government departments duty-bound );

f)     Provision of services and infrastructural facilities that would enhance the safety for women and girls (safe, efficient and cheap modes of transport, well-lit roads etc.); and

g)    Other social, economic and cultural processes by which women and girls can be empowered and the perpetrators deterred / discouraged from committing violent acts.

Seen in this light, we believe that amendments in law form a part of the multi-pronged strategies that are required to effectively address the issue of sexual assault, and would not, by themselves, guarantee safety. Our suggestions on legal provisions are as follows:

 

I.   DEFINITION – WHAT AMOUNTS TO SEXUAL ASSAULT?

 

a.     Sexual Crimes as a Continuum: The IPC provision focusses only on peno-vaginal penetration. The Criminal Law Amendment Bill 2012 continues to retain a narrow definition of sexual assault, that focuses on penetration, albeit by body parts excluding objects other than the penis.  The gap between outrage of modesty (S. 354 IPC) and penetrative sexual assault remains large. We believe that sexual crimes form a continuum that include a wide range of sexualized criminal acts.  We believe that the Bill should recognise the structural and graded nature of sexual violence, based on concepts of harm, injury, humiliation and degradation, and use well-established categories of sexual assault, aggravated sexual assault, and sexual offences / harassment including attempt to sexually assault and rape.  Consequently, we suggest a repeal of S. 354 and S. 509 of the IPC.

 

b.     Sexual Assault: Sexual assault crimes include but are not limited to penetrative assaults. They include acts that use criminal force, including stripping, parading and mutilation which are intended to sexually assault, degrade or humiliate those who are so targeted.

 

c.     Aggravated Sexual Assault: Recognising sexual assault in certain specific situations of conflict based on community, ethnicity, caste, religion and language, as well as physical / mental disability of the victim merit special recognition. Such contexts ought to be treated as aggravated circumstances due to the use of criminal force, the custodial position of the perpetrator, the nature of coercive circumstances, and the presence of multiple perpetrators;

 

d.     Sexual Offences / Harassment: Acts within this definition could include public stripping and parading of women, groping and pinching of women, and also non-contact acts such as flashing, gesture, stalking, blackmailing via electronic media like MMS, etc.

 

 

e.     Recognition of Marital RapeWe recommend a deletion of the exception provided for marital rape, bearing in mind that women are full citizens of this country, who enjoy the constitutional guarantees of, inter alia, right to life, liberty, equality and non-discrimination. Similarly S. 376A of the IPC, which prescribes a lesser punishment for a man who commits sexual assault on his wife during separation, is regressive and requires to be deleted with immediate effect.  Any apprehensions about introducing laws into the “privacy of the home” hold no waters, in the light of introduction of laws such as Prevention of Domestic Violence Act – which recognises sexual assault as a form of domestic violence and a civil wrong.

 

f.      Gender Neutrality: Further, while the effort to ensure gender neutrality with respect to those who are the complainants/ victims of sexual assault is welcome, as it would extend protection to men, transgender and trans-sexual victims.  However we believe that the perpetrator has to remain gender-specific under all circumstances (custodial and non-custodial) and limited to men as perpetrators, as there is no empirical evidence in India to support a finding to the contrary.  In addition, introducing gender neutrality of perpetrators brings in a false notion of equality in a society that is otherwise highly inequal and discriminatory against women, misogynic and infact the root cause of violence against women.

 

g.     Age of Consent: In the light of increasing evidence from courts, legal precedents, records of crimes, as well as studies on the exercise of agency by young people in asserting their choice with respect to sexuality and relationships, we suggest that the age of consent to sexual intercourse should be retained as 16 and not increased to 18.  We believe that increasing the age of consent to 18 would enable parents / guardians to misuse the provision in the context of choice marriages and inter-caste / inter-religious relationships that they do not approve of, by making false allegations of rape, in order to exercise control over the adolescent girl using the state machinery and the power of law. Such a provision would also provide a tool with which the boy and his family would be harassed and humiliated.

 

 

 

II.    PRE-TRIAL STAGE

The protection of victims of sexual assault requires developing a set of measures aimed to ensure the safety, physical and psychological well-being, dignity, and privacy of victims who are appearing as witnesses in criminal proceedings or otherwise seeking legal redress. Simultaneously, through a combination of penal sanctions and administrative action, public servants ought to be made accountable for dereliction of duty, which prevent the law from being implemented in an unbiased and effective manner, thereby scuttling the process of justice.

a.     Address social obstacles: address social obstacles to lodge a complaint of sexual assault – bias / insensitivity of police, stigma faced by woman, lack of familiarity with legal processes, lack of confidence in the police, safety of women complainants at police stations

b.     Address issue of autonomous functioning of the police force: address bias of police and the need for autonomous, transparent functioning that is free of political pressures

c.     Standard Operating Procedures: Provide for Standard Operating Procedures with detailed guidelines for each aspect of investigation (Refer to the SOPs in place for the Delhi Police since 2005); build in provisions for accountability for violation of the   SOPs; SOPs should be reviewed to ensure that they reflect a gender sensitive and meticulous approach to investigation and officially adopted by all police departments in states and UTs, and should be made publicly accessible.

d.     Improper / Biased / Shoddy Investigation: The responsibility of a proper investigation falls on the investigating agency. Any delay, shoddiness, partisanship and inefficiency in collection of evidence, and lack or delay in medical examination etc should be considered as a grave dereliction of duty, liable to administrative and / or other action.

e.     Proforma for Medical Examination of Sexual Assault Victim: Ensure that the proforma is not biased against the victim; prohibit the two finger test which is widely used during medical examination of the rape victims to determine whether they are ‘habituated to sexual intercourse’; also exclude other observations that comment on the past sexual history of the victim – such as old tears to the hymen.

f.      Professional Training for Collecting Medico-legal Evidence: Recording of medico-legal evidence is imperative, that may be used to obtain a conviction in rape cases) and crime kit (additional tool used for the collection of medico-legal evidence, containing slides, swabs, test tubes and other equipment to collect samples of blood, hair, semen fingernail scrapings). Investigators should be provided professional training in this regard.

g.     Sensitive and Humane Treatment to Victim-survivor: Gender-sensitivity, professional and humane treatment to the victim-survivor with full respect to the dignity, privacy and confidentiality should be provided for; complaints to the contrary should be taken up by higher authorities. Continuous supervision by senior officials of the manner in which victims-survivors are treated is important.

h.     Support Services to Victim-survivor: When a person complains of sexual assault, every police station should be duty-bound to provide an immediate access of the victim to lawyer, medical attention, psycho-social / trauma counselling and other support services as may be required. Psychological support is crucial to the healing of the survivor. Medical professionals should be allowed to provide medical / psychological assistance to the victim-survivor without undue interference by the police.

i.      Exclusion of Sanction for Prosecution of Public Servants: We suggest an exclusion of the application of S. 45 and S. 197 Cr PC to the provisions of sexual assault, in order that the existing widespread impunity for sexual assault where it is committed by public servants, is ended.  We believe that no sexual assault can ever be construed as being perpetrated “in discharge of official duty” and therefore the statutory requirement of prior sanction from the government for prosecution of public servants ought not to be extended to the crime of sexual assault;

j.      Witness Protection: Protection of victims and witnesses from the pre-trial to post-conviction stages in accordance with the jurisprudential developments and Law Commission’s 198th report released in August 2006; strictly enforce legal action on those who attempt to intimidate / threaten / coerce a witness, including pressurizing the victim-survivor and family members to turn hostile during trial, thereby obstructing the course of justice.

k.     Compensation: Compensation to be given to the victims, computed on the basis of injury received. The first instalment to be paid within 15 days of filing of FIR. This should be independent of the outcome of the trial or the victim retracting her statement at a later point due to whatever reason. Proactive enforcement of Section 357A of the CrPC, which talks about awarding compensation to the victims of crime. The the framework of compensation under the SC ST protection of atrocities Act 1989 may be adapted suitably for compensations to victims..

l.      Need for a Humane Police Force: Recruitment of women into the police force, by itself, will not ensure that victims-survivors of sexual assault are treated in a dignified, humane and respectful manner. Training in this regard is required for both male and female police officials. Continuous supervision and monitoring is imperative to ensure that they follow this.

m.   Collection and Compilation of Data: Ensure efficient methods of collecting and compiling data related to complaints of sexual assault.

 

 

III.     TRIAL

 

i.         Swift and certain prosecution

ii.         Time bound trials: Trials in rape cases must be concluded within a period of 90 days; lengthy trials that erode the victim’s resilience, patience and memory, should be avoided.

iii.         Victims’ Lawyers: In trials of sexual offences, the victim-survivor should ordinarily be permitted to engage a counsel of her choice to assist the prosecution. In addition free legal, medical, psychological and rehabilitative services should be made available to enable working class women to pursue legal justice.

iv.         Interpreters / translators: Provision for interpreters/ translators in order to record the testimony of disabled victims or witnesses. Cases involving disabled women end in acquittal as their testimony is either not recorded at all or is recorded without the help of independent interpreters. Often the help of family members is taken in interpreting the testimony, which affects the case at the High Court stage as family members are interested parties and relying on their interpretation of the testimony goes against the rule of impartiality of criminal trials.

v.         Accountability of Prosecutors: an analysis of reported cases show that a large number of cases are end in acquittal because key witnesses such as doctors are not examined in court. This needs to be addressed.  Prosecutors should be made accountable through administrative and / or other action for dereliction of their duty.

vi.         In camera trials: Experience has shown that in-camera trials are not helpful as it is more traumatic for the victim to be surrounded by aggressive defence lawyers and the accused in a closed court room. Additionally there is no scope for monitoring the trial, which becomes important given the attitudinal biases that actors in the legal system have towards women who complain of sexual assault. On the other hand, in camera trials have also been helpful in preventing voyeurism in an open court, which obstructs a safe and secure atmosphere for the victim-survivor to depose in. Hence, it is suggested that in camera trial could be left to the option of the victim-survivor, and where opted for, 3-4 persons of her choice should be allowed to remain in the court room to provide her psychological support.

vii.         Witness protection: better provisions should be implemented for shielding the victim from the defence, including the accused – such as through the use of a physical shield, closed circuit cameras, video conference, voice and face distortion.  These are discussed in further detail in the Law Commission of India’s 198th report. Distance between the witness box and the seating of the accused should be substantial, and direct confrontation between the victim and the accused should be avoided at all cost.

viii.         Cross Examination: Guidelines must be laid down for the cross examination of a victim of sexual violence, particularly highlighting the changes in the CrPC sections which now do not allow character assassination or looking at past history of the victim.

ix.         Protection of Human Rights Defenders: Take measures to protect human rights defenders and other individuals who provide protection to victims.

 

 

 

IV.      PUNISHMENT

 

We believe that much of the recent public discourse around introducing capital punishment for sexual assault in the rarest of rare cases as well as physical / chemical castration, are reinforcing aspects of retributive justice aimed at an eye for an eye, rather than restorative justice which are more suitable for a just and humane society that we believe in. We are principally against retributive forms of justice, and feel that the Indian legal system needs to move towards restorative forms of justice, where the perpetrator is not considered less than human, but as a person with a potential to repent, reform, be rehabilitated and reintegrated in society. Such a potential maybe assessed during the course of the sentence and parole.  The assessment of perpetrators of sexual assault or reccurent domestic violence need to be carefully done observing his attitude towards all women and the victim in particular.

 

i.           No to Death Penalty:  For the reasons stated below, we suggest that death penalty be excluded as a form of punishment for sexual assault.

  • There is no scientific basis for claiming its deterrent effect.
  • Studies show that as punishments become stricter, the rate of conviction falls as then judges are reluctant to award harsh sentences.
  • Death penalty embodies the idea of retribution which is as violent as the offence for which it is being suggested.
  • We also believe that the state does not have the right to take away anyone’s life. There are caste, religious, class biases that are bound to come in, as those who are more privileged and enjoy political clout in society will engage highly professional legal services to escape from death penalty.
  • Given the fact that an overwhelming number of women are sexually assaulted by people known to them, and often include near or distant family, friends, husbands, workplace superiors and partners, we believe that the punishment of death penalty for rape will further deter victims-survivors from reporting the crime.
  • There have been, and are bound to be, errors of judgment – which cannot be undone.
  • We believe that death penalty becomes a tool in the hands of the State to further exert its power over its citizens, which we do not support.

 

ii.              No to Physical / Chemical Castration: We are against physical / chemical castration as a form of punishment for sexual assault, irrespective of whether it is voluntary or involuntary, for the following reasons:

  • Sexual assault is not about the inability to control sexual urge or desire but about exercising power over the victim, stemming from patriarchal values. Suggesting castration as a punishment for sexual assault is therefore, based on an erroneous presumption of the philosophy of rape.
  • Even if it was argued that chemical castration would impair the production of testosterone which is linked to aggression, aggression is an important component of not only sexual assault but also other brutal forms of assault and murder that are non-sexual in nature. There is no logic in privileging sexual assault for this form of punishment, over other crimes that involve comparable amount of aggression.
  • Castration does not guarantee non-penile forms of brutal sexual assault, such as insertion of objects into the orifices of the victim’s body, forced nudity and mutilation of sexual organs.
  • Castration – physical or chemical, voluntary or involuntary – violates the fundamental right to life and bodily integrity of the person concerned, as guaranteed by the Indian Constitution.
  • There is no empirical data indicating its deterrent effect.
  • At a practical level, since it involves administering injections to convicted persons every three months, how will the police trace them once released? If they are not released and are kept in prison, what is the rationale behind castration anyway?

 

iii.       No to Life Sentence Without Parole: Though this is an option being thought by many to contribute to the safety, awarding a person convicted of sexual assault with a life sentence for the whole of his life without parole, deprives the person of a window of opportunity to repent the crime, to reform and rehabilitate.  However there have to be strict forms of assessment to ensure that the accused has the potential to reform before being released on parole.

iv.           In cases of aggravated sexual assault, punishment should be for life imprisonment with no remission.  The sentences for custodial rape and sexual assault must be enhanced compared to the sentences for civilian rape and sexual assault, to act as a deterrent for security officers misusing the power they have derived from being officers of the state.

v.           We also believe the law should punish sexual assault with murder more strongly than that without murder, so that the law does not provide an incentive for the perpetrator to kill the victim-survivor of rape.

vi.           Reparative justice: effective implementation of existing schemes for compensation / rehabilitation for sexual assault with budgetary support.  These include but are not limited to the Victims Compensation Scheme (brought about through a 2008 amendment to S. 357A of the Cr PC) as well as the National Commission for Women’s scheme for assistance and support services to victims of rape. Statutory recognition of comprehensive psycho-social support, care and treatment to victim-survivors.

 

Contact Persons: Saumya Uma & Vahida Nainar (Trustees)

Vibhuti Patel (Trustee), Nasreen Contractor (Co-Director) and Varsha Rajan Berry (Co-director)

Women’s Research & Action Group, 101, Zaithunvilla, Behind Airview Building, near Vakola Market, Santacruz (East), Mumbai 400055. Ph: 022-26674830; wrag2009@gmail.com /codirectorswrag@gmail.com

 

#Mumbai-Your face does not merit a rape FIR #Vaw #WTFnews


Your face does not merit a rape FIR , says lady cop to victim

The bizarre reason a lady cop gave the victim before refusing to lodge FIR against her former live-in partner

December 29, 2012
MUMBAI
Akela, Mid day

“Tumhara chehra rape ka FIR karne layak nahin hain.” A woman who turned to the cops to lodge an FIR against a man who had duped her into a live-in relationship was turned away by a female police officer on the pretext of this bizarre rationale.

Rekha

The cop went on to sanctimoniously tell her that if she had truly loved the man who wronged her, she wouldn’t lodge a complaint against him, but would marry another man and live happily ever after.

Santosh Sharma
Victim and accused: Rekha (Top) and Santosh Sharma. Pics/Nimesh Dave

Before receiving such pearls of wisdom from the female cop, the complainant had even been told by a senior inspector that there was “no point” in lodging a rape case.

Rekha, (name changed) a 28-year-old resident of Malad, had moved in with her boyfriend after he promised he would marry her.

After he dumped her unceremoniously and married another woman years later, she turned to the police. For four consecutive days, police officers refused to register an FIR, saying ‘saheb chhutti par hain.”

She then met Senior Inspector Subhash Dafle, who also refused to register an FIR and assured her that all would be fine in a few days.

“Dafle told me, ‘Rape ka FIR karne me koi fayda nahin hai. Char din me sab theek ho jayega. Rapist to Goregaon- Malad me chhipa nahin hai ki use pakad layein (There is no use filing an FIR for rape. Everything will be fine in four days. It’s not like the rapist is lurking in Goregaon or Malad that we can catch him),” said Rekha.

Faced with the blunt refusal of cops, Rekha approached the Borivli Magistrate Court on December 15 with the help of lawyer Ashok Yadav.

The court then passed an order asking that an FIR be registered against Santosh Sharma under Sections 376, 406, 420 and 498 (A) of the IPC for dowry, rape, cheating and breach of trust.

But even the court’s order couldn’t convince the cops to take action.

The honourable court passed an order asking the police to register an FIR on the same day, but Kurar police turned a deaf ear. They aren’t even obeying the court’s order,” said Yadav.

Armed with the court order, Rekha met officer Jyoti Bhopale with the court order. But instead of registering the FIR, Bhopale started giving her some unsolicited advice, replete with veiled insults.

“She told me, ‘Tumhara chehra rape ka FIR karne layak nahin hai. Agar tum usse sachcha pyar karti to uske khilaf complaint nahin karti. Jao kisi aur se shadi kar lo aur khush raho (Your face doesn’t merit a rape FIR. If you loved him truly, you would not lodge a complaint against him. Go marry someone else and stay happy,” said an outraged Rekha.

False promises
Rekha met Santosh Sharma (30) at a garment shop in 2006 and they soon became friends. They started living together. Sharma even introduced Rekha to his family as his ‘wife’. Sharma would give Rekha Rs 8,000 every month. Rekha would even give part of her salary to Sharma’s father. In 2009, Sharma went abroad for a job. He then started distancing himself from Rekha, and stopped communicating with her. When he was confronted, he refused to tie the knot with her, saying that he couldn’t do so as he was a heart patient.

“Sharma told me, ‘Main heart ka patient hun isliye shadi nahin kar sakta,’” said Rekha.

In March, Rekha went to Sharma’s native district in Unnao, Uttar Pradesh. She was shocked when police officers and villagers told her that Sharma had married another woman.

Sharma’s father Guru Dayal Sharma told Rekha that since she couldn’t pay him Rs 2.5 lakh in cash and give four tolas of gold, he made his son marry another woman. “Santosh swore on his mother’s life that he didn’t know me,” said Rekha.

The other side
In spite of repeated attempts, Senior Inspector Dafle of Kurar police station could not be reached for comment. “I am not aware about the court order, but I will look in to the

#MaritalRape and the Indian legal scenario #mustshare #Vaw


marital-rape-poster
Priyanka Rath seeks to bring out the laws regarding rape in India while concentrating on the position of marital rape and its recognition as an offence by the system and the attitude of the society and the judiciary towards marital rape.

Marital Raperefers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.

Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified.

Historically, “Raptus”, the generic term of rape was to imply violent theft, applied to both property and person. It was synonymous with abduction and a woman’s abduction or sexual molestation, was merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.

Advancing well into the timeline, marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by  man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.

Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flash back, sexual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount top excessive interference wit the marital relationship.

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India.

The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice  or equity. Even international law now says that rape may be accepted a s the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.

Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behaviour.

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

  1. ‘Rape’ should be replaced by the term ‘sexual assault’.
  2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
  3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
  4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
  5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
  6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
  7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
  8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has provided civil remedies to what the provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., … mental, physical, or sexual.

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It is not about the freedom of decision of a woman’s wants. It is about the fundamental design of the marital institution that despite being married, she retains and individual status, where she doesn’t need to concede to every physical overture even though it is only be her husband. Honour and dignity remains with an individual, irrespective of marital status.

Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for n offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially sexual, it is supposed to thrive n mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?

As a final piece of argument to show the pressing need for protection of woman, here are some effects a rape victim may have to live with,-

  • Physical injuries to vaginal and anal areas, lacerations, bruising.
  • Anxiety, shock, depression and suicidal thoughts.
  • Gynecological effects including miscarriage, stillbirths, bladder infections, STDs and infertility.
  • Long drawn symptoms like insomnia, eating disorders, sexual dysfunction, and negative self image.

Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart form judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.

In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.

source-http://www.indialawjournal.com/