#India- BILL VS ACT: Confusion over sex crime laws #Vaw #Womenrights


Manoj Mitta | TNN

Persisting differences within the Cabinet on the rape Bill will not just make it harder to replace the ordinance on rape laws before it lapses in less than a month (April 4)—the government may also have to amend the Protection of Children from Sexual Offences Act (PCSO) which was passed by Parliament just 10 months ago. This is because the differences over the rape Bill, however they are resolved within the Cabinet and in the two Houses, are unlikely to remove all the anomalies thrown up by the hurriedly drafted ordinance promulgated last month following the outrage over the Nirbhaya gang rape.
The inconsistencies between the sexual offences pertaining to adults and children underscore the failure of policymakers to think through the provisions. Consider the extent of the legislative mess that remains to be cleared on so crucial an issue as gender crimes.
AGE OF CONSENT|This is one of the sticking points because PCSO had, in a controversial move, raised the permissible age for consensual sex from 16 to 18 years. Then, in a bid to make the statute book consistent, the government introduced a legislative proposal on December 4, increasing the age of consent to 18 even in the general law, the IPC. But the J S Verma Committee, set up in the wake of the Nirbhaya incident, applied a corrective by recommending that the age of consent remain 16 as it has been for over seven decades. The government, however, disregarded this advice. While the parliamentary standing committee endorsed the government’s stand, feminist groups demanded that consensual sex among teens should not be criminalised unless the age gap was more than four years. The upshot is that if the government decides to retain the age of consent in IPC at 16, it will have to amend PSCO to bring it in alignment with the new policy.
GENDER-NEUTRALITY
|The government is also under pressure to depart from the radical approach adopted in the ordinance where the term “rape” was replaced with the broader, genderneutral offence of “sexual assault”. The ordinance is contrary to the Verma report as well as the demands made by feminist groups. The argument in favor of retaining the term “rape” as a crime committed by men is that the gender-neutral provision will make women, “the real victims”, even more vulnerable to sexual crimes. The possibility of counter-complaints against women would have a chilling effect on their ability to seek legal remedy after being subjected to sexual offences. If it does not abandon its gender-neutrality proposal, the government runs the risk of enacting a law that is opposed by the very section it is meant to protect.
MARITAL RAPEPCSO and the ordinance are at odds on this issue. PCSO, which applies to all children below 18, makes no exception for the rape of a girl by her husband. But marital rape is penalized by the ordinance only when the wife is below 16. The wives above 16 are statutorily barred from accusing their husbands of non-consensual sex. This one-sided restriction means that a husband can accused wife of rape while the wife can make such an allegation only if she is below 16.
LESSER PUNISHMENT FOR CRIMES AGAINST CHILDREN
This is a reversal of the global pattern of prescribing greater punishment for crimes against children. Consider some of the anomalies that need to be fixed. While the minimum punishment in PCSO for a non-contact sexual assault is seven years, the minimum in the ordinance for the same offence is 10 years. If the offender touches the private parts of a girl under 18, the punishment under PCSO ranges from three to five years. But if the victim is a woman over 18, then the punishment under the ordinance ranges from 10 years to life imprisonment.

MUDDLE GROUND

 

#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.

 

#India- The Criminal Law Ordinance on Sexual Assault – Cut, Paste and Shock #Vaw #womenrights


 #India- Chastity, Virginity, Marriageability, and Rape Sentencing #Vaw  #Justice #mustread

FEBRUARY 5, 2013

Guest post by PRATIKSHA BAXI 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

#India-The Official Emergency Continues – The Ordinance on Sexual Assault #Vaw


FEBRUARY 3, 2013

Guest post by PRATIKSHA BAXI,

The reform of rape law, which was not a priority for more than two decades, seems more like a 20-20 match now. The spectacle of judicial reform has all the elements of cinematic imagination built into it—violence, voyeurism, repression, tears, scandal, redemption and betrayal. We are all consumers and participants of this judicial spectacle. We veer between manic hope and dark despair as we are left conjecturing how this theatre of judicial reform will enact equality and dignity for survivors of sexual assault. The latest twist in the tale is the introduction of an ordinance, following the Justice Verma Committee (JVC) report.

We are told that the government decided to formulate an ordinance to address sexual violence as an emergency. Strangely enough the text of the ordinance has been kept a secret, other than the press release ostensibly released by the government, hence we can only comment on the series of statements made to the media. It is claimed that the JVC report informed this ordinance, which collates the “uncontroversial” elements in the JVC and the Criminal Law Amendment Bill2012. The ordinance will become the law perhaps on Monday if the President signs it. Until the parliament meets, the ordinance will define sexual assault.

The government accepted the JVC’s demand that their recommendations should be incorporated immediately as an ordinance. In fact Justice Verma on Times Now said that the non-controversial aspects of their recommendations should be immediately passed as an ordinance. To quote Justice Verma, “but there are many things which we have said which have been talked of for sometime and there are no two opinions. Now where is the difficulty in promulgating an ordinance to implement them straight away because that is not something which need to await a debate in the Parliament”.

The self-construction of the JVC as a manifesto of the peoples’ movements against sexual violence, including the women’s movement and the positioning of the members of the JVC as “heroic” for having finished the report in 29 days should have signalled to us that an ordinance would be scripted as the outcome of this committee. So why are we surprised that there is an ordinance? And why critique the ordinance? Is it not reasonable that some of the elements of a progressive legislation should be enacted now such as the provisions on acid attack, stalking, voyeurism, and trafficking until a more comprehensive law can be crafted in the parliament? Why should an acid survivor not benefit from this new law—presuming that the state will spend enough money publicising the ordinance to every thana and hospital for three weeks? 

One could argue that the opposition is not to recognising that sexual violence is an emergency that women experience everyday rather the important question is what is recognised as an emergency, and when.

  1. In the ordinance, the retention of the marital rape exemption is not seen as an official declaration of permanent sexual emergency for married women.
  2. The rape of women by security agencies, a state of permanent sexual emergency, continues to need sanction for prosecution from the government.
  3. Those politicians charged with rape will continue to wield power to uphold states of sexual emergency for women.
  4. Those who are in positions of power and authority to stop mass sexual violence suspend law to allow unimaginable and targetted sexual and reproductive violence are not seen as criminally authoring and authorising states of sexual emergencies.
  5. The ordinance does not recognise the states of emergencies declared against young people who choose to marry against social norms of caste, community and religion.
  6. The ordinance does not recognise that each medical examination of a rape survivor is experienced as a re-rape; and that this is an emergency.
  7. The routinized violence on dalit women, such as stripping and parading especially of those who are punished for transgressing caste hierarchies is not seen as a state of emergency.

The ordinance ascribes blame to women for creating states of sexual emergencies when it proposes a gender-neutral sexual assault law implying that women, like men, sexually assault adult persons, including men in everyday contexts! It appears that the ordinance does not create an exception to make manifest that women do not rape men. Rather dishonestly the ordinance blames women for the sins of men—by positioning them as perpetrators of sexual assault of men in everyday contexts. This creates the possibility of further criminalising women’s lives. There is proof of such criminalisation under existing laws, which are gender specific viz, perpetrators.

According to the Delhi government statistics on the profile of female prisoners in the Tihar Jailthere is increase … in rape cases by 2.47%

During 2011, as per NCRB statistics 766 women were arrested under s. 376 (rape) IPC, 1698 women arrested on the grounds of molestation (s. 354 IPC) and 193 women on grounds of sexual harassment (under s. 509 IPC). In 2011, 43 women inmates died, amongst whom eight women committed suicide in jail. Does the government have any explanation for why the police arrested more than 700 women under s. 376 IPC?

When women’s groups oppose gender neutrality viz., including women as perpetrators, one predominant concern has been the manner in which the police misuse the law to criminalise women who transgress patriarchal norms. The JVC recognised this concern in amending theCriminal Law Amendment Bill, 2012.

However, the cabinet seems to have refused to take into account the growing statistics of arrests of women under s. 376 IPC. Nor do they seem to think that men will misuse this provision against women: because in legal discourse only women seem to misuse patriarchal laws against men!

It is evident that ordinance does not revise male laws from the point of view of survivors of sexual assault. Take the example of marital rape. For whom is marital rape controversial? Surely it is not controversial for women who experience sexual violence in marriage. But the men who draft laws smell the fear of those men who cannot be bothered whether their wives want to have sex with them. Surely husbands must be given legal impunity if they sexually assault their wives, argues Abhishek Manu Singhvi, since wives will levy false cases against their husbands, and courts will be flooded with wives accusing husbands of rape. In other words, women who are married are treated as if they are pathological liars, and by implication are positioned as a “criminal type” intent on breaking up marriages on false accusations ranging from rape, domestic violence and dowry related harassment.

This argument is obviously ideological rather than sociological. It cannot be argued by anyone that women are less invested in marriage than men, given that patriarchy ensures that status and respectability of a woman in society derives from the fact of marriage. Women nurture their families, far more than men, be it their affinal or natal families. They look after the young and the old. They are dependent on their families economically, socially and politically. Women are told constantly to “adjust” to violent husbands perhaps since such men cannot be courageous to risk true love by surrendering their violent power.

Women have too much to lose if they levy false accusations of sexual assault against their husbands. Even mothers who file charges against husbands who rape their daughter are hounded in our courts, police stations and families for being bad wives, breaking up the family and threatening social order.

Further, there is no social or governmental support for women who would like to reject marriage. Single women, who are divorced, never married, or do not want to be married to men, are targeted by everyone in manifold ways. The mildest form of discrimination single women face is pity, or derision at not having their own family. The assumption that single women are “available” for male sexual experimentation, the lack of safety and the heightened vulnerability without the “protection” of a man, are all elements of enforced heterosexuality.

The government is petrified that the very suggestion that wives are autonomous will unravel the phallocentric foundations of marriage—based as it is on violence or its threat. Wanting to cling on to the monopoly to rape their wives, these men who make our laws betray a strong attachment to colonial law. This is not surprising since women’s bodies in enforced heterosexuality are colonised by the desires of husbands who enjoy rape. If those who script laws had been accepting of different models of masculinities, and understanding of pluralities of sexual experiences crafted by the experience of the joy of autonomy, they would not have expressed such panicked fear. They would have also deleted s. 377 IPC by way of an ordinance but then heterosexist men despise queer sexuality the most.

The cabinet does not need to conduct a national survey to realise that rape is a preferred mode of violence in marriage. They know that most often heterosexist men do not bother to be solicitous of the desires of their wives or pleasure them. Such heterosexist men do not wish to acknowledge that there are alternate ways of scripting sexual relationships, which are alive with autonomy, laughter and sexual creativity—precisely because of mutual respect and admiration. If the men in positions of power had experienced such relationships, they would not feel threatened by legislating against the sexual colonisation of women’s bodies by their husbands. The law distorts what marriage should mean for both men and women–freedom from violence, expression of love, sexual companionship, and a journey in profound friendship. Love obviously threatens social, legal and political orders far more radically than violent ways of extinguishing a woman’s life.

The ordinance declares the continuance of those sexual emergencies in everyday and extraordinary context, which are central to patriarchal power. The spectacle of judicial reform is enacted to detract attention from such permanent states of emergency. Perhaps the Cabinet should clarify what it means by emergency in the first place, since it seems the ordinance, in its current form, embraces the idea of domesticating and even celebrating some forms of permanent sexual emergencies, over others. Nor does it take legislative labour to do away with the medicalization of consent via the two-finger test or insist on registration of FIRs irrespective of jurisdiction. This could have been done by executive or judicial decree. Unfortunately, the JVC is also complicit in the making of this spectacle of judicial reform by insisting on the model of 20/20 law reform, and demanding governmental recognition of its heroic labours, without truly understanding the deep structure of sovereign power, which has a necrophilic need for permanent states of sexual emergencies. No wonder the JVC is upset and we can only hope that their suffering makes a radical difference.

Pratiksha Baxi teaches at the Centre for the study of law and governance at JNU and can be contacted at Pratiksha Baxi pratiksha.baxi@gmail.com

 

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

 

#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/

#India-Criminal recognition to #maritalrape in India is long overdue #Vaw


marital-rape-poster

Madhavi Rajadhyaksha, TNN Dec 4, 2012, 10.26PM IST

 

MUMBAI: A case in a Delhi court this week has put the spotlight on a crucial lacuna in the criminal justice system in India. Marital rape is not recognised under the Indian Penal Code.

The missing link was highlighted yet again in a case where a Delhi court acquitted a man of charges of raping his wife on the premise that having sexual relations with a spouse, even if forcibly, did not amount to ‘marital rape‘. India has taken some significant steps in fighting marital violence in recent years, but criminal recognition for forced sex in marriages is still long over due. The first positive step was taken when the Domestic Violence Act, 2005 was passed wherein a woman could file a civil case for separation from her spouse.

Section 376 (A) deals with marital rape only when it is with regard to judicially separated partners. It takes humungous effort for a victim of rape to lodge a complaint, especially within a marriage and the offence is believed to be widely under-reported in any case. Such cases suffer due to the lack of awareness in many quarters that forced sex under any circumstances is a violation. The patriarchal culture of Indian society often works to further detriment to invalidate such claims. For those who muster the courage, it would help if the system was a little more sensitised and the offence didn’t fall in a legal vacuum. Currently, victims can lodge a complaint of marital discord or domestic violence.

Over 104 countries have laws to protect victims against marital rape according to the United Nations and it is perhaps time India at least recognise the offence as a crime in its penal code. It remains to be seen whether the amendment to the criminal procedure code which is currently underway offers any true respite in this matter. Criminalisation is after all only the first step to justice. We still have a long way to go to address further issues of counselling, rehabilitation and shelter to such victims. Unwanted pregnancies arising out of such rapes too need addressing.

 

#India-‘Forcible sex with wife is not a marital rape’ #WTFnews


marital-rape-poster

 A Delhi Court has passed a judgement that husband’s forcible sex with wife does not amount to ‘ marital rape ‘. 

New Delhi, Dec 4/ dainik bhaskar and agencies – In a significant judgement, a court  in India has said husband’s forcible sex with his wife does not amount to “marital rape”.

The judgement was passed by District judge of a court in Indian capital, Delhi.

According to media reports, District Judge JR Aryan agreed with the defence counsel of accused Hazi Ahmed Saeed that the Indian Penal Code does not recognise any concept of “marital rape.”

The wife of Saeed had accused her of having forcibly sex with her without her consent.

Defence counsel has rightly argued that Indian Penal Code does not recognise any such concept of ‘marital rape’. If complainant was a legally-wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes,” the court said.

According to reports, Saeed’s wife had filed the case in 2007 alleging that after her first husband’s death, Saeed started visiting her and by expressing sympathy, he asked her to marry him.

She had told the court that she married Saeed in February 2006. “Later, I came to know that he had married me only to grab my property, which was then sold by him and his four sons,” she had alleged.

Police in its charge sheet had stated that Saeed had maintained physical relations with the woman after their marriage and it could be a possibility that those physical relations were against her consent and wish.

 

 

The Official Guide to Legitimate Rape #WTFnews #VAW #Rape


The Official Guide to Legitimate Rape
 

Yesterday, Missouri Rep. Todd Akin, Republican Senate nominee and member of the House Science, Space and Technology committee, said pregnancy from rape was “really rare” because “if it’s a legitimate rape, the female body has ways to try to shut that whole thing down.” Akin quickly said that he “misspoke,” but he didn’t rescind his claims that women have magical sperm-defying ovaries — or that there’s a hierarchy when it comes to different “levels” of rape.

If you’re unfamiliar with the exciting concept that your uterus can pick and choose between various kinds of rape, don’t fret. We have just the guide for you.

Non-Pregnancy Rape

For decades, conservatives have claimed that women can’t get pregnant from “legitimate” rape thanks to their wise, all-knowing uteri, psychic “juices” and Spidey Sense-like “secretions.” (Hmm, if legislators can applaud our vaginas for being so omniscient, how come they can’t let us control them?)

In 1988, Republican Pennsylvania Rep. Stephen Freind said the odds that a woman who is raped will get knocked up are “one in millions and millions and millions” because rape causes a woman to “secrete a certain secretion” that kills evil sperm. I don’t know about you guys, but my “secretions” are so judicious that they start flowing the second after an Ayn Rand-lover approaches me at a bar, before he can even utter the word “Objectivism.” I guess my vag is just highly evolved.

In 1995, North Carolina state Rep. Henry Aldridge told the House Appropriations Committee that “The facts show that people who are raped — who are truly raped — the juices don’t flow, the body functions don’t work and they don’t get pregnant. Medical authorities agree that this is a rarity, if ever.” Plan B: If your secretions can’t kill evil sperm, you just “dry up” and brush yourself off after you’re done being raped, baby-free. No biggie!

Then, there’s this famous 1999 Christian Life Resources piece from John C. Willke, a physician who was once president of the National Right to Life Committee, in which he basically just makes shit up:

Finally, factor in what is is certainly one of the most important reasons why a rape victim rarely gets pregnant, and that’s physical trauma. Every woman is aware that stress and emotional factors can alter her menstrual cycle. To get and stay pregnant a woman’s body must produce a very sophisticated mix of hormones. Hormone production is controlled by a part of the brain that is easily influenced by emotions. There’s no greater emotional trauma that can be experienced by a woman than an assault rape. This can radically upset her possibility of ovulation, fertilization, implantation and even nurturing of a pregnancy. So what further percentage reduction in pregnancy will this cause? No one knows, but this factor certainly cuts this last figure by at least 50 percent and probably more.

Got it, ladies? If you’re normal, you’ll never emotionally recover from your rape because it’s the “greatest emotional trauma” you can ever experience. But at least you’ll be too fucked up to have a baby! If your body allows basic biology to happen inside of it, your rape wasn’t aggressive enough. Try, try again?

Bad Weather Rape

In 1990, Texas Republican gubernatorial nominee Clayton Williams told ranchers that victims should take rape in stride and try to enjoy it — like when you have picnic plans but then there’s a huge thunderstorm so you decide to see a movie instead and it turns out to be a pretty enjoyable afternoon after all! Yes, Williams literally compared rape to the foggy weather that was affecting his ongoing speech by saying, “If it’s inevitable, just relax and enjoy it.”

Williams isn’t the only conservative to claim rape is akin to unfortunate weather; in 1997, Bush appointee Federal Judge James Leon Holmes said in an article that “concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami.” Because of the juices! And the secretions! And SCIENCE.

Politico Rape

Last night, Politico‘s Dave Catanese tweeted that it was “impossible” to know what Akin really meant to say when he said “legitimate rape” doesn’t lead to pregnancy. “Just maybe,” Catanese surmised, Akin “didn’t really mean ‘legitimate.’ Perhaps he meant if ‘someone IS really raped’ or ‘a rape really occurs.'” Catanese then got all huffy when people accused him of being a rape apologist, tweeting, “The left is often 1st to shut down debate as “off limits” when it deems so. Aren’t these moments supposed to open up a larger debate?”

Catanese sure has a lot of questions! Here are some others: Why is it wrong to think that Akin meant to say “legitimate” when he literally said “legitimate”? Why should we spend a millisecond of our time analyzing Akin’s deep thoughts on the “science” behind the female body’s ability to “shut down” if she’s being raped? Why does Akin deserve the benefit of the doubt at all? Why is aPolitico reporter more concerned with all of the mythological crazy ladies out there claiming fake rape than with the fact that a state representative who sits on the House Science committee doesn’t understand how pregnancy works?

Forcible Rape and/or Assault Rape

Last year, Ye Grand Protector of All Womenfolk Rep. Akin joined forces with GOP VP candidate Paul Ryan to co-sponsor the “No Taxpayer Funding for Abortion Act”, which introduced the awesome new term “forcible rape” into our vernacular. Federal funds can only be used to pay for abortion in cases when a woman is raped; the “No Taxpayer Funding for Abortion Act” sought to chip away at that exception by clarifying that only pregnancies resulting from “forcible rape” would qualify for federally funded abortions. The true meaning of “forcible rape” was never clearly defined, and the term was eventually removed from the bill.

Yesterday, the Romney-Ryan campaign said the men disagreed with Akin’s statement and that “a Romney-Ryan administration would not oppose abortion in instances of rape.” Funny, since Ryan was one of the original co-sponsors of the “forcible rape” bill and has said that abortion should be illegal in all cases except when the mother’s life is in danger.

Marriage Rape, aka “JK LOL Doesn’t Happen!” Rape

Earlier this year, Idaho Senator Chuck Winder made good use of his time on the Senate floor when he warned everyone about those wily, dangerous housewives who didn’t get the memo that putting a ring on it = no rapes forever and ever. “I would hope that when a woman goes into a physician, with a rape issue, that that physician will indeed ask her about perhaps her marriage, was this pregnancy caused by normal relations in a marriage, or was it truly caused by a rape,” he said.

Fear of the “Wife who cried rape” is nothing new; as a state legislator, Akin once only voted for an anti-marital-rape law after wondering whether it might be used “in a real messy divorce as a tool and a legal weapon to beat up on the husband.”

“Rape” Rape

Remember when Whoopi Goldberg said Roman Polanksi didn’t, like, “rape-rape” a teenage girl? “I know it wasn’t rape-rape,” she said on The View. “It was something else but I don’t believe it was rape-rape. He went to jail and and when they let him out he was like ‘You know what this guy’s going to give me a hundred years in jail I’m not staying, so that’s why he left.'” That “something else” that isn’t “rape rape” is a lot like….

Gray Rape

Young readers might think that “gray rape” has something to do with a certain popular BDSM bestseller, but it’s a term that’s officially been around since the ’90s. Most people think thatCosmopolitan invented the term “gray rape” in 2007, when Laura Session Stepp defined it as “sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what.” But Katie Roiphe infamously claimed “There is a gray area in which one person’s rape may be another’s bad night” in her 1994 book The Morning After: Fear, Sex and Feminism.

When the Cosmo article prompted a panel on the dangers of “grey rape,” Linda Fairstein, the former chief of the sex crimes unit at the Manhattan district attorney’s office, told the New York Times that the concept had been around long before Cosmo decided it was trendy. “Certainly, in the criminal justice system there’s no such thing as gray rape,” she said. “Gray rape is not a new term and not a new experience. For journalists, it may be, but for those of us who had worked in advocacy or law enforcement, this description of something being in a gray area has been around all the time. It’s always been my job in law enforcement to separate out the facts.”

Date Rape

“Date” rape is the opposite of “stranger” rape, which is everyone’s favorite kind of rape, because if the attacker is a crazy inhuman savage jumping out of the bushes and never to be seen again (unless shot to death by a nearby princely fellow carrying a gun specifically for cut-and-dry situations such as these), there’s no need to acknowledge rape culture or try and educate people about complicated issues of consent.

The term entered the national consciousness in 1985, when Ms. Magazine published a three-year federally-funded study by psychologist Mary P. Koss on date rape on college campuses. The study found that one in four college women were victims of rape or attempted rape, and that only one in four women had experienced sexual assault that met the legal definition of rape at the time. In the piece, Koss encouraged women to reconsider their past experiences and ask themselves if they had actually consented, even if the person in question was a friend.

When we attach “date” as a modifier to rape, the term becomes quainter and less violent; it implies the attacker and the victim were friendly, making the situation more convoluted. Which it very well may be. But “date rape” is much more common than “stranger rape.” According toRAINN, the Rape, Abuse and Incest National Network, approximately two-thirds of rapes were committed by someone known to the victim, 73 percent of sexual assaults were perpetrated by a non-stranger, and 38 percent of rapists are a friend or acquaintance.

Why do we feel the need to get so specific when a rape is “date” rape if that’s the unfortunate norm?

Rape

RAINN defines rape as “forced sexual intercourse, including vaginal, anal, or oral penetration. Penetration may be by a body part or an object.” To clarify: “Rape victims may be forced through threats or physical means. In about 8 out of 10 rapes, no weapon is used other than physical force. Anyone may be a victim of rape: women, men or children, straight or gay.”

(And here’s some additional info for Scientist Akin: according to a 1996 article in the American Journal of Obstetrics and Gynecology, “among adult women an estimated 32,101 pregnancies result from rape each year.” According to Planned Parenthood, more than five percent of all rapes result in pregnancy.)

Let’s stop differentiating between different types of rape as if they were different flavors at an ice cream shop. Politicians need to get over the pervasive fear that adopting a zero-tolerance attitude towards rape means that people will be able to disingenuously “cry rape” if they’re having a bad day. That’s not going to happen. You know what’s way more dangerous? Allowing legislators like Akin to make declarative statements that are unarguably false. If you don’t know how basic biology works, you shouldn’t be able to hold a government position that gives you real power over the bodies of millions of women.

Sure, it would be a hell of a lot easier if uteri were able to define rape for us. But they can’t, and it’s insane to pretend otherwise.

Oriiginal article here-http://jezebel.com/5936160/the-official-guide-to-legitimate-rape

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