AMENDMENTS TO RAPE LAWS

AMENDMENTS TO RAPE LAWS: PROBLEMS AND POSSIBILITIES

Newsletter Jan - Apr 2002

Almost two decades after the nation-wide campaign of the women’s movement resulted in some changes in the laws relating to rape, change is again on the anvil. Many of the old issues remain, while important issues have emerged relating to the low rate of reporting and conviction in sexual assault crimes.

The issues of ‘corroboration’, ‘consent’, ‘woman’s past sexual history’ and ‘delay in reporting’ have always been formidable issues facing the women’s groups and individual women victims. Nothing seems to have changed from the Mathura case in the late 1970s, when two policemen were acquitted of charges of raping Mathura in police custody, on the ground that the young adivasi girl did not put up sufficient resistance. The acquittal, and the implication that she consented to sex and therefore, her charge of rape was false, led to a nationwide movement to amend the law relating to rape. Sustained campaigning resulted in shifting the burden of proof onto the accused in cases of custodial rape and gang rape.

Yet, the obstacles to justice still remain. Despite the vibrant women’s movement and the reforms made in the rape laws, delay in lodging the FIR, delay in medical examination, statement before the police and testimony in court remain prime factors in favour of defence lawyers. The woman who is raped still has to undergo the humiliating experience of seizure of clothes, preparation of slides of vaginal smears, tests for presence of sperm etc., as part of evidence. The prosecution has to adduce circumstantial as well as medical evidence to establish the identity of the perpetrator. It is not only an insensitive police and judicial system that a woman has to confront but the law itself contains provisions that are used to question the credibility of a woman.

THE QUESTION OF CONSENT

Since the whole case rests on ‘consent’, the routine practice of defense lawyers is to bring in evidence that the woman’s testimony is unreliable. Here the familiar terrain may be covered: lack of physical marks of injury, her conduct before and after the incident, and, of course her character. Her conduct may involve circumstances showing that she willingly accompanied the accused, she did not raise an alarm, she did not disclose the happening immediately to someone, or there was delay in registering the complaint.

She has to undergo gruelling and humiliating cross-examination because the clause allowing the ‘past history’ of the woman has not yet been deleted. Section 155(4) of Indian Evidence Act states that if a man is prosecuted for rape or attempt to ravish, ‘it may be shown that the prosecuterix was of generally immoral character’. The Law Commission in its 84th report had recommended the deletion of this clause but this recommendation was dropped when the final Bill was placed before the Parliament. Thus, the amendments to the Rape laws did make advancement over the earlier law by including the provision that in custodial rape cases, if a woman says that she did not consent it will be presumed that she did not. But this section was not of much benefit to women because of the existence of Section 155(4) IEA. Conviction rates in cases of custodial rape did not significantly go up even after the amendment.

RAPE OF MINORS

Over the past few years, a large number of cases of rape/sexual assault that were reported have involved small girls most of whom became victims of their near relations or family friends. In many such cases violence inflicted on these children did not technically come under the ‘rape’ category. This is because the existing definition of rape consists of two basic requirements for the crime to have been committed. These are (i) proof of penetration by penis, and (ii) lack of consent on the part of the complainant. The first requirement excludes all sorts of other ways in which women experience sexual violence or abuse which are no less humiliating, damaging or traumatic. In the case of children or minors it becomes all the more problematic since all types of sexual assault are viewed only as outraging the modesty and thus considered less serious. This is because many such cases may not fulfil the technical requirement of penis penetration.

THE SEXUAL ASSAULT BILL

In a writ petition filed in 1997 by the Delhi-based NGO Sakshi in the case of sexual abuse of a minor girl, the Supreme Court was approached by the petitioner for directions concerning the definition of the expression “sexual intercourse” as contained in Section 375 of the Indian Penal Code. On the direction of the Supreme Court, Sakshi, together with IFSHA and the All India Democratic Women’s Association (AIDWA) drew up a detailed note containing the precise issues involved in the petition.

Sakshi also stated that it was wrong to classify the penetrative abuse of a child below the age of 12 as ‘unnatural offence’ under Section 377 IPC or as ‘outraging the modesty of a woman under Section 354’, only because this abuse does not fit the conventional definition of rape. In addition, they also raised the issue of continuing to treat non-consensual penetration upon such a child as an offence under Section 377 IPC on par with certain forms of consensual non-heterosexual sexual activities. The note containing these issues was sent to the Law Commision for consideration.

RECOMMENDATIONS OF THE LAW COMMISSION

The Law Commission of India after detailed discussions with Sakshi, IFSHA and AIDWA as well as the National Commission of Women in its 172nd Report recommended the changes for widening the scope of the offence in Section 375 and to make it gender neutral. The LCI also accepted the substitution of the definition of “rape” by the definition of “sexual assault”, thereby, replacing the term rape by sexual assault.

With regard to Section 376, two changes were recommended (1) where the sexual assault is committed by the father, grandfather or brother or any other person being in a position of trust or authority towards the other person, the punishment should be severe. (2) The second change suggested is increasing the age of wife under clause (f) of sub-section (2) of Section 376, from 15 to 16 years. Under Section 376A punishment for sexual assault on wife in separation increased from two years to seven years. In cases of custodial sexual assault under 376B, 376C and 376D enhancement of punishment has been recommended.

Insertion of a new Section 376E dealing with ‘unlawful sexual contact’ has been recommended. This section is intended to cover a wide variety of offences including sexual harassment at the work place and other sexual perversions. An important recommendation is with regard to the deletion of Section 377 of the IPC. In addition to the recommendations to plug certain loopholes in procedural provisions, important changes have been proposed in Section 53A, 146(4) and Section 155(4) of the Indian Evidence Act. The recommendation to drop Section 155(4) of the Evidence Act, which permitted probe into the sexual history of a woman victim, a much-needed change, has also been made.

In addition to the above a number of new provisions have been added with regard to procedural matters.

The Law Commission has not accepted the inclusion of marital rape in the category of sexual assault on the ground that “it would amount to too much intrusion into the marital relationship”.

In the meanwhile, based on the recommendations of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872, Sakshi, IFSHA and AIDWA drafted a Criminal Law Amendment Bill 2000.

MAJOR RECOMMENDATIONS OF THE BILL

It removes the word ‘rape’ and substitutes it with an expanded definition of ‘sexual assault’ and makes these offences gender neutral.

The definition of sexual assault has been widened beyond penetration of vagina by penis with a view to include other forms of sexual violence, which may be equally or more traumatic or humiliating, such as penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration. The Draft Bill has accordingly recommended that Sections 375, 376, 377, 354 and 509 of the Indian Penal Code be deleted and replaced with newer and/or expanded provisions.

The definition of ‘consent’ has been considerably improved by making it necessary that the woman give ‘unequivocal voluntary agreement’ to engage in the sexual activity in question. The Bill recommends that nothing with respect to the character or conduct of the complainant shall be considered as exceptional and special reason for reduction of sentence.

The definition of custodial has been expanded to include ‘person in uniform’, being in a position of economic or social dominance, sexual assault on a person suffering from mental and physical disability. It has also been recommended to increase punishment in cases where a person while committing sexual assault causes grievous bodily harm, maims, disfigures or endangers the life of a woman or minor.

The Bill also recommends that in cases where sentence is reduced due to special reasons, it should not be reduced to less than 7 years in custodial sexual assault cases and to less than 5 years in all the other cases.

The Bill suggests that a new section, namely Section 376D, defined as ‘unlawful sexual contact’ be inserted in the IPC to deal with sexual harassment cases. According to this section ‘whoever with a sexual purpose touches, directly or indirectly, with a part of the body or with an object any part of the body of another person… without the consent of such other person, shall be punished.’ An amendment to Section 509 has been suggested which does away with the words like outraging the modesty of a woman and replaces them with ‘words, gestures or act with a sexual purpose or with the intention to insult a woman’.

The Law Commission Report as well as the Sexual Assault Bill drafted by Sakshi, IFSHA and AIDWA has generated a lot of debate among women’s, child right’s and lesbian and gay rights groups. It was also strongly felt by many groups that the issues covered by the proposed draft Bill have not been adequately discussed by many groups and organisations working on these issues as well as by those, who are eventually going to be affected by its provisions. The need to widen the debate with a view to ascertain and understand the ideas and experiences of these groups was strongly reiterated in these meetings. After a meeting at the Maharashtra and Goa level in June and several local meetings in Delhi, a major national-level meeting was held in Mumbai from 7th to 9th December, 2001. Several contentious issues were discussed and debated in this meeting, and the statement collectively drawn up at the end of its proceedings follows this article.

CRITIQUE OF THE LAW COMMISSION RECOMMENDATIONS AND THE SEXUAL ASSAULT BILL

A critique of the provisions of the Sexual Assault Bill as well as recommendations made by the Law Commission in its 172nd report has emerged through discussions amongst organisations and individuals concerned with women’s rights, child rights, lesbian-gay-bisexual-transgender (LGBT) rights groups at various fora — both local and national. While welcoming some of the recommendations like the broadened definition of sexual assault and some of the procedural changes suggested, there was consensus on three major areas of concern.

The Law Commission recommendations and the three groups who had given their recommendations have all asked for sexual assault laws to be made gender neutral. There was strong opposition to this from all groups present except for two groups who felt that the provision of gender neutrality ought to be retained.

In the national level meeting in Mumbai, it was strongly felt that there should be separate legal provisions to deal with child sexual abuse keeping in mind the different types of sexual offences, gender, age-groups and procedures required in the case of children.

On the issue of same sex sexual assault laws, many groups especially the LGBT groups were not in favour of having any law to curb same sex violence imposed on them at this point in time. This was in response to the proposed gender-neutral laws which de facto bring into their purview the issue of lesbians, gays, bisexuals, transgendered and other sexual minorities. What is needed is the recognition of sexual identities by the state and society through introducing anti-discriminatory laws based on sexual orientation by amending Article 15 of the constitution.

CRITIQUE OF GENDER NEUTRALITY

WOMEN'S GROUPS

While certain suggested changes such as widening the definition of sexual assault, repealing of Section 377, dropping of Section 155 from the Indian Evidence Act are much needed, there are serious objections to framing a gender-neutral law on sexual violence on women. It was strongly felt that given the current socio-economic milieu, a gender-neutral sexual assault law would actually be harmful to the interests of women. Given our experience with rape laws and the legal machinery for over more than 15 years, it is clear that due to prevalent biases against women, women victims have not been able to get justice. And this despite the fact that rape has till date been treated as an offence committed on women by men. Making it gender neutral means that threats of prosecution and actual prosecution for assault may be resorted to against women. This will actually result in increasing violence against women and making them even more vulnerable.

There has been a suggestion that an exception to gender neutral law can be added, according to which no man can complain against a woman for sexually assaulting him. This might look as a safeguard but we feel that this may not be sufficient. Clubbing all types of sexual crimes and violence may result in diluting the gravity of such violence against women as this will amount to putting all types of violence at par. We feel that there is a specificity of each type of violence (child abuse, same sex assault, etc.) which needs to be acknowledged by framing different laws for different categories. Therefore, the participation of all including LGBT, child rights and women’s groups is essential.

Further, in feminist analysis all along sexual assault/rape has been understood as gendered crime, where male sexual power is used to subjugate women. This specificity and understanding is relevant even today and hence sexual assault laws cannot be made gender neutral in much the same way as domestic violence laws cannot be made gender neutral. We also have to understand that despite a vibrant women’s movement and reformed laws relating to women, violence, sexual or otherwise has not decreased. There has not been so much socio-cultural and legal development, to make out a case for gender-neutral laws. At the same time we understand the need for recognising sexual violence on other social categories by making separate sections or laws. The challenge is not to avoid putting these into a legal framework because in a majority of the cases only women are subjected to sexual assault, but to frame the law in a way, which would cover even the unlikely cases without creating more problems for women. This can be further explored through detailed discussions among all of us.

During the discussions held at both Delhi and Mumbai, various other issues came up. In many cases due to several reasons both social and logistical, there is a delay in filing a complaint. What is the way in which this can be dealt with? Is there a possibility to develop some mechanisms within the law to deal with this problem? There was no unanimity about dropping the word ‘rape’ and substituting the phrase ‘sexual assault’. While everyone felt that the widened definition was welcome, some are apprehensive that doing away with the words ‘rape’ and ‘rapist’ may dilute the seriousness of the crime, particularly in terms of social disapproval. Also, women’s groups expressed a strong apprehension that the severity of punishment could get reduced, since sentences are so arbitrary in any case. Those in favour of dropping the word ‘rape’ feel that the patriarchal notions of ‘shame’ ‘honour’ would be replaced by a concept that articulates the violence inherent in sexual assault. A question raised was whether we should use the word rape to mean only penile penetration. It was suggested by some that the retention of the word rape along with the widened definition of sexual assault should be worked out.

LGBT GROUPS

The LCI recommendations and Sexual Assault Bill affect people from sexual minorities because of inclusion of gender neutrality in sexual assault laws and deletion of Section 377 of the IPC. Many sexual minority rights groups active in the past few years in the country have articulated their concerns about legislating on same-sex sexual violence. In addition, they have been demanding the repeal of Section 377 since years.

The LGBT groups discussing the issue felt that a gender-neutral law that acknowledges same sex violence as done in the draft Bill would work against them, in view of the fact that sexual minorities have not been given any positive recognition either through law or by the society. Certain same sex sexual acts have in fact been criminalised and there are no positive anti-discrimination clauses to protect their human and other civil rights. The amendment of Article 15 of the constitution by introducing anti-discriminatory laws based on sexual orientation was stressed by many.

CHILD RIGHTS

Child rights groups felt that there should be a separate law to deal with child sexual abuse to take care of both the substantive and procedural law. There should be specific provisions keeping in mind the gender, age and different types of sexual offences a child is subjected to. The legislation must also cover within its ambit incest, child sex tourism, child pornography, organised pedophilia, sexual assault in the name of religion, abuse at the workplace and all other inter-connected offences. It is also very necessary to have a child friendly procedural system, which recognises the damage being caused to the children within the present system. Confrontation between the child and the accused should be limited, special courts must be designated to handle cases with regard to child sexual abuse and exploitation, time bound expedited legislation, etc. A child related law must also look into the aspects of victim assistance and support, rehabilitation and diverse legal remedies, they felt.

CURRENT STATUS

In view of these contentious issues, many groups felt that the draft Bill is not acceptable in its present form. The Law Minister has been apprised of these developments as well as the need to take into account the viewpoints of other groups before taking the Bill to the Parliament. This was done in view of the fact that the Bill drafted by Sakshi, IFSHA and AIDWA is already with the government. Therefore, there is an urgent need to frame an alternative Bill and pressurise the government not to pass a gender-neutral law.

Taking note of several suggestions from groups in Delhi and those present at the Mumbai meeting, AIDWA is re-drafting the Bill. The whole process is beset with a number of problems. The issue itself needs more time to involve many more groups as the changes suggested will be affecting various sections of society. There is also a plan to meet the Law Minster in the end of February 2002 and apprise him of all these difficulties. Meanwhile, the campaign seeking better laws against sexual violence needs to be sustained at various other levels.