Criminal law bill 2013: one step forward, two steps backward, say activists

India

Women’s groups call for changes in the new Criminal Law (Amendment) Bill 2013, passed by the Union Government of India

By Team FI

Women’s groups and representatives of democratic and human rights groups, have called the Union Government’s Criminal Law (Amendment) (CLA) Bill 2013, as “taking one step forward and two steps back” in relation to “creating a law which is truly just, progressive and reflects the reality of contemporary India.”

The press release, issued after the Union Government passed the CLA Bill on March 15, 2013 states that though certain points in the CLA Bill are welcome, there are other areas where major lacunae causes serious concern. The issues raised includes the demand for the usage of the term gender-neutral for the victim of sexual violence emphasizing that victims of sexual violence are not only women but also men, and those who do not subscribe to the “normal” gender roles, that marital rape should be recognized as sexual violence, that laws that provide impunity to armed forces in relation to sexual violence must be removed and that the word “forced” to be added to the word prostitution to distinguish it from voluntary sex work.

The press release said that they welcome the fact that “only men may be accused of rape under Section 375 IPC of the Act which reflects the prevalence of the crime and reality of rape as an exercise of power in a deeply patriarchal society.” They also appreciated that stalking and voyeurism would now be non-bailable for repeat offenders. They support reducing the minimum age consent for sexual activity to 16. They also welcome that minimum imprisonment would be provided for public servants who “knowingly disobey the law.” And that “no prior sanction will be required from the government for prosecution of public servants for crimes of sexual violence.”

The following are however the areas where activists have expressed their dissatisfaction and concern. The press releases calls on the members of parliament to discuss these issues and follow the recommendations of the Justice Verma committee in letter and spirit for truly gender-just laws in India.

The press release reads:

Gender neutral victim: Victims of sexual violence are not only women but other men, and those who transgress or don’t fit into so-called “normal” gender roles – like transgender people, hijras, people with intersex variations etc. Repeated sexual offences against hijras are common knowledge and the Khairlanji events show how egregiously men can be sexually humiliated and violated by other men. While perpetrators of sexual violence must be men; the victims should be “persons”, i.e. gender neutral in appropriate sections.

Marital rape: This continues to be legal in India despite controls being proposed to address concerns of abuse. Women separated under judicial decree or otherwise, are the only ones with any protection. Ironically, complaints about marital rape are considered to go against traditional values and pose a threat to the institution of marriage, but the crime itself does not evoke such strong sanction. This is a deep failure in our laws.

Dignity and bodily integrity, not “modesty”: The language of “outraging the modesty of women” remains despite its subjective, patriarchal and moralistic nature – it should be replaced with “dignity and bodily integrity”.

No impunity under AFSPA: Laws like AFSPA, which provide total impunity to the armed forces, must go, as said by the Justice Verma Committee. We know that rape and sexual assault in areas under army control are widespread. Such offences are almost never adequately prosecuted by the institutions involved. We demand the all such cases be tried under normal criminal law in criminal courts.

Command responsibility: In cases of sexual assault committed by state personnel, authorities higher up in the hierarchy should be held liable for dereliction of duty by those under their command if they knew or should have known of the lapse.

Aggravated assault: Sexual violence committed in the context of communal or sectarian violence, or across caste-lines, is of an aggravated nature and must be treated as such.

No death penalty: Awarding death penalty in cases of sexual assault will have serious negative consequences. It is not the severity of punishment but the certainty of it that will act has a real deterrent. In fact the death penalty could increase instances of murder by rapists to keep the victim out of the witness box.

Trafficking, not voluntary sex work: We strongly agree with the prohibition of trafficking but at the same time it’s important that the government distinguishes “forced prostitution” from voluntary sex work. We propose adding the word “forced” to Article 370 to make this distinction clear.

Medical treatment and reparations: For the victim of an acid attack, sexual assault or rape, there is an immediate need from the time of injury of medical treatment, access to a safe place, surgeries, and on-going rehabilitation-related expenses. These must be borne by the State, whether it draws from a State fund, or recovers from the accused or from any other source.

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