Submission to the Committee headed by Justice J.S. Verma on Amendment of Laws Relating to Rape and Sexual Assault

Partners for Law in Development New Delhi
5th January, 2013

Partners for Law in Development (PLD) is a legal resource group that facilitates assertion of social justice and women’s rights, addressing amongst other aspects, violence against women and women’s rights vis a vis the family. We are based in New Delhi, but have been working in the states of Rajasthan, Chhattisgarh, Jharkhand, Bihar and Orissa.

PLD has been actively involved in the process of sexual assault law reform for the last 15 years. More recently, we have been part of the civil society responses to the 2010 and 2012 Criminal Law Amendment Bills. However, we are deeply concerned that the responses and concerns expressed by the women’s organizations and the larger civil society to the proposed amendments have not been taken into account by the government.

The following submissions are not exhaustive. They cover elements of state responsibility in relation to prevention, protection, prosecution, punishment and compensation necessary for addressing sexual violence against women. State response and law reform relating to all sexual crimes is needed and necessary. In fact any plan to deter aggravated sexual assault must include action against lesser and routine sexual offences. Our submissions therefore go beyond the limited scope of reference assigned to the Committee, and we strongly recommend that the Committee’s recommendations address comprehensive changes that are long overdue.

Substantive Provisions

1. The definition and scope of the offence of sexual assault: The offence of rape currently includes only the act of peno-vaginal penetration. However there are other penetrative forms of sexual assault, all of which need to be recognised on par as sexual assault. It is suggested that the offence of ‘rape’ be substituted with a graded offence of ‘sexual assault’ which shall include all acts where a man uses objects, penis, fingers or any other body part to penetrate the vagina, urethra, anus or mouth of a woman. The amended Sections 375, 376, 376 A,B,C and D must remain gender specific. In India, sexual assault occurs within the framework of gender power relations comprising predominantly of male violence against women. The law must explicitly recognise this. We are opposed to the gender neutral definition of sexual assault proposed in the Criminal Law Amendment Bill of 2012, as it suggests that rape could potentially be perpetrated by a woman against a man. Placing women on an equal footing with men as perpetrators of rape lacks any evidenciary basis and will be counter productive in a context where the victim gets blamed for inviting rape, and rape complaints are often dismissed as false.

2. Same sex sexual assault: Same sex sexual assault must be addressed separately and explicitly for realistic protection and redress. With Section 377 retained in its original form in the penal code, the shadow of criminality continues to hang over homosexuality, making it risky to report same sex sexual assault. An amended Section 377 will erase criminality completely, replacing it with an clear formulation penalising same sex sexual assault, leaving no doubt about the intent and application of the provision. We strongly recommend that the Section 377 be re-drafted in accordance with the Delhi High Court judgment in Naz Foundation vs NCT of Delhi, in gender neutral language to address same sex sexual assault, as well as sexual assault against transsexuals and transgender persons. Sexual offences against children will be covered by the Protection of Children from Sexual Offences Act 2012.

3. Aggravated Sexual Assault: Section 376 to include instances of sexual assault during sectarian (caste, ethnic, communal) violence, sexual assault against physically and mentally disabled women, and sexual assault carried out by the security forces. In such cases, the principle of command and superior responsibility are necessary to facilitate prosecution for actions and inactions of those in positions of command and leadership that allowed sexual assault to be perpetrated.

4. Acid Attack: A separate offence of acid attack be included. While sexual motives (rejection or transgression) are known to be the motive of most acid attacks, and that these nearly always target women, the offence needs to be defined in gender neutral language. There are cases where men and children accompanying the victim also bear the brunt of the attack. In a few cases, men are similarly targeted with acid for revenge. The law on acid crimes and control has been in force for 10 years in Bangladesh, and for 2 years in Pakistan and are gender neutral in language but enacted in response to its manifestation as a gender specific crime. Accounts from Bangladesh indicate that gender neutrality has helped respond to male victims who suffer collateral damage when women are targetted.

5. Change of Vocabulary: Outdated and offensive terms such as ‘rape’ ‘ravishment’ ‘enticement’ ‘chastity’ ‘outraging of modesty’ in the substantive provisions, to be replaced with terms that define harms in terms of sexual assault, violence and violation of bodily integrity.

6. Age of Consent: The age of consent for sexual assault must be 16 years. Additionally, if a girl between 16 to 18 years denies consent, the court must accept her testimony without corroboration. Likewise, if the girl between 16 to 18 years admits consent before the court in a case of rape against a peer, the charges against the accused should be dropped. This is to prevent criminalization of sexual expression amongst peers by young persons, often against the wishes of their parents. This approach introduces the concept of ‘evolving capacities’ for sexual expression amongst young persons, and harmonises the proposed reform of the IPC with the Protection of Children from Sexual Offences Act 2012, that has increased the statutory age of consent to 18 years. Any such cut off age is always arbitrary, and the law must be cognizant of evolving capacities to consent to sex between peers. We recommend that a peer is no more than 4-5 years apart in age.

7. Sexual harassment of women: Currently this is covered by Section 354 and 509. These provisions to be replaced by a graded offence of violating the bodily integrity of women. Acts within the

gradation to include, public stripping and parading of women, tonsuring the hair, blackening the face and parading, groping and pinching of women, and also non-contact acts such as flashing, gesture, stalking, blackmailing via electronic media like MMS, etc. The recognition of this set of sexual offences is vital for responding and punishing a range of offences, that when unpunished, fuel perpetration of lesser and aggravated forms of sexual assault. This comprises the set of crimes that are routine, carried out with impunity, and have normalized sexual violence against women.

8. Marital rape: Marriage does not imply consent of the wife to sexual intercourse with the husband. For any sexual act between the husband and the wife to be consensual, the consent of the wife must be real and explicit and not assumed. India is one of the very few countries which continue to retain the marital rape exception to the definition of rape. This clause must be repealed and forced sexual assault by the husband must be recognized as a criminal offence.

Reparation & Support Services

1. Reparation includes both compensation and rehabilitation for the victim. Reparative justice for violence against women, including sexual violence, must integrate support services for healing and recovery of the victim. To that end, it should be the obligation of the State to make provisions for medical treatment, psychological care, shelter and income, in order to overcome possible destitution and social ostracism.

2. The state must establish Violence Against Women Assistance Cells which would be responsible for providing immediate access to quality and free medical attention, psychological counselling, legal aid and other support services as may be required by the victim. These cells should be uniformly available and accessible in urban and rural areas, in zones of peace and conflict.

3. These Cells must provide 24-hour service, including access to interpreters for disabled victims, access to translators for victims who do not speak the local language, transport facilities, access to information about legal aid, compensation schemes and so on.

3. A case worker must be provided for each victim whose case is being investigated or prosecuted. Case workers should inform the victim/survivor in an age-appropriate way about the trial, support the cilent and listen to her concerns. Case workers should be appointed and employed by the courts and funded through the victim and witness protection programme.

4. There should be provision for compensation to the victims, computed on the basis of injury received. The first instalment should 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 reasons. Section 357A of the CrPC, which talks about awarding compensation to the victims of crimes, should be proactively enforced. It is useful to draw upon the framework for paying compensation under the SC ST Prevention of Atrocities Act, 1989. The central government has introduced a scheme for Relief and Rehabilitation for Victims of Rape. However, this scheme must be revised to be available to all victims of sexual violence, and not be conditional upon reporting the case to the police without delay or cooperation with the prosecution.

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