After the barbaric gang rape and death of the 23 year old paramedical student Jyoti, which triggered a mass protest and awakened the ignorant insensitivity of our society that is still indifferent towards its women, the big debate has taken the centre stage again. What should be the punishment for rapists? The feminist fury wrote down their anger on placards in big bold letters favouring castration and less furious ones went for hanging, I tried to read through what the rape laws of our constitution say, and thought of seeking an answer.
Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code, 1860)
A man is said to commit "rape" if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-
1. Against her will.
2. Without her consent.
3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
6. With or without her consent, when she is under sixteen years of age.
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Penetration is improperly defined and at common law, was defined as the penetration of the sexual organ of the female by the sexual organ of the male. Sexual intercourse is the only way rape happens and most statues do not recognize penetration of the female organ with a foreign object other than the male organ. When rape laws were written, women were the property of men. Virgin daughters were a priceless commodity for the fathers while the wives were a valuable chattel for the husband. Since rape was a property offense, the father or the husband was the victim and the act, a measuring rod for the conduct of the victimized woman.
Delaware’s unlawful sexual intercourse statute is common to most jurisdictions. Delaware’s statute provides that one is guilty of a class A felony when the person intentionally engages in sexual intercourse "without the victim's consent." Sexual intercourse is defined as "[a]ny act of physical union of the genitalia or anus of [one] person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight." Sexual intercourse is also defined as “[a]ny act of cunnilingus or fellatio, regardless of whether penetration occurs." Cunnilingus is "any oral contact with the female genitalia." Sexual contact is "any intentional touching of the anus, breast, buttocks or genitalia of another person, which touching, under the circumstances as viewed by a reasonable person, is sexual in nature. Sexual contact shall also include touching of those specified areas when covered by clothing." For the woman, the physical contact of her genitalia, her clitoris, her sex organ by the penis or any object may be considered to be as violative as the penetration of her vagina.
In case of Jyoti, her perpetrators who have been charged under Indian Penal Code Sections 302 (murder), 307 (attempt to murder), 376 (2)(g) (gangrape), 377 (unnatural offences), 395 (dacoity), 396 (murder in dacoity), 394 (hurting in dacoity), 201 (destruction of evidence), 120B (conspiracy), 34 (common intention) and 412 (dishonestly receiving stolen property). While the five accused who are above the age of 18 years are Ram Singh, Mukesh Singh, Vinay Sharma, Pawan Gupta and Akshay Singh Thakur; the sixth is a minor. The reason might be that the victim's friend managed to save himself and her from getting killed and later appeared as witnesses to spell their trauma. What added fuel to this fire was the ample agitation which managed to grab the attention of the west as well, who have in all agreement with the anxious Indian citizens called for global standard for the Indian rape laws. But then in how many cases does an unassuming victim of sexual violence escape from the clutches of her crooked culprits? Very very few times, and in most cases she is left with very little courage to fight for justice considering the insensitivity and ignorance of the police and the society.
Shouldn't we call for stronger laws that make the police accountable in every case. Perhaps, as suggested by Ms. Kiran Bedi, ex IPS officer and social activist, a beat system can be a conducive choice. Where in the officer in charge of the beat which is a jurisdiction under his responsibility will take into account the details of the residents living in the area. People with criminal records will be answerable to the beat officer, which can tremendously be helpful in keeping a check on criminals and reducing the crime rate, and that doesn't hold true for just crimes against women. And also, should the cops be sensitized and liable to punishment if they fail to perform their duties.
In today's times when offences against women are on the rise( rape cases have risen by 873 percent since 1953), when young girls are raped by their doctors on the pretext of examination, by presidential guards in daring daylight, the definition of rape seems to be of no deterrence- has been defiantly defined. It does not address forced penetration of objects and parts of the body into the vagina and anus; and forced oral or anal intercourse.
It also does not name other forms of sexual assaults- like prolonged sexual assault by relatives like cousins or uncles, marital rape etc. as aggravated forms of rape. This does not bring justice to many victims who spend decades or perhaps a lifetime knocking at the court room's door seeking justice. In many cases of child rape, the child has been penetrated with fingers or by objects or been forcefully threatened to perform oral or anal sex; yet this is not considered rape by the Courts.
Adding to this is Section. 155(4) of the Evidence Act, which allows the victim to be questioned of her past sexual history- which the defense uses to humiliate the victim in the Courtroom.
One of the major obstacles in delivering justice in rape cases is the poor quality of investigations, for gender bias and corruption and inefficiency of the police act as stumbling blocks in the road to justice. In many cases the police have even refused to lodge the FIR or have lodged an incomplete FIR leading to many cases being closed carelessly. Many times the rich and the affluent manage to get away with no FIR in their name, which needs to be dealt with. The law must treat everyone equally, the rich and the poor alike.
The victims are not taken for prompt medical examination, because in cases of rape, or attempt to rape- medical examination of the victim and of the accused soon after the incident often yields a wealth of corroborative evidence. Therefore, such an opportunity should be grabbed by the police with both hands. A call for doing away the "two finger" test is also important, which is a clear violation of a woman's dignity.
The manner in which some courts have interpreted the law or valuated the evidence has often been an obstacle. Inspite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without credible evidence is not considered important and most often she is shrugged pointing a finger at her character and her lifestyle.
Long rape trial often allow senseless adjournments; and the giving of evidence by the victim in the presence of the accused and the harsh cross examination in the Court are some other major barriers which need to be removed with immediate effect. The need in this case is for speedy trial courts that can ensure justice in a shorter span of time than how it happens now and with more respect meted out to the victim.
Failure of law reflects the failure of the society to protect and serve humanity and grant equal human rights to both men and women.
The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.
‘Rape’ should be replaced by the term ‘sexual assault’.
‘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.
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.
Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
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.
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.
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 Supreme Court has laid down the following guidelines for the trial of rape cases:
1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted. The Advocates role should not merely be of explaining to the victim the nature of the proceedings, to prepare for the case and assist her, but to provide her with guidance as to how she might obtain help of a different nature from other agencies- for e.g. psychiatric consultation or medical assistance.
2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state. Guidance and support of a lawyer at this stage would be of great help.
3. The police should be under a duty to inform the victim of her right to a counsel before being interrogated.
4. A list of lawyers willing to act in these cases should be kept at the police station.
5. Advocates shall be appointed by the Court on an application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.
6. In all rape trials, anonymity of the victim must be maintained
7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses.
8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.
9. Juvenile justice act needs to be looked into for there has been a jump in the crimes committed by juveniles since the change in the definition of a juvenile. In 2000, 198 cases of rapes committed by juveniles were reported. Incidentally, in the same year, the Centre changed the age definition of a juvenile from 16 to 18 years.
In 2011, as many as 1,149 cases of rapes by juveniles were reported. Recently, the Delhi High court demanded exclusion of those above 16 years from the purview of the Juvenile Justice act committing serious crimes like rape and murder.
The National Commission for Women be asked to frame schemes for compensation and rehabilitation to ensure justice to the victims of such crimes.
As observed by Krishna Iyer, J. in Rafique’s case:
"When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry."
Therefore rape laws in order to be of prohibitory preclusion must have a cooperative victim, co-coordinated investigation, diligent prosecution; and a punctual and speedy trial. Else it's not the law that fails but the applicants, the process and application. Hanging to death the rapists or castration is not the only measure that will deter rape, infact it might in most cases lead the rapist to kill the victim for that will wipe out the evidence.
Special public prosecutor Ujjwal Nikam says increase in the jail term to 25 years or till death should serve the purpose.
Police should be sensitized about handling cases related to crime against women, he said.
Generally, there is no eyewitness in the cases of sexual assault. Hence, the police investigation and trial take place based on the version given by the victim. This bring limitations on legal provisions, Nikam maintained.
He suggested that evidence in rape cases should be recorded through video conferencing.
What do you think will be the ideal punishment for rapists in the wake of the increasing rape cases in India? Should it be chemical castration or surgical castration as it happens in some states of the United states of America, whipping and stoning to death as it happens in places like Saudi Arabia or the highest punishment awarded in India, killing by hanging. What will render justice to a victim of something as brutally personal as rape?