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Womens activists welcome decision to substitute rape with sexual assault
Womens activists and lawyers have welcomed a cabinet decision to broaden the definition of rape to include all sexual crimes.
In view of the increasing number of sexual crimes, the government has sought to make rape laws gender neutral by substituting the term rape with sexual assault and has also included acid attacks as a separate offence with stricter punishment.
While the cabinets move has been widely welcomed by women activists and lawyers, some were unhappy with raising the age limit in the definition of minors to 18 years.
Ranjana Kumari, director of Centre for Social Research, said it was a welcome move.
The law is made to cover all forms of sexual assault, not just penal penetration. This is welcome as it has broadened the purview of the law and many other kinds of crimes will be covered, Kumari told IANS, adding that it would help many young men who face sexual assault by their bosses to come out.
The Chairperson of the National Commission for Women, Mamta Sharma, said she was glad the cabinet had accepted most of the panels recommendations.
Our recommendations have been accepted to change section 376 of the Indian Penal Code (rape) and the punishment has been enhanced from seven years, from 10 years to life depending on the circumstances.
Section 375 of the IPC which defines rape, has also been changed to include provisions like when the woman is lured into having sex with promise of marriage or made to consume an intoxicant or by fraud. These have been made punishable, Sharma told IANS.
Sharma said the provision for stricter punishment for acid attacks 10 years was suggested by the NCW. Now even the attempt to throw acid will be made punishable, she added.
She said the NCW is pushing to also make stalking a crime.
Supreme Court senior advocate Kamini Jaiswal told IANS: I dont think the law needs to be changed. But the implementation of the law and the certainty of justice should be there. The authorities should ensure the punishment is handed down within six months, she added.
Apex court advocate Pinki Anand said she was more interested and happy to note the changes in the law relating to acid attacks.
Making the rape definition gender neutral is not a major issue, the more important is the crime of acid attacks that is basically not covered under the IPC. So far, there was no provision and people were getting away scot free, she told IANS.
On the provision of raising the age definition of minor to below 18 years however, the reactions from women activists were not as laudatory.
Ranjana Kumari said that by raising the age definition it should not criminalise two consenting teens engaging in sex. If they are consenting minors and engaging in sex, then it should not be criminalised, she said.
Commenting on the provision, lawyer Pinki Anand said that she felt it should not happen, and ultimately seen in scientific and biological terms, I am not comfortable with raising the age of consent.
Annie Raja said if the government was raising the age definition of minor to below 18, then they should also define the age of a child. She said the definition of child was different in different contexts, including by a paediatrician and under labour laws. Raising the age has positive and negative aspects how to address the issues arising from it needs to be debated more.
According to the National Crime Records Bureau, incidents of rape rose from over 16,000 in 2001 to over 24,000 in 2011 in the country.
Replace rape with sexual assault: Cabinet
New Delhi: In order to make rape laws gender neutral, the government has cleared a proposal to substitute the term “sexual assault” in place of “rape” and widen the scope of the offence in the Criminal Law (Amendment) Bill, 2012, it was announced Friday.
The union cabinet on Thursday approved the proposal for the bill which will be introduced in the parliament in the coming monsoon session.
The age of consent has been raised from 16 years to 18 years in case of sexual assault and the punishment will be a minimum seven to 10 years in jail, said officials.
The bill proposes that sexual intercourse by a man with his wife under 16 years of age is not sexual assault.
Provision for enhancement of punishment for making acid attack a specific offence have been made in the bill.
The Law Commission of India in its 172nd Report on Review of Rape Laws as well the National Commission for Women had recommended stringent punishment for the offence of rape.
Rape law amendment: ‘Where are the cases of sexual violence against men?’
The tweaking the definition of rape to make it gender neutral in the Criminal Law Amendment Bill 2011 has devolved into a debate that pitches gay right activists against those working for stringent implementation of women friendly laws.
If the current draft of the Bill becomes law, it is going to change the way the term ‘rape’ is used, misused and abused in India. The government plans to widen the ambit of rape to include ‘sexual assault’. It proposes to make sexual assault gender neutral by including sexual violence by man against man, woman against woman and the most controversial one- by a woman against man. The modifications to the Indian Penal Code (IPC) can alter the debates and studies on gender and law in the country.
Whether this is the right time for a gender-neutral law rape law in India or not, depends on whom you ask. The National Alliance to End Sexual Violence (NASV), a Washington based association working to end sexual violence notes that about 14 per cent of reported rapes in the US involve men or boys, that one in six reported sexual assaults is against a boy and one in 25 reported sexual assaults is against a man .
In India, data from the National Crime Records Bureau reveals there has been an eight fold increase in the number of rapes committed on women in the last four decades. The rise in the number of rape cases is the most rapid as compared to other serious crimes such as murder, robbery and kidnapping. Contrast this with hardly any reported cases of sexual violence against men.
D. Geetha, a Chennai based lawyer who specializes in women’s issues, says Parliament is turning a blind to the more serious problem of violence against women and enacting a law that is out of sync with the country’s social realities.
“Where are the cases of sexual violence against men? Tackling sexual violence against women and the way they are treated in our society is the need of the hour. They are vulnerable at home, work and even in police stations. Rather than working for gender neutral law, we should work to strengthen the justice delivery mechanism for women,” she said.
“The law making machinery should respond to the need of the community and not the other way round,” Geetha said.
Mumbai-based women’s rights activist and lawyer Flavia Agnes believes that rather than helping any community, the law will leave the judiciary confused.
“I oppose the proposal to make rape laws gender neutral. There is physicality in the definition of rape, there is use of power and the victim has a stigma attached to her. If made gender-neutral, rape laws will not have the deterrence value and it will make it more complicated for judges in court,” Agnes told The Times of India.
However, for some like Anjali Gopalan of Naz foundation, a Delhi-based NGO working for the cause of the LGBT community and has been lobbying for a gender-neutral law for more than a decade, this is a success.
She has been arguing that anyone who can be raped, including men, should have recourse to justice.
Rapes on men are as real as rapes on women but the former are not reported because of which there is no authentic data on such cases, said Gopalan.
“People from the LGBT community are looked down in our society. In cases of sexual violence, men feel helpless. They can approach no one. If some of them gather the courage to go the police station, the case is not registered. They make fun of the victim,” she said.
One of the presumptions made in the Bill that has left the activists divided, is that sexual violence that women victims face is comparable to that faced by male victims. Effectively, it means that the trauma, agony and the stigma faced by men in such cases is comparable to what is experienced by women, as highlighted by NASV.
According to senior Supreme Court lawyer Vrinda Grover, who is a strong opponent of the Bill, the only situation justifying a gender neutral law, is a repeal of section 377 of the Indian Penal Code relating to homosexual sex.
“If consensual sexual behaviour among adult men is allowed by the law, then you would have the need to introduce a law which criminalizes non- consensual sex between two adult men,” said she.
In June 2009, Delhi High Court decriminalized consensual sex among same sex adults, ruling that it violated the fundamental right and liberty mandated in the constitution. However, the order was challenged in Supreme Court, which is yet to pronounce its judgment.
The Bill also promulgates the theory that women can be the perpetrators of sexual violence against other women, men and children. If the definition of rape is widened to to include acts other than forced sexual penetration, which the current IPC definition says, then women are as capable of sexual violence against children as men are.
“But it certainly not be called rape,” said Gopalan.
Strangely enough, marital rape, an aspect of sexual violence that many women in India face, is not addressed by the legislation. The Bill though does propose to amend section 375 of IPC to increase the age of consensual sex for a married woman from 15 to 16 years.
“There is a clear contradiction here. The Child Marriage Act says that marriageable age of a girl is 18 years. But here, the government says that if a girl below 16 is having consensual sex, it is legitimate,” said Hasina Kharbih from Impulse, a human rights group.
“It is strange that the government is amending the rape law and it has nothing to put an end to marital rapes which is an open secret in India.” she added.
Rape law: Are women activists barking up the wrong tree?
A bad workman invariably complains about his tools. Does the analogy hold good when a policeman cribs about the inadequacy of the law? Not really. He has no doubt many faults, including more than a streak of insensitivity and dishonesty while dealing with crime victims.
But you must remember that he is, at the same time, stuck with far too many archaic statutes which curb his professional response to crime. Both the Criminal Procedure Code (CrPC) and the Indian Evidence Act are so loaded against the crime investigator that it is a matter of wonder we can still get a few offenders convicted by the courts.
Take, for instance, the CrPC prohibition against keeping a suspect in police custody beyond 24 hours. The rationale: the police will otherwise resort to illegal custody of hapless suspects. Equally prejudiced is the Evidence Act’s stipulation that no confession made by an offender to a police officer will be admissible in evidence, unless it leads to the recovery of a material fact.
These and similar provisions of law are meant to quell dishonesty in the police. But they also have the unintended and undesirable effect of transforming a large number of honest policemen into being dishonest.
It is against this backdrop that we may have to examine the latest Cabinet clearance for changes in the law against rape. These have come about after more than a decade of debate over the Law Commission’s recommendations in their 172nd Report.
There has been a mixed response to these changes from women activists. Their objection to rechristening ‘rape’ as ‘sexual assault’ and making the crime gender neutral is perplexing. They feel that ‘sexual assault’ makes the crime of ‘rape’ less grave. My belief is that they should be more concerned with the definition rather than the name given to the offence. They are right to assert that assaults on men are few and far between, a fact that perhaps does not warrant specific recognition of the phenomenon.
However, I still fail to understand why this new feature in the criminal law should excite them. It is nothing more than a recognition of perceptible changes in human behaviour and the near legalisation of gay marriages in the West, something that we could witness in our own country not long from now.
Gay alliances in matrimony are bound to bring in the menace of man attacking man in pursuit of sex. We already know how young boys are preyed upon by elders in positions of authority or influence. The latest scandal at Penn State University, where a football coach indulged in systematic abuse of boys for more than a decade, may cease to be an aberration very soon, but become a frequent occurrence in the most unexpected places.
The enhancement of the age of consent for sex from 16 to 18 is another concession to societal change to which we can hardly take exception. Enhancement of penalties, especially in the case of custodial rape, is a move in the right direction.
Generally speaking, therefore, the government’s move to tweak the law on sex offences is to be endorsed rather than criticised. Let us wait to see how Parliament reacts to the bill when it is introduced. I hope both the Houses will deliberate rather than rush through the process.
What amuses me, however, is the superficiality of some of the women’s organisations in discussing the subject in public. They seem to believe that strong penalties will deter crime against women. This is hardly the experience the world over. It is the certainty of punishment rather than severity that can bring down crime in the future. A spinoff is also that courts will demand a higher degree of proof when imposing a sentence as harsh as seven years.
Given the peculiar circumstances — especially the secrecy that envelops the predator’s conduct — under which sexual attacks take place, proving criminal behaviour in rape is a complex task. We cannot also be blind to the fact that, in a large number of cases, the offender is very well known, as a friend or a relative, to the victim. As a result, evidence collection and credible testimony by a victim or her associates become problem-ridden.
This is why a majority of sexual offences fail in court. We can possibly improve the situation by enhancing the quality of police investigation, again an exercise that needs great skill and perseverance at the investigator’s level. An occasional case that invites huge media attention receives fair police attention. But what about cases reported from rural India which do not excite TV channels or newspapermen, only because of the lack of glamour and difficult access to victims who are invariably intimidated into silence?
There is a real sociological problem here which no law can tackle. If pessimists, therefore, assail the proposed changes to the rape law as being merely cosmetic, we cannot get worked up. This is the hard reality of an India which wants to be modern but remains steeped in a welter of ancient beliefs and customs. If the police force reflects this contradiction, it is but natural, however frustrating it might be to many of us who look for a sleek and efficient law enforcement agency.
The writer is a former Director, Central Bureau of Investigation, and New Delhi.
Womens activists and lawyers have welcomed a cabinet decision to broaden the definition of rape to include all sexual crimes.
In view of the increasing number of sexual crimes, the government has sought to make rape laws gender neutral by substituting the term rape with sexual assault and has also included acid attacks as a separate offence with stricter punishment.
While the cabinets move has been widely welcomed by women activists and lawyers, some were unhappy with raising the age limit in the definition of minors to 18 years.
Ranjana Kumari, director of Centre for Social Research, said it was a welcome move.
The law is made to cover all forms of sexual assault, not just penal penetration. This is welcome as it has broadened the purview of the law and many other kinds of crimes will be covered, Kumari told IANS, adding that it would help many young men who face sexual assault by their bosses to come out.
The Chairperson of the National Commission for Women, Mamta Sharma, said she was glad the cabinet had accepted most of the panels recommendations.
Our recommendations have been accepted to change section 376 of the Indian Penal Code (rape) and the punishment has been enhanced from seven years, from 10 years to life depending on the circumstances.
Section 375 of the IPC which defines rape, has also been changed to include provisions like when the woman is lured into having sex with promise of marriage or made to consume an intoxicant or by fraud. These have been made punishable, Sharma told IANS.
Sharma said the provision for stricter punishment for acid attacks 10 years was suggested by the NCW. Now even the attempt to throw acid will be made punishable, she added.
She said the NCW is pushing to also make stalking a crime.
Supreme Court senior advocate Kamini Jaiswal told IANS: I dont think the law needs to be changed. But the implementation of the law and the certainty of justice should be there. The authorities should ensure the punishment is handed down within six months, she added.
Apex court advocate Pinki Anand said she was more interested and happy to note the changes in the law relating to acid attacks.
Making the rape definition gender neutral is not a major issue, the more important is the crime of acid attacks that is basically not covered under the IPC. So far, there was no provision and people were getting away scot free, she told IANS.
On the provision of raising the age definition of minor to below 18 years however, the reactions from women activists were not as laudatory.
Ranjana Kumari said that by raising the age definition it should not criminalise two consenting teens engaging in sex. If they are consenting minors and engaging in sex, then it should not be criminalised, she said.
Commenting on the provision, lawyer Pinki Anand said that she felt it should not happen, and ultimately seen in scientific and biological terms, I am not comfortable with raising the age of consent.
Annie Raja said if the government was raising the age definition of minor to below 18, then they should also define the age of a child. She said the definition of child was different in different contexts, including by a paediatrician and under labour laws. Raising the age has positive and negative aspects how to address the issues arising from it needs to be debated more.
According to the National Crime Records Bureau, incidents of rape rose from over 16,000 in 2001 to over 24,000 in 2011 in the country.
Replace rape with sexual assault: Cabinet
New Delhi: In order to make rape laws gender neutral, the government has cleared a proposal to substitute the term “sexual assault” in place of “rape” and widen the scope of the offence in the Criminal Law (Amendment) Bill, 2012, it was announced Friday.
The union cabinet on Thursday approved the proposal for the bill which will be introduced in the parliament in the coming monsoon session.
The age of consent has been raised from 16 years to 18 years in case of sexual assault and the punishment will be a minimum seven to 10 years in jail, said officials.
The bill proposes that sexual intercourse by a man with his wife under 16 years of age is not sexual assault.
Provision for enhancement of punishment for making acid attack a specific offence have been made in the bill.
The Law Commission of India in its 172nd Report on Review of Rape Laws as well the National Commission for Women had recommended stringent punishment for the offence of rape.
Rape law amendment: ‘Where are the cases of sexual violence against men?’
The tweaking the definition of rape to make it gender neutral in the Criminal Law Amendment Bill 2011 has devolved into a debate that pitches gay right activists against those working for stringent implementation of women friendly laws.
If the current draft of the Bill becomes law, it is going to change the way the term ‘rape’ is used, misused and abused in India. The government plans to widen the ambit of rape to include ‘sexual assault’. It proposes to make sexual assault gender neutral by including sexual violence by man against man, woman against woman and the most controversial one- by a woman against man. The modifications to the Indian Penal Code (IPC) can alter the debates and studies on gender and law in the country.
Whether this is the right time for a gender-neutral law rape law in India or not, depends on whom you ask. The National Alliance to End Sexual Violence (NASV), a Washington based association working to end sexual violence notes that about 14 per cent of reported rapes in the US involve men or boys, that one in six reported sexual assaults is against a boy and one in 25 reported sexual assaults is against a man .
In India, data from the National Crime Records Bureau reveals there has been an eight fold increase in the number of rapes committed on women in the last four decades. The rise in the number of rape cases is the most rapid as compared to other serious crimes such as murder, robbery and kidnapping. Contrast this with hardly any reported cases of sexual violence against men.
D. Geetha, a Chennai based lawyer who specializes in women’s issues, says Parliament is turning a blind to the more serious problem of violence against women and enacting a law that is out of sync with the country’s social realities.
“Where are the cases of sexual violence against men? Tackling sexual violence against women and the way they are treated in our society is the need of the hour. They are vulnerable at home, work and even in police stations. Rather than working for gender neutral law, we should work to strengthen the justice delivery mechanism for women,” she said.
“The law making machinery should respond to the need of the community and not the other way round,” Geetha said.
Mumbai-based women’s rights activist and lawyer Flavia Agnes believes that rather than helping any community, the law will leave the judiciary confused.
“I oppose the proposal to make rape laws gender neutral. There is physicality in the definition of rape, there is use of power and the victim has a stigma attached to her. If made gender-neutral, rape laws will not have the deterrence value and it will make it more complicated for judges in court,” Agnes told The Times of India.
However, for some like Anjali Gopalan of Naz foundation, a Delhi-based NGO working for the cause of the LGBT community and has been lobbying for a gender-neutral law for more than a decade, this is a success.
She has been arguing that anyone who can be raped, including men, should have recourse to justice.
Rapes on men are as real as rapes on women but the former are not reported because of which there is no authentic data on such cases, said Gopalan.
“People from the LGBT community are looked down in our society. In cases of sexual violence, men feel helpless. They can approach no one. If some of them gather the courage to go the police station, the case is not registered. They make fun of the victim,” she said.
One of the presumptions made in the Bill that has left the activists divided, is that sexual violence that women victims face is comparable to that faced by male victims. Effectively, it means that the trauma, agony and the stigma faced by men in such cases is comparable to what is experienced by women, as highlighted by NASV.
According to senior Supreme Court lawyer Vrinda Grover, who is a strong opponent of the Bill, the only situation justifying a gender neutral law, is a repeal of section 377 of the Indian Penal Code relating to homosexual sex.
“If consensual sexual behaviour among adult men is allowed by the law, then you would have the need to introduce a law which criminalizes non- consensual sex between two adult men,” said she.
In June 2009, Delhi High Court decriminalized consensual sex among same sex adults, ruling that it violated the fundamental right and liberty mandated in the constitution. However, the order was challenged in Supreme Court, which is yet to pronounce its judgment.
The Bill also promulgates the theory that women can be the perpetrators of sexual violence against other women, men and children. If the definition of rape is widened to to include acts other than forced sexual penetration, which the current IPC definition says, then women are as capable of sexual violence against children as men are.
“But it certainly not be called rape,” said Gopalan.
Strangely enough, marital rape, an aspect of sexual violence that many women in India face, is not addressed by the legislation. The Bill though does propose to amend section 375 of IPC to increase the age of consensual sex for a married woman from 15 to 16 years.
“There is a clear contradiction here. The Child Marriage Act says that marriageable age of a girl is 18 years. But here, the government says that if a girl below 16 is having consensual sex, it is legitimate,” said Hasina Kharbih from Impulse, a human rights group.
“It is strange that the government is amending the rape law and it has nothing to put an end to marital rapes which is an open secret in India.” she added.
Rape law: Are women activists barking up the wrong tree?
A bad workman invariably complains about his tools. Does the analogy hold good when a policeman cribs about the inadequacy of the law? Not really. He has no doubt many faults, including more than a streak of insensitivity and dishonesty while dealing with crime victims.
But you must remember that he is, at the same time, stuck with far too many archaic statutes which curb his professional response to crime. Both the Criminal Procedure Code (CrPC) and the Indian Evidence Act are so loaded against the crime investigator that it is a matter of wonder we can still get a few offenders convicted by the courts.
Take, for instance, the CrPC prohibition against keeping a suspect in police custody beyond 24 hours. The rationale: the police will otherwise resort to illegal custody of hapless suspects. Equally prejudiced is the Evidence Act’s stipulation that no confession made by an offender to a police officer will be admissible in evidence, unless it leads to the recovery of a material fact.
These and similar provisions of law are meant to quell dishonesty in the police. But they also have the unintended and undesirable effect of transforming a large number of honest policemen into being dishonest.
It is against this backdrop that we may have to examine the latest Cabinet clearance for changes in the law against rape. These have come about after more than a decade of debate over the Law Commission’s recommendations in their 172nd Report.
There has been a mixed response to these changes from women activists. Their objection to rechristening ‘rape’ as ‘sexual assault’ and making the crime gender neutral is perplexing. They feel that ‘sexual assault’ makes the crime of ‘rape’ less grave. My belief is that they should be more concerned with the definition rather than the name given to the offence. They are right to assert that assaults on men are few and far between, a fact that perhaps does not warrant specific recognition of the phenomenon.
However, I still fail to understand why this new feature in the criminal law should excite them. It is nothing more than a recognition of perceptible changes in human behaviour and the near legalisation of gay marriages in the West, something that we could witness in our own country not long from now.
Gay alliances in matrimony are bound to bring in the menace of man attacking man in pursuit of sex. We already know how young boys are preyed upon by elders in positions of authority or influence. The latest scandal at Penn State University, where a football coach indulged in systematic abuse of boys for more than a decade, may cease to be an aberration very soon, but become a frequent occurrence in the most unexpected places.
The enhancement of the age of consent for sex from 16 to 18 is another concession to societal change to which we can hardly take exception. Enhancement of penalties, especially in the case of custodial rape, is a move in the right direction.
Generally speaking, therefore, the government’s move to tweak the law on sex offences is to be endorsed rather than criticised. Let us wait to see how Parliament reacts to the bill when it is introduced. I hope both the Houses will deliberate rather than rush through the process.
What amuses me, however, is the superficiality of some of the women’s organisations in discussing the subject in public. They seem to believe that strong penalties will deter crime against women. This is hardly the experience the world over. It is the certainty of punishment rather than severity that can bring down crime in the future. A spinoff is also that courts will demand a higher degree of proof when imposing a sentence as harsh as seven years.
Given the peculiar circumstances — especially the secrecy that envelops the predator’s conduct — under which sexual attacks take place, proving criminal behaviour in rape is a complex task. We cannot also be blind to the fact that, in a large number of cases, the offender is very well known, as a friend or a relative, to the victim. As a result, evidence collection and credible testimony by a victim or her associates become problem-ridden.
This is why a majority of sexual offences fail in court. We can possibly improve the situation by enhancing the quality of police investigation, again an exercise that needs great skill and perseverance at the investigator’s level. An occasional case that invites huge media attention receives fair police attention. But what about cases reported from rural India which do not excite TV channels or newspapermen, only because of the lack of glamour and difficult access to victims who are invariably intimidated into silence?
There is a real sociological problem here which no law can tackle. If pessimists, therefore, assail the proposed changes to the rape law as being merely cosmetic, we cannot get worked up. This is the hard reality of an India which wants to be modern but remains steeped in a welter of ancient beliefs and customs. If the police force reflects this contradiction, it is but natural, however frustrating it might be to many of us who look for a sleek and efficient law enforcement agency.
The writer is a former Director, Central Bureau of Investigation, and New Delhi.
