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WOMEN AND THE LAW

Make them more effective

CHITRA NARAYAN

It's time criminal laws relating to sexual offences against women are reviewed

The All India Democratic Women's Association (AIDWA) has recently submitted a draft law for amendment of criminal laws relating to sexual offences against women. This comes in a context of low rates of conviction for sexual offences, very low reporting of such offences, delayed trials, and most important, antiquated laws and perceptions of such offences.

The Indian Penal Code (IPC) is the law, which makes sexual assault against women an offence. This 1860 law, which has seen very few changes in its approach to sexual offences against women, perceives only three forms of such offences. These are (i) rape, (ii) outraging the modesty of women and (iii) insulting the modesty of women.

Vague provisions

Rape is restricted in the Code to penile-vaginal penetration, which is without the consent of or against the will of the woman. The latter two offences deal with assault or use of criminal force against women and behaviour; both of which are offensive to a woman's modesty. These are the only provisions available in cases of molestation, which is not `rape' as defined above, or for public sexual harassment. These provisions are vague, and rest upon the presumption of the modesty of the woman victimised.

These provisions do not adequately address the serious and harmful range of sexual assaults that do occur against women. While women face myriad forms of sexual assault and force, these assaults have to be pigeonholed in the three forms of conduct mentioned above.

Sexual assault such as forced vaginal penetration through objects, forced oral and anal penetration, burning of various parts of the woman's body and repeated rape are horrendous instances of abuse, all of which are not even dealt with by these laws. Rape is separately identified as a form of sexual assault and restrictively defined under the Code only on account of the concern with the perceived effect on the chastity of the woman assaulted.

The IPC was amended in 1983 to introduce higher degrees of punishment in cases where public authorities (police officer, public servant, personnel in a hospital, etc.) took advantage of their positions to rape women. This amendment came years after the "Mathura case", where a tribal woman was raped by policemen in a police station. Gang rapes, rape of a pregnant woman and of girls below twelve years of age are also covered by the aggravated punishment.

The suggested changes to the law of sexual assault by AIDWA are therefore critical. The suggested law replaces the word rape with the more compendious "sexual assault". The definition of sexual assault encompasses a range of instances of penetration of parts of a woman or child's body, including those by a woman on a child. The law also redefines consent to a sexual activity as being unequivocal voluntary agreement, requiring evidence of a positive consent to the sexual activity to be shown, if the offence is denied.

The AIDWA proposal further deletes the provision on assault outraging the woman's modesty and replaces it with unlawful sexual contact, so that the focus of the law is on the violation concerned and not on the conduct or expectation of conduct from the woman abused.

The law also significantly suggests amendments to the Indian Evidence Act in the context of sexual assault. There is at present section 155(4) of the Evidence Act, 1872, which permits the accused to bring in information of the past sexual conduct and "general immoral character" of the woman, as evidence to support her consent to the sexual assault. The proposals rightly provide for the deletion of this provision, since the fact of sexual assault is to be determined only by the events surrounding this particular incident.

Where the proposals fall short are in their definition of sexual assault as that involving penetration, and in excluding non-penetrative sexual assault. It is important to have an inclusive definition of sexual assault, which details different forms of sexual assault, so that women do not have to fit their experiences in restricted prescriptions of conduct.

The range of sexual assaults women face must be made more explicit, rather than being shrouded in vague and uneasy references to the offence which will also ease the woman's relation of her experience in investigation and in trial.

Many of these proposals were also made in the 172nd Report of the Law Commission of India in 2000. However, no response was forthcoming from the Government except to proclaim greater severity in punishment, in the face of growing reports of the crime. Increased punishment in the past for rape has shown a tendency towards acquittal. The focus should instead be on more effective laws for sexual assault as proposed. The review of the laws relating to sexual assault cannot be delayed further.

(chitra.narayan@gmail.com)

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