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WOMEN AND THE LAW -- CHITRA NARAYAN

Set right the anomalies

The draft law on sexual offences recommended by AIDWA proposes several important changes in the context of custodial sexual assault

In the last column, we had looked at the law relating to sexual assault, its shortcomings and the amendments proposed by the All India Democratic Women's Association (AIDWA) to make the law more effective for women subjected to abuse. In this column, we look at a related aspect of sexual assault, viz., custodial sexual assault.

But first, I must apologise for a mistake in the last column. The provision in the Indian Evidence Act, permitting information of the sexual history of the victim-woman in a trial for rape, has been deleted from the law.

The Indian Penal Code (IPC) recognises custodial rape, by identifying certain contexts in which rape occurs by a person in authority, such as by a policeman on a woman in police custody or in a police station, by a public servant, or by a person in management of an institution or remand home or hospital. These provisions recognise that rape is committed by such persons in authority by taking advantage of their dominance and power. Significantly, the Evidence Act states that where sexual intercourse is proved in such cases of custodial rape, and the woman states that she did not consent to it, the Court will presume that she did not consent.

Strangely, there is another category of sexual abuse under the IPC that makes sexual intercourse by public servants, superintendents of a jail or remand home or the staff or management of the hospital with a woman in their custody or charge or care, an offence, but does not classify it as custodial rape. There is an anomaly in this set of provisions, which recognises that the sexual intercourse is non-consensual, given her subordination to the authority, but does not classify it as rape.

Despite these provisions, there has not been much impact either in the convictions in cases of such custodial rape or in the incidence of such crimes. This is on account of the fact that apart from making the punishments more severe, the law does not take into account the context of intimidation and power such persons in authority wield, not only over the woman abused, but importantly, over the subsequent processes.

Abuse of power

Despite repeated reports of the abuse of this very power by policemen and army personnel against women, to molest, strip, and sexually abuse women to intimidate them or their family, the provisions restrict the context of custodial violence to situations of actual custody. These provisions do not take into account sexual assault by policemen outside the police station precincts, or by persons in charge of remand homes or homes for destitute women, outside such institutions. Again, the law only recognises penile-vaginal penetration as rape, and sexual assaults, however grievous or agonising to the person concerned, are excluded from consideration.

So what needs to be done? In cases of custodial sexual assault, it is imperative to introduce additional provisions, which account for these imbalances when the crime occurs. This could include recognising delays in reporting the crime, delays in the medical examination of the woman abused, restraint orders on the person accused, alternative institutions for investigation, and involvement of women's organisations in the process, etc.

The draft law on sexual offences recommended by AIDWA proposes several such important changes in the context of custodial sexual assault. The recommendation extends the imposition of enhanced punishment to all sexual assault committed while being in a position of economic, social or political dominance on a woman under such dominance. The definition of custodial sexual assault is extended to cover sexual assault by a police officer in uniform even when outside the police station.

And there is one final point. Custodial sexual assault often occurs when women are taken to the police station for investigation (or on the pretext of investigation) into an offence.

The Criminal Procedure Code prescribes that a woman must be questioned at her residence if she is a witness or has knowledge about a crime and not at the police station. Since we know this is not necessarily practised, the AIDWA recommendations suggest that a breach of this requirement by any public servant will be a punishable offence. It is also suggested that while recording the statement, a relative or a friend or a social worker of the choice of the person should be allowed to remain present.

It is important to recognise that the law has a limited role in addressing the incidence of custodial sexual assault, as these are offences enabled by deep-seated domination. However, the amendments suggested provide minimum safeguards, which ought to be introduced in the law.

(chitra.narayan@gmail.com)

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