REDEFINE   SEXUAL   ASSAULTS

 

Need to define whole range of sexual assaults.

 

            Lot has been said about this inadequacies of our three main Criminal Laws, namely IPC, Cr.PC and IEA to deal with increasing cases of sexual assaults and harassment of women - Yet, not much progress seems to have been made towards amending these Acts.

 

            In the whole of IPC, containing more than 500 sections, only two sections deal with rape of a women and one section deals with perfunctory or minor sexual crimes like trivial instances of eve teasing for which simple and small term punishments are prescribed.   Thus you have either rigorous punishment of 7 years for rape or two years simple imprisonment for other non rape crimes and nothing in between.

 

            Similarly, crimes relating to kidnapping, abduction, seduction or luring of women (including girl child) and their subsequent use in brothels is also dealt with without very deterrent punishment.

 

            Similarly there is nothing much to say about crimes against children.

 

            The inherrent lacunae in the provisions of laws is, however, not the only malady in our justice-delivery system.  Lacunae, insensitivity and inefficiency of the investigating agencies, medical profession, prosecuting and defence councels, judicial delays and inadequacies or leniency in punishment  are other lacunae which require a different way of handling and systemic improvements.  This article will be confined only to the simpler task of pointing out the need of amending and adding some sections to our criman law trio.

 

            Simpler?  That is perhaps only my perception of things, because the country has already taken fifty years after independence and not yet suitably amended them.  Even when amendments are suggested by bodies like Law Commission, it can actually tak as much as ten years to pass the same in the Parliament and make it into a Law.  And yet, it is simpler because it is only a question of conceptualising and then making a theoretical (and perhaps ivory tower) expercise.  The other problem is of tackling inefficiency and attitudinal change for a vast number of government servants”.

 

            Let us first see the provisions for sexual assault against women.  IPC deals with one such assault namely rape in some details under Section 375 and prescribe the punishment for the same under Section 376.

 

            Rape is defined as sexual intercourse with a women committed under following circumstances:-

 

            1)         Without her consent

 

            2)         With her consent, but the consent is obtained because either as the Women is below 15 years of age

                       

                        a)         the said lady believes or made to believe that the person having sex with her is her husband, or,

 

                        b)         She is mentally disabled and does not understand the meaning or concept of sexual intercourse or consent for it, or.

 

                        c)         She has been put under the influence of drugs/intodication so that she gives consent under that influence, or;

 

                        d)         She has been threatened of harm either to herself or to someone else, or;

 

            Under these provisions, the sexual intercourse by a men with his wife even without her consent is not a rape unless the wife is below the age of 16 years.

 

            In some judgements of the recent past, the right of a women to freedom and a life with dignity, as guaranteed to her under Article 15 of the Constitution of India, have been interpreted to hotel that a man’s right of sex with his wife without her consent interferes with her Right to life of dignity and freedom and hence the Constitution must override the provisions of IPC and hence, sexual intercourse by a man with his wife without consent must be tracted as a crime and be punished.  However, despite the invocation of none less than the Constitution of India itself and  by name less than the Supreme Court of India itself, the IPC has not yet been amended to include marital rape as rape.

 

            Section 376 deals with punishment for rape, and prescribes a punishment of -

 

____________________________________

 

 

 

            In 19     an  amendment of very important consequence was made to this Section.  In earlier Act, like in any other Acts, there was an inherrent presumption that the law keepers will not break the law.  However, by early eighties, cases kept growing in number where it was alleged that women were raped while in custody.  The case of                   vs. Union of India, also otherwise known as Mathura rape case was the one to receive adequate attention of social activists, government and judiciary.  This was the case of a woman Mathura having been raped by two constables when she was in their custody enquiry into a matter of alleged theft by her brother.  This and some more cases of similar situation, finally led the government to pass an amendment under which the punishment for rape by a person who is keeping the women under custody has been increased from a normal of _______   to

years.  In addition, the burden of proof that sexual intercourse was with consent is put on the accused.  If the victim women in question says that she had not given consent, then her non consent is to be presumed and accepted unless proved otherwise by the accused.  The concept of custody, as applicable to this section is wider than the usual dictionary meaning of the word.  It includes

 

 

            In addition, section 377 of IPC deals with cases unnatural sex i.e.

 

            a)         the sex between a man and a man or

 

            b)         between women and a woman

 

            or (c) by a person with the some animal. 

 

            Thus it can be seen that the present legal provisions do not adequately deal with a large variety of cases of serious sexual crimes against women, especially when their instances have increased over past 10 to 15 years.  Following type of cases are not adequately handled  --

 

I.          (A)       Rape against small girls

 

            (B)       Gang rape where the women is totally helpless against the brute force

of many more people against her.

 

            (C)       Rape inflicted as a punishment with a view to kill the fighting spirit of any women.

 

            (D)       Rape committed on women in order to kill the fighting spirit of the whole tribe in question - or to take revenge against the whole tribe.

 

            (E)       Rape against old women.

 

            The above five types of rape are definitely much more henious and have a much more devastating effect on the victim - both physically and mentally.  And yet present Law is inadequate to punish these types of cases.  In the whole of judicial history of the country there are not many cases of rape where the accused was punished with more than 7 years of imprisonment.

 

            This inadequacy of judicial system becomes even more glaring when we come across a data stating that at the end of 1996, more than 40000 rape cases were still pending in the courts and the conviction rate in rape cases so far decided was only six per cent.

 

            Recently, a country wide controversy arose when Home Minister declared the intention of the government to prescribe death sentence for rapists.  Whatever be the outcome of that controversy, it remains a necessity that the five types of cases described aboe be given higher punishment.

 

 

II]        Cases of non rape but causing equivalent trauma

 

            Under present law, a crime of rape is committed only if there is actual penetration of vagine of the victim.  Therefore it fails to tackle cases where there may not be actual penetration of vagina but the trauma and mental shock undergone by the victim is not less in any way.  This includes following cases:-

 

            A)        Penetration or attempt to penetrate the anus or mouth by the rapist.

 

            B)        Pentration of the vagine/anus of the victim by any other instrument or object.

 

III]       Cases of child sexual abuse:  Child sexual abuse has acquired alarming populations of late.  These include cases of incest i.e. sex by father with the daughter and also cases of near relatives including in child sexual abuse.

 

            Sexual abuse of the child and