Yes, I know the laws relating to rape in the country have undergone a big change thanks to the Criminal Law Amendment Act of 2013, which was a result of the deliberations of the Justice Verma Committee. Yes I know that rape has become an increasingly important site of debates of public policy, law and women’s rights subsequent to the incident of 16th December 2012.
Despite the changes in the law, however, there are a few significant lacunae in the law that I would like to address. Have tried to keep it simple so that non-lawyers can also understand the legal provisions I am talking about.
1) Remove RAPE from the protection enjoyed by Armed Forces under AFSPA.
What am I talking about? Well the Armed Forces Special Powers Act is a 1958 legislation, described as draconian by its detractors and necessary for the protection of the morale of the Armed Forces by its supporters. I do not wish to debate the Act here. However, this Act, under Section 6, gives protections to persons Acting under this Act from a prosecution, suit or any legal proceeding, without the previous sanction of the Government.
Interestingly no sanction for prosecution has been intimated by Ministry of Home Affairs and Ministry of Defence to the state government from 1990-2011 under the (Jammu and Kashmir) Armed Forces Special Powers Act, according to the response of the Department to an RTI Application. (Indian Express, Wed Feb 29 2012).
Now this means that in cases of rape, the Armed forces, in effect, enjoy immunity from legal proceedings. Though during hearings the Supreme Court has criticized this invocation of AFSPA in rape cases, the law of the land remains that immunity from any legal action is enjoyed by persons acting under AFSPA.
The position of law has not been changed, despite suggestions from the Justice Verma Committee that military men accused of sexual assault should be tried under normal law.
So the question that all reasonable people need to ask themselves is this:
Can rape be something necessary to commit in the line of duty? Does ‘protecting the nation’ require that dissenters be raped?
2) Make the victim gender neutral
It is time we recognized the principle that YES, men can be raped.
Someday, when power equations in society have changed, and when the socio-political dynamics of rape is different, perhaps we can hope for a completely gender neutral law on sexual assault.
Right now, we need to recognize that men can be, and sometimes are victims of violent sexual assault. Children are protected under the Protection of Children from Sexual Offences Act, 2012. But adult men who face penetrative sexual assault have no recourse but to go under S 377 of the Indian Penal Code. Incidentally this is the same section under which (in theory) consenting adult same sex partners can be booked.
I will leave it to the reader to decide whether this is repugnant to their ideas of justice and decency or not.
3) Recognize Marital Rape
This is for my friends from Mars.
Rapes happen within marriages.
They are violent, and as traumatic as rapes outside marriages.
They need to be recognized.
I remember a long time back when I articulated this idea at a National Level Competition, I really offended a very senior lawyer who started telling me about the obligation that marriage entails. I sincerely hope he was being the Devil’s Advocate, for he went on to say that marriage began as the idea that the man would give bread and protection to the woman in exchange for sex and this was an argument against recognizing marital rape.
So let me say two things:
1) A woman does not ‘give’ sex, she is an equal participant in the act. Just as a man is not always expected to be the sole breadwinner any more. At least in the kind of marriages a society aspires to now.
2) No expectation from a marriage (legitimate or not) justifies violence in a relationship.
I understand that marital rape might be difficult to prove, and I understand that a section of the society with its foot in the past feels incredibly paranoid at the prospect of recognizing it, but given the quality of legal minds in our nation, I don’t see why we can’t at least begin the ground work on bringing this into our statute-books.
4) No death for repeat offenders.
Given the abhorrent rape that took place in Delhi on 16th of December 2012, the ‘hang the rapist’ mentality got strength.
I understand the pain and the anguish people felt after that fateful night, particularly as horrific details of the incident came to light.
However, our law makers have to be dispassionate. And I do not think they were being dispassionate while drafting Section 376 E of the I.P.C which provides that repeat offenders may be punished with death.
Very practically speaking if the (repeat) rapist knows that the punishment of his crime will be death (ie the same as for murder), he will just murder the very often only witness to the crime, his victim.
Surely that is not the consequence we want?
But aside from the practical consequence, this is ideologically problematic too. So far the only crime punishable with death has been murder (and sedition perhaps). Somewhere this section echoes the idea that rape (or a certain amount of rapes) amount to murder.
Am sorry. They just don’t. A woman is very much alive and our laws should not try to impose on her the idea that the shame/agony of rape equals death. This is not fixing the problem, but amounts to reimposing partiarchy.
5) Include some age proximity clauses in cases of statutory rape.
As much as we would like to deny it, some teenagers have sex. Now since the age of consent is 18 in India (keeping up with Child Right’s Convention norms no doubt), there is a very real situation where consenting sexual activity between a 19 year old man(?) and a 17 year old girl is statutory rape.
Now one way to work around this would have been discretionary sentencing which has been taken away by the new amendment.
Cases of statutory rape with the participants being close to each other in age, and having consented can certainly not merit 7 years of imprisonment.
Hence, something has to be done to fix this anomaly.
6) Chuck the part of S 377 IPC pertaining to consenting adults.
Yes yes, you may ask me whether this falls squarely under changes needed in our rape laws, and I will tell you that yes it does.
We can not really see violent sexual activity in perspective if we penalize non-heteronormative sex between consenting adults with similarly harsh punishment.
Also, my blog my rules.
Well so here it is, my list of six problematic provisions in our rape laws that are problematic.
Some of you will think that I have not gone far enough, by not questioning ASFPA at all or demanding complete gender neutrality in the law. My answer is I have tried to keep things realistic.
Some of you will think that I have struck at the root of the family or that its terrible that I do not wish that all rapists are hanged. To you I say sentimentality can not be the basis for making laws.
At any rate I welcome your discussions and criticism.
Just don’t call me a feminazi. The death ray is not ready yet.