Tough law on gender crimes

The ghastliness of the assault on a young woman in the capital city on December 16 has unfolded the macabre reality of our society.

The ghastliness of the assault on a young woman in the capital city on December 16 has unfolded the macabre reality of our society. There is an urgent need for a national action plan on violence against women. This should contain a set of activities with benchmarks to ensure that a coordinated approach to the implementation of the legislation acknowledges that violence against women is a form of discrimination and a violation of women’s human rights. Any custom, tradition or religious contemplation should not be allowed to rescind the legislation by justifying violence against women. The proposed amendments in the criminal law adopt a gender neutral understanding, which potentially thwarts the gender-based assumption of sexuality. There exists compelling grounds for the inclusion of marital rape in Section 375 of the IPC.

If marital rape is included in the proposed Bill it should be reflected in Section 376A of the Bill that should not be restricted to the status of separation and the punishment. The age of consent is required to be reduced to 16 from 18 years under Section 375 of the Bill to protect minors from criminalisation of consensual sex. In this regard, the use of the term ‘consent’ in the Bill is critical and therefore, a statutory definition of this term for clarity and elucidation is necessary.

In order to maintain an implicit consistency in the punitive actions proposed in the Bill, the term of punishment for crime under Section 376B should be uniform with Section 376. The incorporation of gender neutrality in the aforementioned Sections could prove fatal in our culture conceptualised by a patriarchal order. Decriminalising adult consensual sex between same sex is ineluctable in the present day. Further, the passing of Protection of Children against Sexual Offences Act, 2012 by Parliament has made the existence of Section 377 redundant.

Effective use of provision in the Criminal Procedure Code (CrPC) to demand good conduct from anti-social elements and proceeding against persons indulging in eve-teasing, verbal lewd remarks or gestures to annoy or harass women could be of great significance.

There lies a strong case for death penalty as punishment in cases of grave injuries caused by sexual assaults rendering irreparable and permanent bodily damage on the victim. In respect of such offences like rape, attempt to rape causing grievous hurt or throwing acid on a woman, an accused being juvenile aged between 1 and 18 years should be tried and punished as an adult and not as a juvenile. The Juvenile Justice (Care and Protection of Children) Act and the subjective knowledge of reformation understood in the Act should be in congruity with the grievousness of the crime committed by the juvenile.

Indian law should be in sync with the thoughts of the UN handbook that states the definition of violence against women in legislation should encompass all forms of violence — domestic violence, sexual violence including sexual assaults and sexual harassment; harmful practices like early marriage, forced marriage, honour crimes, acid attacks, dowry crimes, forced pregnancy and trying women for sorcery; femicide; sexual slavery and trafficking; violence against women in community and conflict zones; violence against women condoned by the state including violence in police custody and those committed by security forces, and the like.

The legislation should provide for an overarching effect of the proposed Bill on provisions contained in other areas of law, such as family and divorce law, property law, housing rules and regulations, social security law, employment law and juvenile law. Thus, not contradicting the legislation adopted, so as to ensure a consistent legal framework that promotes women’s human rights and gender equality and the elimination of violence against women.

It should define sexual assault as a violation of bodily integrity and sexual autonomy replacing existing offences of rape with a broad offence of sexual assault graded based on harm. The legislation should specifically criminalise sexual assault in a relationship by providing that sexual assault provisions apply ‘irrespective of the nature of the relationship’ between the perpetrator and the complainant or stating that ‘no marriage or other relationship shall constitute a defence to a charge of sexual assault under the legislation’.

Legislation should provide that police officers should respond promptly to every request for assistance and protection in cases of violence against women including domestic violence, even when the person who reports such violence is not the complainant/survivor; and upon receiving a complaint, conduct a coordinated risk assessment of the crime scene and respond accordingly in a language understood by the complainant/survivor, including by interviewing the parties and witnesses, including children, in separate rooms to ensure there is an opportunity to speak freely; recording the complaint in detail; advising the complainant/survivor of her rights; filling out and filing an official report on the complaint; and provide protection to the reporter of violence.

Legislation should establish that responsibility for prosecuting violence against women lies with prosecution authorities and not with complainants/survivors of violence, regardless of the level or type of injury; require that complainants/survivors, at all relevant stages of the legal process, be promptly and adequately informed the details of relevant legal proceedings, available services, support mechanisms and protective measures, opportunities for obtaining restitution and compensation through the legal system; require that cases of sexual assault ought to continue in the event of demise of the victim; and require that a complaint with respect to violence against women cannot be withdrawn by the survivor or the reporter of the crime at any stage of legal proceeding. The Armed Forces (Special Powers) Act (AFSPA) should not be a shield to protect military personnel who are accused of crimes including murders and crimes against women and children.

The legislation should mandate the allocation of budget for creating specialised courts guaranteeing timely and efficient handling of cases of violence against women; strengthening of specialised police units and specialised prosecutor units on violence against women; creating a general obligation of the state to provide funding for integrated support services to assist survivors of violence including financial assistance to survivors, one national women’s phone hotline for urgent assistance, access to healthcare, crisis and trauma centre; and allocating a specific budget for survivor-centred programmes and capacity-building training programmes.

Nripendra Misra is ex-chairman, TRAI and director,

Public Interest Foundation.

E-mail: director@publicinterestfoundation.com

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