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#India- Not a 'safe' issue: Disabled women and sexual violence #Vaw #disability
by kracktivist in Advocacy, Announcements, Disability, Human Rights, Justice, Law, Women Rights Tags: Committee, Criminal law, Delhi, Delhi High Court, Indian Penal Code, law, Law Commission, Ordinance, Sexual Assault, Verma Committee
By Shampa Sengupta & Saptarshi Mandal
For the first time in the history of sexual violence law reform in India, issues pertaining to disabled women are being flagged as important items on the reform agenda. Sexual violence against disabled women is rampant, both within the supposedly safe zone of the 'home' – be it familial or custodial – and without. A small number of cases manage to get reported and legal actions are initiated in these. But most of these cases that reach the courts end in acquittal. Some of the reasons behind the low rate of conviction are common to all rape cases: faulty investigation by the police, biased conclusions reached based on medical examination of the victim and the accused, general attitude of distrust towards the victim and so on. But there are also factors that are specific to the cases of disabled women, such as not recording the testimony of the victim during the trial or recording the testimony without following the procedure laid down in law, which weaken the prosecution case at the appellate stage and result in acquittal.
The Justice Verma Committee, constituted by the central government to look into sexual assault law reform after the Delhi gang rape and murder last December, gave many of us working on these issues an opportunity to place some of these concerns before the government. The Committee responded positively and a large number of its recommendations addressed difficulties faced by disabled women in accessing the legal system and navigating through the trial process. Among other things, the Committee recommended that the assistance of interpreters or special educators be taken at the time of recording of the complaint by the police and also during the trial, that the process of identification of the accused be videographed and that disabled women be exempted from recounting their testimony once again at the time of cross-examination in cases of sexual assault. The recommendations also addressed issues of sexual abuse within institutions for the disabled and suggested oversight mechanisms for both state and privately run institutions. The recommendations of the Committee were welcomed by women's groups and disability groups, including the ones that we are associated with.
However, when the government hurriedly introduced the Criminal Law Amendment Ordinance just three weeks before the upcoming session of parliament, we were faced with a dilemma. The Ordinance, which was promulgated purportedly to give effect to the recommendations of the Verma Committee, incorporated a majority of the disability-specific ones. But longstanding demands made by the women's movements such as recognising marital rape, rape by security forces, compensation for rape victims, rejection of death penalty as a punishment and such others, which were recommended this time around as well, were left out of the Ordinance. As activist and researcher respectively, we were familiar with the travails of disabled women within the legal system in rape cases. Hence we were acutely aware of the relevance of the disability-specific clauses in the Ordinance and were happy to have been part of the process which had led to those changes. But we were also politically aligned with the women's movement and thus found it difficult to endorse the Ordinance, which had left out issues which were fundamental to reconceptualising sexual offences in a manner that protected the rights of victims of sexual violence.
Leading from the personal/ political dilemmas regarding our position on the Ordinance, we wondered if the disability-specific recommendations were so readily accepted by the state because disability was seen as a safe, sympathy-inducing issue that posed no threat to the established orders. Demanding that marital rape be recognised as an offence on the other hand, definitely threatened the gendered/ sexualised ordering of heterosexual marriage and family. Was this the reason, we wondered, why the two movements rarely spoke to each other in course of the sexual assault debates, although they raised similar questions pertaining to the body and violence, power and vulnerability? We also wondered if the predominantly service-providing nature of the disability sector was in any way responsible for it being viewed as a 'safe' issue? If for the state, disability was a 'safe' issue and gender a 'disruptive' one, then what did it mean for movement politics – the business of building alliances and solidarities across sectors while engaging with the state? And at a much smaller level, what did it mean for our own work where we try to think through both these axes of power and vulnerability?
While we still do not have clear answers to any of these questions, we want to flag some cautionary notes on sexual violence against disabled women and the legal response to the same. Protecting the rights of the disabled against sexual assault would require us to think beyond provisions for interpreters and special educators, and engage with the domain of power and sexuality as well. In the context of sexual assault law reform, one issue that has created sharp divides between the state and the women's rights groups, women's rights groups and the queer and child rights groups, and among the women's rights groups as well, is the proposition of making sexual offences gender-neutral. In the year 2000, the 172nd Report of the Law Commission mooted the idea of substituting the words 'man' and 'woman' in Sections 375 and 376 of the Indian Penal Code with the word 'person' so as to bring instances of same-sex sexual assault and sexual assault on male children by adults within the scope of the law. The idea was rejected by a wide section of the women's movement which argued that sexual offences took place within a framework of gendered power relations and the legal system which tried these offences was heavily biased against women. These realities, it was argued, cannot be wished away just by changing words in the law. Similarly, a number of lesbian women's groups expressed concerns that in the absence of any affirmative legal recognition for same-sex relationships, a gender-neutral rape provision could be used by disapproving families to lodge false complaints against same-sex lovers.
In the last 12 years, several developments have taken place: decriminalisation of adult same-sex sexual acts by the Delhi High Court in 2009, greater public awareness and discussion about child sexual abuse, and much more documented evidence of sexual violence against gay, transgender and transsexual persons. With the result that by the time the government introduced the Criminal Law Amendment Bill in June 2012, there was agreement on certain things among the groups involved in these debates. Thus most groups agreed that victims of sexual assault must be defined in a gender-neutral manner so as to provide protection to men and transgendered persons, in addition to women. But the perpetrator should be kept as male alone, as making the perpetrator gender-neutral would weigh heavily against women. Thus the 2012 Bill, which proposed gender-neutrality with respect to both the victim and the perpetrator, was opposed by women's groups as well as some queer groups.
Cut to 2013, and the Verma Committee recommended that rape be retained as a gender-specific offence and provided separately for same-sex sexual assault. However, despite strong opposition, the Ordinance stuck to gender-neutrality with respect to both the victim and the perpetrator, and till the time a new Criminal Law Amendment Bill is introduced and passed to replace the Ordinance, it remains the operative law.
Surprisingly, disability groups have not been part of these debates, though making sexual offences gender-neutral clearly has consequences for disabled women. A stereotypical view of disabled women, particularly those with intellectual or psycho-social disability, is that they are unable to control their sexual urges. (1) Such a view, historically propagated by the medical establishment, is prevalent among the police, doctors and judges. In the course of handling cases of sexual assault on disabled women, we have often heard the authorities sympathising with the accused based on the belief that 'such women' are prone to making sexual advances on men, and later charge them with sexual assault. In 2001, in a case where a speech- and hearing-impaired girl was raped by two policemen inside a prison van in Kolkata, the officer-in-charge had said to one of us that activists should not follow up in such cases. When asked why, he said it was common knowledge that disabled girls were 'sex starved' and it was the girl who had in fact attacked the policemen. More recently, in the course of inquiring about a case of sexual assault on a female inmate by a male staffer at a Kolkata mental health institution in April 2012, the superintendent of the institution told one of us that he himself was scared of going inside the female ward for fear of being 'molested'. He even asked us if there was any law to punish such women who first molest/tempt and then complain against hapless men.
In such a scenario where such attitudes are presented as medical 'truths' and where authorities put the blame on the victims and their lack of sexual discipline, what might be the implications of a gender-neutral rape law, where even women can be made assaulters and men their targets? Court judgments reveal how disabled women's accounts of sexual assault are treated with suspicion by judges. For instance, in an Orissa High Court case the prosecutrix was deaf and mute and had not revealed to anyone that she had been raped; it was discovered only when she became pregnant. The court, while granting bail to the accused observed that a case of consent on the part of the woman could not be ruled out since (a) the woman was about 30 years old and still unmarried and (b) she could have at least communicated it to her mother knowing that her mother would naturally be anxious about her marriage. (2) Again in Meeraj Alam vs State of Bihar, the Patna High Court kept on repeating throughout the judgment that "the victim girl was a grown-up lady who was unmarried because of such infirmity and that her younger sister was already married, having children from before". (3) How were the marital statuses of the victims of any relevance here, unless the judges were trying to implicitly suggest that the women in these cases were sexually mature and yet were not 'getting any' because they were disabled and hence one should be suspicious about their motive? Earlier a standard defence by an accused in a rape case used to be that the woman (disabled or not) had consented to the sexual intercourse, which then would be proved with reference to her dress, conduct, sexual history etc. Now, if the perpetrator is made gender-neutral, whenever a disabled woman complains of sexual assault, the alleged assaulter might file a counter-complaint that it was he who was raped by the woman. And we have good reasons to believe that given the widely held view regarding disabled women's hypersexuality, such counter-allegations by men would be believed and sympathised with, by investigators and adjudicators.
Thus gender neutral definition of the perpetrator in sexual offences, as is currently the case, is not in the interest of disabled women. The government is preparing to introduce a Criminal Law Amendment Bill 2013 soon to replace the Ordinance. From media accounts, it seems the government is undecided about the formulation of the offence in the final Bill. But whatever it is, it is about time that disability groups appreciated the implications of it, took a stand on this issue and made it known to the State.
1) An equally prevalent stereotypical view is that disabled women are asexual.
2) Deepak Mahapatra vs State of Orissa, 107(2009)CLT93
3) 2008 CriLJ 4384
(Shampa Sengupta is an activist working on disability and gender issues, based in Kolkata. Saptarshi Mandal is a legal researcher based in New Delhi.)
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Our bodies, our selves #womenrights #gender #Vaw
by kracktivist in Advocacy, Health Care, Human Rights, Justice, Kractivism, Law, Violence against Women, Women Rights Tags: Child sexual abuse, Committee, Delhi, Gender equality, India, Principle of consent, Sexual abuse, Verma Committee
NILANJANA S. ROY, The Hindu
Until we embrace the idea of consent in all relationships, including marriage, there can be no gender equality. Its absence makes discussions on sexual abuse meaningless
The man who was my abuser was a fine host, a good husband, a caring father, a respected elder whose generosity and kindness were as genuine as the fact of the abuse. These qualities were important, because they helped him conceal the abuse he carried out over a period of four years.
As a much-loved older relative, a close friend of my parents, he had unrestricted access to our house, and we visited him often. It was only at 12 that I began to feel uncomfortable. I didn't know the term "child sexual abuse," and had no words with which to describe my discomfort with the "games" he played — but I sensed there was something wrong about the silence that he demanded. When I was 13, I left Delhi for Calcutta, to study in that city, and left my abuser behind. But he didn't forget, and when I came back to Delhi as a 17-year-old, he was there.
FIERCE, PROTECTIVE BARRIER
At 17, I knew now that he had no right to do this to me. When he sent poems, said that despite the four decades that separated us, we were supposed to "be together," I broke my own silence — but only partly. I told my mother and my sister, and they formed a fierce, protective barrier between me and my abuser.
But the man who had started his abuse when I was nine was still invited to my wedding, because we were all keeping secrets, trying to protect one family member or another. (He was married, with grown children of his own.)
Years later, when my abuser was dying of old age and diabetes, I visited him. There was no space for a long conversation, but I did tell him that I would not forget, even if forgiveness was possible. The silence around the abuse festered and caused damage for years, until finally, in my thirties, the difficult, liberating process of healing began.
If this story saddens you, please think about this: my story is neither new nor rare, nor was the man who abused me a monster, or in any way out of the ordinary. According to a 2007 survey (the largest of its kind in India) conducted by the Ministry of Women and Child Welfare, over 53 per cent of Indian children have experienced some form of sexual abuse — a slightly higher percentage of boys than girls. I am only one of many.
As I learned to cope with the fallout from the childhood abuse, I made unexpected connections, found good friends, found strong mentors, found help, found my voice again and built a happier, more free life. If I bring up the abuse today, it's to make a point about the importance of consent in the debate over gender equality in India.
Child abuse survivors are experts in two areas: we've taken a masterclass in the toxicity of silence and secret-keeping, and we have doctorates in our understanding of the importance of consent. It can take survivors, like rape survivors of either gender, years to reclaim a sense of ownership over their own bodies. The body is the site of so many violations, starting with the chief one: our abusers did not ask us for permission to use our bodies as they pleased. Children subjected to abuse learn one harsh lesson — their bodies are not their own.
RIGHT TO OFFER OR WITHHOLD
Over years, those of us who are fortunate enough to find counsellors and healers learn to reclaim our bodies. We learn as adults what children are supposed to know by instinct: we learn that we can be safe in our bodies, we learn to allow ourselves pleasure, to take care of ourselves, and most of all, we learn that we have the right to offer or withhold permission to other people, when they want access to our bodies, our selves.
In December 2012, a violent gang rape in Delhi took the life of a young woman and set off a raging debate over women's freedoms and rape laws. In all the complex arguments we've heard in the last few months in India on rape, violence against women, we have not discussed consent as much as we need to. When we talk about rape, women's bodies are often discussed as though they were property: how much freedom should the Indian family allow its daughters, wives, sisters, mothers?
Recently, rejecting the Verma Committee's strong appeal that marital rape be made an offence under the law, the Standing Committee on Home said that (a) the Indian family system would be disturbed (b) there were practical difficulties and (c) marriage presumes consent.
These assumptions expose the toxicity at the heart of a certain view of the Indian family. For marriage to "presume consent," you must assume that a woman gives up all rights to her body, to her very self, once she goes through the ceremony of marriage. You must also presume that a man is granted the legally sanctified right to access over his wife's body, regardless of whether she finds sex unwelcome, frightening, painful, violent or simply doesn't feel like it that day.
MEDIEVAL VIEW
This diminishes both genders, in its assumption that men are little more than lustful beasts, unable to restrain their libidos, that women are passive receptacles without desires of their own, forced to submit to demands for sex regardless of what they want. This is a medieval view of marriage and sex, and it is dismaying that Parliament appears to subscribe to it.
What is missing is the key question of consent — the consent of the woman, of any person in a sexual contract. All people — children, women, men — have a right to their own bodies.
In any equal partnership, the only possible basis for sex is on the mutual understanding that consent is an active process — to be offered freely and gladly, to be withdrawn just as freely. Underlying the principle of consent is the equally strong principle of respect; respect for one's self, as much as for one's partner. No one should be forced to share their bodies against their will.
On an active, day-to-day basis, consent embraces the idea that any woman or man is free to say 'yes' or 'no' to a sexual encounter, inside or outside marriage, regardless of whether they are, in the ugly phrase of the courts and police stations, "habituated to sex."
Child abuse survivors and sexual violence survivors understand instinctively that true respect includes giving all people the right to say 'no,' the right to choose when they will be touched, and by whom.
If it is hard for Indian society to understand why everyone should have this right, then perhaps we should start with the basics.
You own your own body. Everyone has the right to live without their bodies being violated. Everyone has the right to demand that you ask for permission before you touch their bodies.
Perhaps in time, Parliament and the government might understand this. Justice Verma Committee and thousands of women trapped in marriages where they do not have the right to refuse sex certainly do understand. (For those who believe that marriage in India is a perfect, unsullied institution, read the statistics: over 40 per cent of women in marriages have reported domestic violence. That's reported, not experienced. In addition, we rarely discuss the experiences of men who have gone through childhood sexual abuse — currently, the percentage is slightly higher for boys than girls, but men are doubly silenced, by shame and the demands of masculinity.)
FROM VICTIM TO SURVIVOR
My own journey from victim to survivor and then to a kind of freedom, took years. Even so, I had less to deal with than many whose stories are reported in Human Rights Watch's recent study of child sexual abuse in India — no institutionalised abuse, no caste abuse, no extreme violence. In time, I became a writer, a listener, and a collector of stories. The shared stories of survivors allowed me to let go of shame — child abuse was too common and too widespread for that. I also learned that your memories, however dark, will not kill you, or prevent you from creating a better life.
Reclamation happened slowly, sometimes painfully. I was lucky to have the support of my partner, friends and great counsellors. But that journey started with believing that I did have the right to say 'no,' that my body did belong to me.
The debate in India over rape laws, particularly marital rape, is about such a simple thing: acknowledging that women (and men, and children) have a right over their own bodies. Why is this being treated as though it were a dangerous or radical idea? In a country that calls itself modern, as India does, it's time we embraced the idea of consent, in all relationships.
Even though it's so common — more than half of all adults in my generation of Indians have experienced some form of childhood sexual abuse — few survivors speak about their experiences because of the Indian family's insistence on silence. That silence transferred the shame of the abuser's act on to the child, and on to the family; it is powerful and crippling, and it actively enables abuse.
The silence around marital rape is strengthened when the Indian social and legal system refuses even to acknowledge that it exists; for an abuser, and for a rapist, these silences are frighteningly empowering.
Just as children have the right to ask that their bodies remain unviolated by the people they should be able to trust, a woman has the right to say, no, she does not give her consent. Even, and perhaps especially in, a relationship as intimate as marriage.
(Nilanjana S. Roy is a New Delhi-based writer)
#India Fix the Rape Problem #Vaw #Justice #womenrights (kractivist.wordpress.com)
Harvard to the rescue of Indian Feminists ! # womenrights #Vaw #mustshare
by kracktivist in Advocacy, Announcements, Human Rights, Justice, Kractivism, Law, Minority Rights, Violence against Women, Women Rights Tags: Delhi, Harvard Law School, Harvard University, India, Jacqueline Bhabha, New Delhi, Sexual Assault, Verma Committee
by Nivedita Menon
Some good news for embattled and weary Indian feminists. All those endless submissions to the Verma Committee prepared and submitted, all those critiques of the Ordinance written and disseminated, all those street protests, all those meetings with students and the public, all those delegations to government officials, ministers…not to mention decades of efforts to amend the rape laws.
It's been a long hard haul, so it's a great relief that the Harvard Law School has stepped in to take this burden off our shoulders.
A post on the Delhi gang rape on the Harvard College Women's Centre website has announced that a Policy Task Force titled "Beyond Gender Equality" has been convened to offer recommendations to India and other South Asian countries in the wake of the New Delhi gang rape and murder. Diane Rosenfeld, Director of the Gender Violence Clinic at Harvard Law School and Professor Jacqueline Bhabha, will head this group.
Their principal task this semester is to produce a working paper that advises on the implementation of the recommendations from the Verma Committee. The committee in a bold move, points out the need to reassess the military powers that are allowed to operate with impunity in conflict zones. Part of our discussion will focus on real reparations and support for survivors of sexual violence, in a manner that allows them to function as integrated members of their communities.
It's so good to know that there are Harvard Professors to make all the "bold moves" that Indian feminists have never made.
Attack the impunity of security forces? Now that's a bold move indeed – would any of us shy Indian women be so bold as all that? I wonder where the Verma Committee got that crazy idea from?
Posts on Kafila on the Justice Verma Committee and the Ordinance
The Verma Committee: Alchemizing anger to hope
Water Cannons, Tear Gas, Ordinance – How the State Responds to Protests Against Rape and the Justice Verma Committee
Why the Govt's Ordnance is Fraud & Mockery of the Justice Verma Committe Recommendations
The Official Emergency Continues – The Ordinance on Sexual Assault
"The impunity of every citadel is intact" – the taming of the Verma Committee Report, and some troubling doubts
Why the law on sexual offences must be changed
The Criminal Law Ordinance 2013 on Sexual Assault – Cut, Paste and Shock!
Also check out the reports on Feminists India
#India- Rape Debate Widens in India #Vaw (kractivist.wordpress.com)
#India- Failure of governance root cause of crimes against women: #Vermacommittee #Vaw (kractivist.wordpress.com)
#India-The Official Emergency Continues – The Ordinance on Sexual Assault #Vaw (kractivist.wordpress.com)
Why the Govt's Ordinance is an Eyewash and a Mockery of the Justice Verma Recommendations (kractivist.wordpress.com)
India Rape Ordinance Blasted by Female Activists #Vaw #AFSPA #womenrights (kractivist.wordpress.com)
India Rape Ordinance Blasted by Female Activists #Vaw #AFSPA #womenrights
by kracktivist in Advocacy, Announcements, Health Care, Human Rights, Justice, Kractivism, Law, Minority Rights, Violence against Women, Women Rights Tags: Armed Forces (Special Powers) Act 1958, Delhi, Delhi High Court, India, Indira Jaising, Manmohan Singh, Verma Committee, Women Rights
By Swapna Majumdar
Women's rights activists in India are hailing a voluminous set of far-reaching legal proposals as a triumph of women's activism. But they denounce a governmental ordinance announced on Sunday as falling far short.
NEW DELHI (WOMENSENEWS)–Indian women's rights activists are blasting an ordinance promulgated by Indian President Pranab Mukherjee on Sunday to amend criminal laws on sexual crimes against women.
They say it was crafted behind closed doors in response to public outcry at a notorious gang rape, does nothing to ensure justice in that particular criminal case and falls far short of measures just proposed by a high-profile committee of legal jurists.
"The government has stealthily passed this ordinance without sharing it with the public and without actually debating and discussing it," said Kavita Krishnan, secretary of All India Progressive Women's Association, a group affiliated with the Communist Party of India (Marxist-Leninist) Liberation.
She said the ordinance "made a mockery" of the numerous measures recommended by a jurist committed, led by former Supreme Court Justice JS Verma, that aimed to bolster the level of legal reprisal for sexual violence.
"All the recommendations that can actually strike at the heart of impunity have been dropped," Krishnan said.
Women's groups staged street demonstrations on Monday against the ordinance, which
amends the country's penal code and code of criminal procedure by replacing the word "rape" with the broader term "sexual assault," which encompasses stalking, voyeurism, acid attacks, trafficking and sexual harassment as criminal offenses.
The ordinance also says that if a rape victim dies or passes into a vegetative state, the accused could get death and the minimum punishment would be 20 years, something the Verma committee has also proposed.
This ordinance, which took effect after the president signed it, will be brought before the next session of Parliament beginning on Feb 21. Parliament must pass it within six months for it to become a law.
The ordinance came a day after the five young men accused of a deadly gang rape in Delhi in December pleaded not guilty after being formally indicted in a special court on 13 charges, including rape and murder.
Voluminous Recommendations
It was approved by the cabinet at a special meeting convened by Prime Minister Manmohan Singh to discuss the voluminous set of recommendations for related national legal reforms released by the Verma committee on Jan 23.
Women's groups in India have hailed the committee's 657-page report on criminal law amendments as a triumph of the women's movement in the country.
On Monday, Finance Minister P Chidambaram, a senior cabinet member, held a press conference to defend the anti-rape ordinance, saying it would deter criminals.
While acknowledging that the ordinance would not have much bearing on the deadly Dec. 16 gang rape case, he said that its provisions on procedural law would help speed completion of the trial.
He reiterated that the government had not rejected any of the Verma committee's recommendations.
"Some issues, like marital rape and amendments to the Armed Forces Special Powers Act, have not been incorporated in the ordinance because of the diversion of opinion on these issues," he said.
Chidambaram added that the ordinance was needed as the matter of crimes against women could brook no delay. Only an ordinance could establish a law immediately while the passage of a bill would take time, he said.
The Verma committee's report raised contentious issues that touch on the complicity of law enforcers in committing sex assault and protecting perpetrators. Among other recommendations, it advises ending criminal immunity for armed forces personnel under the Armed Forces Special Protection Act. The ordinance is silent on that issue.
In a related legal development, the Supreme Court admitted a plea on Monday to lower the legal age of a minor to 16 from 18.
This follows the Juvenile Board's ruling on Jan. 28 that the sixth person accused in the gang rape case was a minor at 17 years and six months and he could not be jailed for committing the crime.
The ruling means he could now be sentenced with a maximum three-year observation at home. The victim's father took a strong objection to the board's decision and told TV reporters that he would approach any court or authorities to seek justice for his dead daughter.
The government said consultations would be held to enable a consensus on the issue and that would require a separate bill.
Both the Verma committee and other child rights activists say lowering the age to 16 would violate the rights of children ratified under the international Convention of Child Rights.
A commission of inquiry led by former judge of the Delhi High Court, Justice Usha Mehra, appointed by the Delhi government to look into how the nation's capital could be made safer, has not yet released its recommendations.
The Delhi police, however, have already said they will recruit 418 female junior inspectors and 2,088 female constables and deploy police vans outside women's colleges in the capital city. Women can dial the toll-free emergency police number (100) to seek assistance to be dropped home at night by a police van. Police also say they will intensify security between 8 p.m. and 1 a.m. at entertainment hubs in the city.
These measures keep promises that police officials made to women's groups to improve street safety.
Judicial accountability is also a necessary part of the effort to reduce violence against women, says Indira Jaising, additional solicitor general of India.
"It is important that discrimination against women by judges not be tolerated and the judiciary demonstrates zero tolerance of violence against women in the home and on the streets through its judgments," Jaising said recently, when a group he co-founded, the Delhi-based Lawyers Collective, released its recent report on the implementation of the Domestic Violence Act. The group found evidence of judicial bias towards women and recommended an official mechanism to monitor the performance of the judiciary.
Swapna Majumdar is based in New Delhi and writes on gender, development and politics.
#India – Changes in Criminal Law vs Justice Verma Recommendations #Vaw
02 Feb 2013 17 Comments
by kracktivist in Advocacy, Announcements, Human Rights, Justice, Kractivism, Law, Minority Rights, Prison, Violence against Women, Women Rights Tags: Asia, capitalpunishment, Crime, discrimination, equality, feminism, gender, Health, Human Rights, India, Indian Penal Code, New Delhi, Rape, Sexual Assault, Types of rape, Verma Committee, Women Rights
Changes to law will clearly define unwelcome sexual acts
TNN | Feb 2, 2013, 04.25 AM IST
NEW DELHI: Changes to the criminal law dealing with offences against women cleared by the Cabinet aim to not only add specific new crimes but move the focus from interpreting terms like "modesty of a woman" to clear cut definitions of unwelcome sexual acts.
The government has acted on the Justice J S Verma committee's view that provisions dealing with sexual assault need to be looked at afresh in the light of the need to cover a range of offences that need a higher degree of punishment.
Intentional contact intended to harass a person or threat of sexual violence will be dealt with under the enhanced definition of sexual assault that seeks to plug loopholes exploited by offenders seeking to argue subjectively on what constitutes "outraging the modesty of a woman".
The government, however, did not accept the Verma committee's view on criminalizing marital non-consensual intercourse. The issue of rape by armed forces as a specific category was also not accepted.
The pending Criminal Law Amendment Bill, 2012 criminalizes sexual activities between the age of 16 to 18 years with which the Verma committee did not agree. This will mean that once the bill is passed, age of consent will become 18.
Acid attacks, a frequently reported crime often motivated by desire for revenge on an advance being rejected or a relationship souring, are seen in the context of the long-term impairment caused to a victim's right to live with dignity.
Besides the act of throwing acid on a woman, the permanent or partial damage caused to the victim should be taken into account, the Verma committee had recommended.
Just like acid attacks, public disrobing of women is often resorted to as an act of vengeance for being spurned. Additionally, caste prejudice and women being relatively defenceless victims for enmity harboured with male members of a family also lead to disrobing.
Stalking has been seen by the Verma committee as an act that can curb a woman's right to freedom of expression and even education in terms of younger victims. The specific offence will deal with acts of electronic intrusion and hacking. It will also address attempts to foist unwelcome attention and threat of violence.
The tough and graded punishments for rape, rape that results in severe physical damage and rape that leads to death are important amendments that have been dealt with. Aggravated rape will be punishable with 20 years jail or life term than will mean till the extent of natural life.
Changes in laws dealing with evidence are particularly significant. The question of moral character will not be put to a woman during cross-examination and there will be a presumption of lack of consent in certain prosecution cases.
Just as moral character will not be factor, neither will the sexual history or experience of a victim be deemed relevant in adjudging whether sexual assault has been committed.
This will mean that if sexual intercourse is established by the prosecution, the issue that will need to be evaluated is one of consent.
JUSTICE VERMA COMMITTEE RECOMMENDATIONS INDIAN PENAL CODE (1860)
Accepted | Section 354: Sexual Assault and Punishment for Sexual Assault – Entirely accepted
Accepted in parts | Section 100:
Only Right to Private Defence— Inclusion of an acid attack u/s 326A was accepted and the rest proposed was already existing in the IPC
Not Accepted | Section 376A:
Sexual abuse by husband upon his wife during separation—Verma Committee wanted to delete it. Was retained by MHA as marital rape was not agreed to.
Accepted | Section 354A: Assault or use of criminal force on woman with intent to disrobe her – Entirely Accepted
Accepted in parts | Section 166A:
Public Servant disobeying direction under law – Directions relating to crimes against women proposed to be made punishable upto only one year against the recommended five years as proposed by Justice Verma Committee. Rest accepted
Not Accepted | Section 376B (1):
Rape of an Underage Person – Not accepted as the provision is in conflict with the PCSOA, 2012
Accepted | Section 354 B:
Voyeurism – Entirely accepted
Voluntarily causing grievous hurt through use of acid etc. – Female circumcision proposed was not accepted. – Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted
Not Accepted | Section 376 B(2)
Punishment for causing death or a persistent vegetative state in the course of committing rape of an underage person – Death penalty was not recommended
Accepted | Section 354 C (1):
Stalking – Entirely accepted
Accepted in parts | Section 326B:
Voluntarily throwing or attempting to throw acid etc. – Compensation adequate to meet at least the medical expenses incurred by the victim was not accepted. Rest was accepted
Not Accepted | Section 376F:
Offence of breach of Command Responsibility – Fixes vicarious criminal responsibility on the leader of a force for acts of subordinates. Not accepted
Accepted | Section 354C (2)
Punishment for stalking – Definition entirely accepted
Accepted in parts | Section 375 Rape – Gender Neutrality of the act was not recommended which was not accepted by MHA. The Bill criminalizes the sexual activities between 16 and 18 years which the Verma Committee did not agree. Verma Committee criminalizes marital non-consensual sexual intercourse which is not accepted. Rest of the recommendations were accepted
Accepted | Section 370 Trafficking of a Person – Entirely accepted
Accepted in parts | Section 376 (1) Punishment for Rape – Payment of compensation to the victim was dropped. Rest of the recommendation was accepted
Accepted | Section 370 A Employing a Trafficked Person – Punishment entirely accepted
Accepted in parts | Section 376 (2)
Aggravated Rape – Payment of compensation to the victim was dropped. Rest of the recommendations were accepted
Accepted | Section 376A
(re-numbered as 376B) Sexual intercourse by a Person in Authority – Accepted in full
Punishment for causing death or a persistent vegetative state in the course of committing rape – Death penalty was preferred by MHA. Rest of the recommendations were accepted
Accepted | Section 376C Gangrape – Accepted entirely
Accepted in parts | Section 376D
Gang rape causing death or a persistent vegetative state shall be added: Death penalty was preferred by MHA. Rest of the recommendations were accepted
Accepted | Section 376E
Punishment for Repeat Offenders – Accepted entirely
Accepted | Section 509: Repeal accepted as offences covered elsewhere
CRIMINAL PROCEDURE CODE 1973
Accepted | Section 54A: Proviso to Section 54A regarding identification of arrestee by a disabled person – Accepted entirely
Accepted in parts | Proviso to Section 154 Registration of an Offence – Provision to record evidence by police officer at the residence of the person reporting the offence. Mandatory videographing was not agreed to and converted to optional
Not Accepted | Section 39(1) Clause (vb) – Compel communication of information of offence relating to crimes against women to the nearest Magistrate – Not accepted as it is liable to be misused
Accepted | Section 160: No male below 18 and above 65 years and woman or physically disabled shall be required to attend a police station
Accepted in parts | Section 164 (5) (a) and (6)(b) Recording statement by a magistrate – Special assistance for mentally or physically disabled persons to be given by magistrate. Statement of mentally or physically disabled person to be considered sufficient for examination-in-chief and cross examination. However, mandatory videography not agreed to and changed to optional
Not Accepted | Section 40A:
Intimation by the panchayat member the communication of information of offence relating to crimes against women to the nearest magistrate—Not accepted as it is liable to be misused
Accepted | Section 198B:
Cognizance of an offence u/s 376(1) when persons are in marital relationship
Not Accepted | Section 197(1)
Sanction for prosecution – No
sanction would be required for prosecution of judge or magistrate or public servant if accused of crimes against women. Not agreed to avoid false complaints
Accepted | Proviso to Section 273:
Recording of evidence of a victim below 18 years – Victim will not be confronted by the accused. Accepted in full
Compensation to victim – Payment of compensation of an amount adequate to meet atleast the medical expenses incurred by the victim. This is not acceptable as the compensation would be very low. The Bill has a better provision
Accepted | Section 327:
Substitution of new offences defined for rape (376A, 376B, 376C, 376D) – Technical formality
THE INDIAN EVIDENCE ACT, 1872
Accepted | Section 53A: Evidence of character of previous sexual experience not relevant in certain cases – Fully accepted
Accepted | Section 114A:
Presumption as to the absence of consent in certain prosecution for sexual assault – Fully accepted
Accepted | Section 119: Dumb witness substituted by 'persons who are unable to communicate verbally – Fully accepted
Accepted | Proviso in Section 146:
Question regarding the moral character will not be put to the victim during cross examination – Fully accepted
ARMED FORCES (SPECIAL POWERS) ACT, 1958
Not Accepted | Proviso to Section 6: No sanction would be required if the armed force personnel is accused of a crime against woman
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