India: Measures Suggested to Reduce Violence Against Women

Representation by Centre for Equity Studies to the Justice Verma Commission:

Measures Suggested to Reduce Violence Against Women

Date: 5th January 2013

To
Justice J. S. Verma, Justice Seth and Mr Gopal Subramanium

Chairperson and Members of the Committee constituted to give report regarding changes in law for faster trial and proper punishment in case of sexual offence of extreme nature against women.

The Centre for Equity Studies is an independent organization engaged in research and advocacy on a range of social and economic justice issues in India. We attempt to study the nature and causes of social injustice and inequity in India, to find ways to move towards a more equitable, humane and peaceful society. We seek to influence public policy and law in favour of the most disadvantaged communities in this country through a range of work.

The struggle and eventual death of young student from Delhi following her kidnapping, brutal gang rape and assault awakened many sections of Indian society, demanding accountability from the government to check violence against women. Many important suggestions have emerged on this subject, which your learned Committee will no doubt be considering. This anguish has also in some quarters led to calls for harsher retributive justice including death penalty and demanding modifications in the Juvenile Justice Act 2000 (JJA) so as to exclude children committing serious offences from the purview of the JJA or lower the age of juvenility in the JJA.

The need of the hour, we believe, is to ensure greater security and justice for women and girls, within a larger framework of a humane, just and equitable society.

This note the note makes no attempt to be comprehensive, but summarises some of our major concerns.

1. Vulnerable Groups

CES requests the learned Committee to kindly focus adequately on safety and gender justice for the most marginalized and vulnerable women such as dalit and adivasi women and women of minority communities, women in conflict situations who are subject to sexual violence as a political weapon of subjugation, when the aggressors belong to upper caste, class, or authority, disabled women, homeless and destitute girls and women, sex workers, and trafficked girls for sexual and domestic labour, transgender people, domestic workers, casual wage workers etc.

We believe that for any system to be effective for the protection of girls and women from sexual violence should be seen in the wider context of power relations and the endemic and entrenched violence against women. We need to draw your attention to the violence perpetuated against vulnerable women each day in both public and private sphere. Such assaults are not isolated incidents, but are rather experienced in a continuum of daily living, in which sexualised violence against the powerless is normalised and invisibilised. Rape is the routine violence of homeless women living on city streets, who fear the police most. Dalit girls and women routinely suffer sexual abuse. It is routine for young girls and women with intellectual disability living in State run institutions. Violence against women with disabilities is often a silent act because in a majority of cases they are unable to communicate the act of violence. Even if they communicate, they are not believed, their complaints not heeded. There are few human rights protections for women in conflict areas, when they suffer sexual violence from men in uniform. Women’s bodies are used as battlefields in mass communal violence. Domestic workers have far less protection from sexual assault and harassment in the confines of the homes which are their non-public work places. Single women suffer more violence from men, because they are seen as ‘unprotected’; and the criminal justice system is even more indifferent or actually hostile to single women survivors of violence.

a. For such vulnerable categories of women and girls, the state should firstly aim for preventive mechanisms, systems and even structures, designed with sensitivity to their specific vulnerabilities. For instance, urban homeless women can never be protected from violence, unless the state has a legal duty under the law to ensure that all homeless women, as well as women survivors of violence who leave their homes, are ensured by the state safe and dignified spaces. This should form part of any law which aims at safety for women. Some preventive measures are elaborated in the next section.

b. It has been our common experience that aggressors are confident of the powers they exercise and are connected to and absolutely sure of getting away with the act of rape. The victim has diminishing chances of being heard depending on the degree and multiplicity of her vulnerability. A mechanism of acknowledging the special vulnerability of the rape victim should kick in from the very first act of registering the complaint, and the criminal justice system should provide adequate support to ensure that she has equal access to justice.

c. By the same logic, multiple vulnerabilities should be recognised and acted on right from booking charges under multiple acts - For example if a dalit woman is raped, both provisions of the SC/ST Atrocities Act and the proposed Sexual Atrocities Act must simultaneously be invoked. Similarly financial support and compensations should award added amounts. Since vulnerabilities are multiple, compensation should be multiple as well.

d. Official recognition of vulnerability would hold the state machinery accountable if adequate protective attention is not given to secure the victim and her family against further harassment and attack, and to secure the evidence against being destroyed.

e. Recognising multiple vulnerabilities would also explain and condone the delays in registering the case and filing evidence as the victim would need to build courage to approach the judicial systems. For instance, in conflict and post-communal violence sites, women sometimes take months or even years to feel confident enough to file their complaints.

f. Protections to security personnel by laws like the Armed Forces Act should be withdrawn, and in any case, even until such laws are in force, they should provide no protection for sexual crimes.

2. Preventive measures in areas of their concentration for their safety and security

a) The system of shelters for women should be greatly expanded, but these should be open, voluntary, dignified and above all safe places of women’s shelter. There should be an independent and active system of independent (all women) visitors for all these homes and shelters, and every state-based shelter home for women, nari niketans, remand homes, juvenile delinquent homes, shelters for disabled children, orphanages, as well as schools, prisons and areas under army patrolling or combing operations should have a schedule of inspections by these independent to probe for on-going sexual harassment or assault. The people confined within should have the right to insist on persons whom they trust outside jail to accompany the team when it does these surprise checks

b) Working Women’s Hostels: The number of affordable student and working women hostels for SC/ST/ Minority/ Disabled girls need to be built to ensure safe accommodation for migrant women. There should be a wide network of homeless women shelters as a legal right in every city and town (with a capacity to house at least 0.25% of the total population of the city).

c) Public Spaces: The current policy of clearing the streets of vendors and chasing away other people who occupy public space at night makes the street more unsafe for women. This policy should be stopped as a greater presence of people and well-lit public areas at night are essential in reducing the danger to women travelling to and from work as well as homeless women. Women should be given priority in being given vendor licenses and employment in public transport.

d) Public Transport: There should be an expansion of the public transport system to run round the clock. The government should bring a public-transport-for-women-on-demand facility for any neighbourhood with a number of working women coping without public transport, including dispersed adivasi settlements and urban slums, functioning in the same manner of response to demand as anganwadi-on-demand. Strict implementation of women’s general compartment in all trains and women’s seats in all inter-city buses is necessary. The state should launch a special drive to train and recruit women of as drivers and conductors in state run buses. Both public and private forms of transport must be effectively regulated and monitored for safety by the government. The routes from public transport sites to housing areas must be well-lit and tinted window vehicles should be strictly monitored. In Delhi specifically, the metro services need to be operational throughout the night with the same security as provided during the day. The state govt should also launch a scheme to promote women’s employment in all transport services such auto’s, taxi’s, buses, metro’s.

e) School curricula should include basic information on how stalking, harassment, and touching another person without consent constitute unacceptable and illegal behaviour, and the government should set up a training module for at least 2 staff members from each school to help children to report cases of domestic sexual assault. Caste, communal, gender identity and disability based discrimination against dalit, adivasi, religious minorities, gender and sexuality minorities, people with disabilities, homeless and working class people, etc. should be clearly and unequivocally taught to be unacceptable. This will greatly decrease their vulnerability to sexual assault.

f) Health care providers: Due to its impact on physical and mental health and a high degree of mortality, rape is also a public health issue. All Medical personnel and public health workforce (ASHA and ANM workers) need to be trained in sensitizing at the family and community level in de-stigmatizing rape-survivors, enabling them to file FIR’s.

g) Effective women help-lines and other emergency services should be provided around the clock and should be well advertised by video and audio messages in rural and urban areas. Emergency telephones to this helpline must also be available at all bus and train stations. Calls should be addressed by specially trained staff and automatically recorded for later review, and the staff should be able to dispatch immediate vehicles to assist women facing an emergency. Disciplinary action must be taken against staff for inappropriate or inadequate responses.

h) Accountability of Institutions: Institutions such as the National Human Rights Commission (NHRC), National Commission for Schedule Castes (NCSC), National Commission for Scheduled Tribes (NCST), National Commission for Minorities (NCM), National Commission for Women (NCW) and the corresponding State Commissions, created for safeguarding constitutional provisions and protection of vulnerable groups must be more proactive. They should be made to respond to all complaints lodged with them in a time-bound manner. There should be systematic and regular review processes by independent bodies involving women’s groups, put into place to audit the work of these institutions.

i) Disability Help Desks for Disabled Women: All departments that deal with disability pension administration should have a clearly marked desk where people can go to report sexual harassment and assault. They as well as police stations should carry information for complaints procedure and all awareness material in accessible formats to cater to people with disabilities (Braille, audio, audio-video with same language sub-titling, large print, easy to read and pictorial guidance and availability of sign language interpreters). The inaccessibility of police stations and their present lack of capacity to interpret complaints from women with disabilities must be addressed in the long run.

j) The Committees against Sexual Harassment which are to be constituted in various state and private establishments (including schools. Hostels, colleges) as per the Vishakha judgment, should be constituted with priority and urgency. Since most women work in unorganized sectors, such committees need to be formed at all attached to panchayats, urban wards and gender desks in police stations. The said Committees should function independently and effectively, and create an atmosphere of no tolerance to sexual harassment/violence. Section 16 of the proposed amendment to the sexual harassment bill which punishes a woman for a so-called false complaint must be scrapped. This would go a long way in ensuring dignity and empowering women at their workplace.

3. Suitable amendments in law and procedures for police and judicial accountability

a) Aggravated Sexual Assault: Section 376 should include instances of sexual assault during sectarian (caste, ethnic, communal) violence, sexual assault against physically and mentally disabled women, homeless, SC/ST. or by persons from socially entrenched power structures such as

(i) State supported position of power – members of legislatures, members of the judiciary, and all government servants in police, army, bureaucracy and all public sector units and sundry bodies.

(ii) Custodial power : When the accused has the custody of the victim both in state and non state supported institutions of custodial nature - hospitals, educational institutions – schools, colleges and higher; shelters, juvenile homes, orphanages, mental health institutions etc.,

(iii) When the accused has a socially sanctioned advantage over the victim such as upper caste versus dalit etc.

b) Assault by Public Servants: Any incident of sexual assault by those holding public office, public servants, or custodial power, irrespective of where it occurs, should be treated as custodial violence since the perpetrators exercise power and control over the people of that area owing to their position of authority. Such sexual assault should be considered to be a case of aggravated assault.

c) SC ST Presumption: The requirement in s.3(2)(v) of the SC/ST Prevention of Atrocities Act that it must be shown that the offence was committed on the ground that a person was a SC/ST must be done away for sexual offences. An exception must be carved to the effect that in cases of sexual offences where the victims are SC/STs, the requirements of s.3(2)(v) are automatically satisfied.

d) Gaps in law of sexual offences: There are serious gaps in the codification of crimes of non-penetrative sexual assault. The gap between ‘outrage of modesty’ (S. 354 IPC) and ‘penetrative sexual assault’ remains large. We believe that sexual crimes form a continuum, and that the graded nature of sexual assault should be recognized, based on concepts of harm, injury, humiliation and degradation, and by using the well-established categories of sexual assault, aggravated sexual assault, and sexual offences.

e) Outdated terms: Outdated and offensive terms such as ‘rape’ ‘ravishment’ ‘enticement’ ‘chastity’ ‘outraging of modesty’ in the substantive provisions, to be replaced with terms that define harms in terms of sexual assault, violence and violation of bodily integrity.

f) Definition of the offence: The offence of rape currently includes only the act of peno-vaginal penetration. However there are other invasive manners in which women are sexually harmed. Hence it is suggested that the offence of ‘rape’ be substituted with a graded offence of ‘sexual assault’ which shall include all acts where a man uses objects, penis, fingers or any other body part to penetrate the vagina, urethra, anus or mouth of a woman.

g) Sexual assault.-­ A person is said to commit sexual assault if he or she commits any of the any of the following acts against a person belonging to a group by virtue of the person’s membership to the group:

a. against a woman

i. rape;

ii. gang rape;

iii. rape or gang rape as part of or in the course of organised targeted violence.

b. against any person, without their consent or against their will, the introduction by a man of his penis or any other body part or an object intovagina, mouth or anus, to any extent;

i. causing harm or hurt to reproductive organs or genital organs;

ii. exposing one’s sexual organs in front of any person

iii. sexual contact of any sort, including the performance of sexual acts for any length of time;

iv. removing the persons clothes, partially or fully, or compelling that person to undress himself or herself, partially or fully, in public view or otherwise, or parading that person in undressed state in public view or otherwise;

v. any other act or conduct that subjects that person to sexual indignity.

h) Gender neutral sexual assault: The formulation of the crime of sexual assault as gender neutral in all circumstances, as proposed in the Criminal Law Amendment Act, makes the perpetrator/ accused also gender neutral, i.e a woman or man can be accused of sexual assault. The act of sexual assault has to remain gender-specific and limited to men as perpetrators, as there is no empirical evidence to support a finding to the contrary. Across the country women and transgender people are facing severe sexual violence and we strongly oppose the gender-neutrality clause in relation to perpetrators under Sec. 375 IPC. However, abetment which would include instigation, intentionally aids or fails to act, conspires to commit the act, wilful misrepresentation, or by wilful concealment can be gender neutral.

i) Age of Consent: The Protection of Children from Sexual Abuse Act, 2012 recognizes a child to be a person below the age of 18. Furthermore, it recognises the following sexual offences - penetrative sexual assault, sexual assault and sexual harassment. This law makes the issue of consent under Section 375 of the Indian Penal Code infructuous. Thus, the age of consent under Section 375of the Indian Penal Code should be amended to 18 years.

In order to prevent criminalization of sexual expression by young persons, often against the wishes of their parents, in cases where the victim is between the ages of 16 to 18, if she testifies in court that the sexual act was done with her consent, then the charges against the accused should be dropped. There is no demerit in allowing the accused in these cases to take the defence of consent, as that is already available to the accused.

j) Marital Rape: Research indicates that women in physically abusive relationships are commonly vulnerable to sexual violence, especially rape by their spouses.[1] Campbell and Alford in 1989 reported that most of the women who were subjected to marital rape were also treated with violence during sex.[2] This form of sexual assault adversely impacts a woman in terms of her emotional, psychological and physical health thereby exacerbating her vulnerability to sexually transmitted diseases, gynaecological[3] and psychological disorders[4].[5] She is further unable to negotiate safe sex preventive measures to protect herself from diseases such as HIV/AIDS[6].

a. The various international conventions, treaties, protocols and recommendations such as CEDAW, Beijing declaration, Platform for Action, ICCPR, Declaration on the Elimination of violence against women, Statute of the International Criminal Court (Rome Statue 1998)[7], ASEAN sub-committee on Women, 1975[8]etc seek to protect women from all types of violence.

b. Exception to Section 375 of the Indian Penal Code, states that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age.†Section 376 of the Indian Penal Codes, states the punishment for rape when the wife is below 12 years is seven years to life imprisonment and if the wife is between the ages of 12 to 15 years the punishment is for a period of two years.

c. This differentiation in punishment further recognises that the husband can marry a girl who is 12 years of age as well as consummate a marriage, though punishable with imprisonment for a period of two years. This period punishment is lower than the punishment granted for any other category of ‘rape’.

d. The current the age of consent to sexual intercourse under Section 375 of the Indian Penal Codein India is 16 years. The exception to Section 375 falls below this age. The 205th the Law Commission Report of 2008 recommended that the exception should be deleted so that it would make sexual intercourse between a husband and his wife who is below the age of consent an offence of rape.

e. Thus, Marital Rape should be made an offence, linked to the age of consent.

k) Standard Operating Procedures with detailed guidelines for each aspect of investigation should be put in place. (Refer to the SOPs in place for the Delhi Police since 2005)Any lapses on the SOR’s by police personnel should be proactively taken cognizance of by the superior officer/ court and action taken.

l) Exclusion of Sanction for Prosecution of Public Servants: An exclusion of the application of S. 45 and S. 197 Cr PC to the provisions of sexual assault, in order that the existing widespread impunity for sexual assault where it is committed by public servants, is ended. No sexual assault can ever be construed as being perpetrated “in discharge of official duty†and therefore the statutory requirement of prior sanction from the government for prosecution of public servants ought not to be extended to the crime of sexual assault;

m) Sexual Assault Examination: The two finger test which is widely used during medical examination of the rape victims to determine whether they are ‘habituated to sexual intercourse’ or not, must be explicitly barred. Similarly, there are several other such things that are being recorded in medical documents such as old tears of the hymen, and ‘habituation to sexual intercourse’ that must also be called into question. For instance, the proforma for medical examination of sexual assault that was issued by the DG Health Services, Delhi in 2010 asked the doctor to record the size of the hymenal orifice and vaginal introitus. After much furor, these have been removed. But the revised proforma still records whether the hymen is torn or intact. Hymen should be treated like any other part of the genitals. Only those findings such as fresh tears, bleeding, edema etc. that are relevant to the episode of assaultare to be documented.

a. Apart from past sexual history, medical examination proformas also mention irrelevant things like ‘built’ or ‘nutrition’. It is rooted in the belief that a well-built woman cannot be raped as she would be able to resist if the ‘really wanted to’ – this is a bias propagated by forensic text books. It should be ensured that proformas are gender sensitive in all respects and that the medical examination itself respects the dignity of the survivor.

b. In a situation of mass violence (caste, communal or armed conflict) various forms of sexual assault are perpetrated against women and girls. Doctors working in such situations should therefore look for signs/evidence of sexual assault amongst all girls and women who come to the hospital, whether they are brought dead or alive. Sexual Assault examination should be made a part of post mortems in situations of armed conflict and communal violence.

n) Judicial procedure: must include reading aloud and explaining the criminal procedures to the victims before the start of the trial by the judge including choice of PP, Advocate guidelines for the cross examination of a victim of sexual offences and assault upon which it shall be the duty of the judge to place on record the decision of the survivor to the choices offered to her.

o) Data Base: A date base of cases of sexual assault be maintained online and be publicly accessible, to track the implementation and performance of the law in each registered case, to help identify weak links. The name of the survivor must not be mentioned, but that of the accused and the neighbourhood where the assault took place, and the progress on the case must be made publicly known on the internet and local information especially on habitual sex offenders must be available at each local police station.

4. Mechanisms for ensuring equal access to justice

a) Gender desks at Police stations- Trained police personnel and/or social worker to be appointed at every police station to take in complaints of all forms of violence against women including sexual assault. First Information Reports should be registered immediately following complaint and due process of law be followed thereafter. The gender desks should also be required to provide immediate medical attention and other support services such as shelter, filing for compensation as may be required.

b) Registering cases: The FIR of all victims should be registered at the police station. Refusal to file an FIR based on caste, class, gender identity, profession, of the survivor must be legally punishable through reporting to superior police officers or officers at other police stations. In particular if a Superintendent of Police receives a complaint that a particular police station has refused to register an FIR, he must be made personally liable to get the FIR registered immediately and to conduct an enquiry against his erring subordinate, with legally enforceable consequences for not doing so within 48 hours of being informed.

c) Restraining orders on accused: In order to ensure the protection of victim/s of sexual violence long term restraining order should be put in place against abuser/s. The adoption of restraining orders is to ensure the rights of victim’s by giving them priority to access safe space, and have normal day-to-day life functioning. In cases of abuser/s being related to the victim/s such as: parent, child, sibling, in-law, cousin, etc., the abuser/s should be restrained from home, and In cases were abuser is not related to or doesn’t have a close personal relationship with victim/s such as: a neighbour, roommate or complete stranger, employee, employer, doctor, teacher, or a colleague, the abuser/s should be restrained from the establishment, depending on the nature of establishment. This order should be enforced from the time when the complaint is filed until the final judgement is delivered. In case of survivor/s appeals to the higher court, on the request of survivor/s the restraining should be extend until the final judgement of the court. Even there should be option of renewal or extending restraining order if circumstances, such as danger of abuse or harassment, haven’t changed when the order expires.

This restraining order should mainly consist of three provisions such as: Stay away provisions- to stay away from victim, his/her children, home, workplace, school or college, depending on the nature of space. Second, no-contacting provision-including prohibition of all contacts, whether by telephone, notes, mail, fax, email or any other delivery. Third, cease abuse provision, order the abuser/s to stop hurting or threatening victim, his/her family, and property, or orders against someone who on behalf of abuser is threatening the rights and safety of survivors.

d) Protection of victims and witnesses: Protection of victims and witnesses has to be ensured, from the pre-trial to post-conviction stages, in accordance with the recent jurisprudential developments, the Law Commission’s 198th Report of August 2006, and decisions of the Supreme Court.

e) Arrests in case of rape, aggravated sexual assault: Immediate arrest of the accused and suspension of all accused from their posts, once the FIR is registered or suo moto cognizance of the crime is taken, is essential. The accused should not be allowed to exercise any authority in the area where the complaint of sexual violence is made, till the final determination of the complaint.

f) Speedy investigation: The responsibility of a proper investigation falls on the investigating agency. Any delay, shoddiness, partisanship and inefficiency in collection of evidence, and lack or delay in medical examination etc should be seen as a criminal offence and negligence of duty, and the concerned officers or personnel should be penalised for negligence or dereliction of duty and/or charged with complicity in the crime.

g) Free legal aid: We recommend that all lawyers registered in the court, be compulsorily made to take at least 2 cases of legal aid every year. Currently the free legal aid mechanism of NLSA is weak and not effective in delivering legal aid services to women from marginalized communities. Each victims should have the choice of lawyer for legal aid, and that no lawyer registered in the court can refuse to take a case unless they have at least 2 cases of legal aid in a year. Also, survivors of sexual assault should be offered the option of having a lawyer of their choice appointed as Special Public Prosecutor for the case.

h) Provision for interpreters/ translators in order to record the testimony of disabled victims or witnesses. Cases involving disabled women end in acquittal as their testimony is either not recorded at all or is recorded without the help of independent interpreters.

i) Support during Trial: Experience has shown that in-camera trials can be more traumatic for the victim surrounded by aggressive defence lawyers and the accused in a closed court room. Additionally there is no scope for monitoring the trial, which becomes important given the attitudinal biases that actors in the legal system have towards women who complain of sexual assault. Hence, the victim must be allowed to have family/ friend/ representative of women’s organization/ gender desk personnel/ district committee representative of her choice to accompany her during the trial.

j) Fast Track Courts: Cases of sexual assault and violence should be speedily disposed through day to day hearing and trial .The pending cases against public servants, public officials, security forces, police and wardens of NariNiketans and other protective homes for girls and women must be dealt with on a priority basis so that instead of inflicting further violence these institutions play their role of providing thorough investigation and appropriate support.

k) Data Base: A date base of cases of sexual assault be maintained online and be publicly accessible, to track the implementation and performance of the law in each registered case, to help identify weak links. The name of the survivor must not be mentioned, but that of the accused and the neighbourhood where the assault took place, and the progress on the case must be made publicly known.

l) Transgender Complaints: Transgender people must be handled by women police officers and not male police officers. The rules about arresting and detaining women at night should strictly apply to transgender people and sex workers.

5. Reparation including Compensation and Rehabilitation

a) As a measure of reparative justice, for victims and survivors of sexual assault, the 2012 Bill must lay down State obligations towards such remedy and reparation.

b) The State must be obliged by law to make provisions for free and high quality medical treatment, psychological care, shelter and livelihood in order to overcome possible destitution and social ostracism. This should be done through effective implementation and budgetary support of existing legal provisions and schemes for compensation/ rehabilitation for sexual assault. Such compensation should not be linked to the criminal trial and prosecution.

c) Compensation to be given to the victims, computed on the basis of injury received. The first instalment to be paid within 15 days of filing of FIR. This should be independent of the outcome of the trial or the victim retracting her statement at a later point due to whatever reason. Proactive enforcement of Section 357A of the CrPC, which talks about awarding compensation to the victims of crime.

d) It is the government’s responsibility and duty to protect the rights of women, the responsibility grows manifold when the woman is in the custody of the State. Considering the gravity of the crime, the rape survivor has a right to reparation. While financial compensation cannot erase the pain and suffering caused, it is the duty of the State to pay exemplary damages without any bureaucratic delays.

e) Multiple Vulnerabilities: In case of multiple vulnerabilities such as the rape of a dalit or adivasi woman the compensation should accrue from the provisions under multiple protection acts such as both from the sexual assault act and as per the framework for paying compensation under the SC ST protection of atrocities Act 1989.

No Death Penalty

As a statement by a number of feminist and progressive groups and individuals, while supporting demands for justice for persons guilty of rape, adds that ‘our vision of this justice does not include death penalty, which is neither a deterrent nor an effective or ethical response to these acts of sexual violence’.

India today stands among a minority of nations where the death penalty is still lawful. 141 countries have abolished the death penalty, from just 8 UN member-states in 1945. The overwhelming evidence from all countries which abolished the death penalty is that ending death penalty has nowhere resulted in increased crime; therefore there is little basis to believe that capital punishment is an effective, let alone essential, deterrent to heinous crimes like rape.

Death Penalty violates every person’s right to life guaranteed the Universal Declaration of Human Rights, 1948, the ICCPR, ICESCR, 1969 and Article 21 of the Constitution of India.

Furthermore, there is no evidence to suggest that the death penalty acts as a deterrent to rape. Available data shows that there is a low rate of conviction in rape cases and there is a strong possibility that the death penalty would lower this conviction rate. Death penalty may also discourage reporting of rape in cases where the offender is a friend of the family or actually a member of the family. The stigma of the rape itself combined with a possible death-penalty prosecution of a relative and its attendant publicity—as well as their feelings for the abuser—can only feed the fears that already inhibit non-offending family members from coming forward The most important factor that can act as a deterrent is the certainty of punishment, rather than the severity of its form.

In society today a ‘culture of rape’ exists which justifies violence and subjugation of women, by enforcing the death penalty, the state as well as society cannot shy away from their responsibility to address various social, economic and political question linked to violence against women. Moreover, the State cannot shy away from its responsibility to ensure safer spaces for women.

Both statutes and evidence are evaluated by human beings, and human beings are always subject to failings and bias. Law scholar Usha Ramanathan documents many pitfalls in the path of justice, including ‘eyewitness misidentification, flawed forensics, police and prosecutorial pursuing of conviction and not justice, false witnesses, dearth of defence lawyers for the indigent, false confessions and miscarriage of justice’. No judicial system in the world has been able to eliminate the chances of wrongful conviction, then how can we morally justify taking away the life of a person who may actually turn out eventually to be innocent?

This is aggravated by class, gender, caste, racial and communal prejudice among all actors in the criminal justice system – the police, prosecution and judges, which led Justice Krishna Iyer to observe that capital sentence has ‘a class bias and colour bar’, and is ‘reserved’ for crimes committed by the poor. Justice Bhagvati also agreed that the death penalty has a ‘class bias inasmuch as it is largely the poor and downtrodden who are victims of this extreme penalty’.

Beyond the failings and bias of the criminal justice system are ethical questions, with which we must grapple, even when enraged and anguished such as by the suffering of the gang-raped student. Justice Krishna Iyer reminds us of the sacredness of life, the ever-present possibility of redemption of the worst type of criminal, and the barbarity of the death penalty. I feel convinced that every human being must be given a chance to redeem himself. And every human being, even the most unrepentant criminal – rapist, terrorist, serial killer, child abuser - who wrongs us most grievously, still is worthy of our compassion. As lawyer and campaigner Yug Mohit Chaudhary declares, ‘If we have to become a more humane and compassionate society, and leave a better… world behind for our children, we have to curb our instinct for bloody retribution’. He adds: ‘Mercy tempers justice, makes it less exacting, more humane.’

The statement by feminists and progressives further observes: ‘Sexual assault occurs with frightening regularity in this country’ against ‘adivasi and dalit women and those working in the unorganised sector, women with disabilities, hijras, kothis, trans people and sex workers’, who are especially targeted with impunity. It calls for the ‘need to evolve punishments that act as true deterrents to the very large number of men who commit these crimes. Our stance is not anti-punishment but against the State executing the death penalty. The fact that cases of rape have a conviction rate of as low as 26% shows that perpetrators of sexual violence enjoy a high degree of impunity, including being freed of charges’.

The logic of awarding death penalty to rapists is based on the belief that rape is a fate worse than death. Patriarchal notions of ‘honour’ lead us to believe that rape is the worst thing that can happen to a woman. There is a need to strongly challenge this stereotype of the ‘destroyed’ woman who loses her honour and who has no place in society after she’s been sexually assaulted. We believe that rape is a tool of patriarchy, an act of violence, and has nothing to do with morality, character or behaviour.

If equal punishment is decreed for two crimes with differential offence to victim and society, there will be no stronger obstacle to prevent the committing of the more serious crime. This would be especially true in cases of rape which is generally a private act.

When death is the penalty for rape and murder, a rapist has an increased incentive to kill the person he or she has raped, especially considering he has the opportunity of eliminating the only witness (generally) to his crime. If murder does not incur additional punishment, then the motivation to kill the primary witness to the crime is strong. This would be viewed as an ‘invitation to the criminal to kill the victim’[9].

In cases of sexual assault where the perpetrator is in a position of power (such as in cases of custodial rape or marital rape or caste and religion violence), conviction is notoriously difficult. The death, penalty, for reasons that have already been mentioned, would make conviction next to impossible.

7. No Chemical Castration

The other demand from some political leaders and activists, suggested often as an alternative to the death penalty is chemical castration of sex offenders.

Violence, power, aggression and humiliation are central to understanding rape and sex is only a mechanism used to achieve those aims. Addressing the sexual element of rape does not address the violence and humiliation that rape is intended to inflict.

Rapists fall into different categories including those who deny the commission of the crime or the criminal nature of the act; blame the crime on factors like stress, alcohol, drugs or other non-sexual factors; rape for reasons related to anger, shaming, violence etc; rape for reasons connected to sexual arousal and specific sexual fantasies etc. Administering anti-androgens to rapists outside the last category will not be an effective response to check the incidence of rape.

Even the most ardent supporters of chemical castration recognise that administration of anti-androgens without relevant therapies defeats the point of the entire exercise. Given the significant side effects of chemical castration, a law that would require indefinite administration of anti-androgens for sex offenders is likely to be unconstitutional.

8. Juvenile in Conflict with the Law

The recent case has thrown up the issue of harsher punishment for the juvenile offender. Using this case as an example, an attempt is being made to amend the age of juvenile to 16 years from 18 years. This drop in age will create an artificial yet big divide between those children that the state needs to ‘protect’ and ‘care’ for and those children for whom the State has no positive obligation. We need to be convinced that all children are entitled to care irrespective of the offence they are found to have committed – offences by them are the result of our failure and we cannot shift the burden of it on them. To protect the rights of women we cannot violate fundamental principles of child rights.

The age of a juvenile as defined under the Juvenile Justice (Care and Protection of Children) is in consonance with Article 4 of the Convention of the Rights of the Child, 1989 (which has been ratified by India in 1992).

Furthermore, Article 37(a) places an obligation on the State to ensure that “neither capital punishment nor life imprisonment without possibility of release shall beimposed for offences committed by persons below eighteen years of age.†Even the Article 46 of the Riyadh Convention also states that the institutionalization of young persons should be a measure of last resort and for the minimum necessary period, and the best interests of the young person should be of paramount importance.

Even the Supreme Court in Kakoo v. state of Himachal Pradesh the court has advocated for “While the sordid features of the case, including the sadistic manner in which the crime was committed by their instinctive reaction tend to steel the heart of law for a sterner sentence, we cannot overlook the stark fact that at the time of commission of the offence, the appellant was hardly 13 years of age. An inordinately long prison term is sure to turn him into an obdurate criminal. In the case of child offenders, current penological trends command a more humanitarian approach.â€

We quote extensively from Prof. Ved Kumari’s submission to this very Committee, in the spirit of strongly endorsing her views. ‘The involvement of a child in the barbaric rape of the girl has left many of us questioning the sufficiency of the JJA to deal with cases like this. I believe that it is time to remain focused on the key question – why was this child without proper supervision of responsible adults for long five years? Why did the system not respond / took care of him when he left his home five years ago? While I fully condemn the perpetrators of this offence, I believe that we need to consolidate our approach of protection and preventive care for children who may end up like this.

‘The whole system gets shaken when one child commits a serious offence and we can see only the offence but not the child who ended up there because we were not there to look after him when he gave us a signal seeking help. I believe that children end up committing crimes like this when the JJA focuses only on children committing offences (the absolute number has not been more than 32 thousand in any year in a country with 1.25 billion population) but forget that there are more than 15 crore children who need care and if left unattended and uncared for, many of them end up like this.

‘We need to focus on ensuring that no child is left uncared for. We need to own up our failure in preventing commission of crimes like this. Punishing this child is not the answer... This boy was all of 13 years when he left home. Why did he leave? What was his home like? What happened to him in the last five years? What all has been responsible for turning him into this beast? Why juvenile justice system in place in our country did not reach out to him and prevented him from being what he has become today? Can we absolve ourselves from the responsibility for turning him into a demon?

‘One bad case is not the reason for changing the law though many a times that happens because of the political exigencies. Many political decisions are made not because they are needed on ground data but because of public sentiments - many a times fanned by the media. Even prior to this case, the government had proposed a provision for sending children found to have committed an offence to ’correctional institutions for adults’ - a euphemism for jail - after they attained the age of 18. This proposed amendment was opposed by all present in the meeting called by the Ministry. This case has only given a handle to the government to promote its proposed penal approach towards children’.

Harsh Mander

Centre for Equity Studies,

New Delhi

5 Jan 2013

[1] Raquel Kennedy Bergen, Ph.D. Marital Rape Applied Research Forum National Electronic Network on Violence Against Women, March 1999

[2]http://www.crisisconnectioninc.org/pdf/US_History_of_Marital_Rape.pdf

[3]Gynecological disorders would include vaginal laceration, vaginal and bladder infections, miscarriages, stillbirths, etc

[4] “Feelings of helplessness, depression, shame, self blame and worthlessness†-

[5] WHO Multi-country on Women’s Health and Domestic Violence Against Women, Initial Results on Prevalence, health outcomes and women’s responses, WHO, 2005

[6] “As battered women were least likely to use condoms than non-abused women†- Marital Rape – History, research and practice, Jennifer Bennice and Patricia A Resick, page 237

[7] “Not a Minute more, Ending violence against women†, UNIFEM, page 22

[8] “Not a Minute more, Ending violence against women†, UNIFEM, page 25

[9] Rayburn, Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John’s L.Rev. 1119, 1159-1160 (2004).