This is a guest post by MADHU MEHRA: The Criminal Law (Amendment) Bill, 2013, more popularly called the Anti-rape Bill, is now law. The outrage following the homicidal gang rape in Delhi unleashed events that lent force to the longstanding demand by the women’s movement for comprehensive reform of laws relating to sexual assault. These demands were bolstered by the recommendations of the high level committee, headed by retired Justice Verma, that called for reform of criminal laws, police reforms, prevention and education interventions to effectively tackle impunity for sexual violence. With the new bill passed by the parliament, the law stands substantially changed. This article takes stock of the ways in which the new amendments re-framed sexual offences in the law, their significance and the challenges that remain. While being far from comprehensive, these changes substantially transform the way legal redress for sexual offences have been framed in the law. A few examples below contextulise the significance.
- The definition of rape in the penal code is now expanded beyond penile vaginal penetration, to include all forms of non-consensual penetrative sexual acts by men on women. Moving away from a patriarchal framing of the offence, the offence responds more accurately to how women experience penetrative sexual assault. The law has historically privileged penile penetration of the vagina, distinguishing it from penile-anus or penile-mouth penetration. This distinction served to protect purity of male lineage, and simultaneously, stigmatise non-penile vaginal intercourse, labeled as ‘unnatural’ carnal intercourse under section 377 of the Indian Penal Code. This is declared an offence not because of the existence of force, but simply because it was deemed ‘against the order of nature’, serving to criminalise homosexuality (currently the constitutionality of this provision is under consideration of the Supreme Court of India). The new definition of rape breaks that binary between natural and unnatural penetrative sex as far as men and women are concerned, punishing all forced penetrative sex by men on women. However, since the law specifies that the victims of rape to be women only, it excludes male, transgender and other victims of penetrative sexual violence from the scope of legal redress – thus leaving undisturbed, the stigma attached to homosexuality.
- The new amendment defines ‘consent’, to mean an unequivocal agreement to engage in a particular sexual act; clarifying further, that the absence of resistance will not imply consent. Non-consent is a key ingredient for commission of the offence of rape. The definition of consent therefore is key to the outcome of a rape trial, and has been interpreted systemically to degrade and discredit victims of rape. Studies show how frequently rape judgments conclude that the sex was consensual, based on various factors, including that: the victim was not a virgin, that there were no injuries to show that she put up a stiff resistance, that the victim was ‘habitual to sex’, that the victim willingly took a ride with or accompanied the accused, that she was acquainted with one of the accused, that she mingled with male friends and so on. Rather than focus on the conduct and actions of the accused, rape trials have historically put the rape survivor under moral scrutiny. An amendment to the Indian Evidence Act in 2003 barred the use of previous sexual history of the victim to discredit the survivor’s testimony in rape trials. Despite this change, sexual history, real or perceived, has continued to inform every step of the rape prosecution to the survivor’s detriment. Against this backdrop, introduction of a clear definition of consent assumes immense importance. The amendment clearly places upon the accused, an obligation to show that an agreement to the sex act in question was obtained, striking at the hostile focus on the survivor’s conduct.
- Another aspect to consent is the age set by the law when it recongnises consent to be valid to the making or the unmaking of an offence. The age below which consent is irrelevant in law sets the benchmark for ‘statutory rape’, or the age below which the person is deemed to lack legal capacity to consent to the act. This serves to protect children from sexual acts, forced or otherwise, to secure them against abuse and consequences when they lack the capacity to negotiate or understand the nature and consequences of their actions. The cut off age, what ever it be is inevitably arbitrary, so its often recommended that the law nuance this cut off, to recognize consent between young persons of proximate age group, so as to not taint them with criminality for actions that are consensual; not forced, abusive or violent. In the course of debates leading to the amendment, women’s groups and indeed, the National Commission for Protection of Child Rights argued for retaining the age of statutory rape at 16 years, as the law did until the recent enactment of the Protection of Children from Sexual Offences Act, in May 2012. The amendment unfortunately retains the age of statutory rape at 18 years, rejecting the proposal to restore it to 16 years that was the law in the past. In doing so, the law collapses all legal minors as children, when the in fact, minors as a category includes infants, children and young persons, thus undermining the ‘best interests’ of young persons, who need to be protected from sexual harm and parental retribution alike. In the context of India, parental and community policing of inter-caste and inter-community relationships and marriages is so rampant, even in relation to adult offspring, that the law cannot afford to be blind to its indirect usage as a tool for retribution as it does now.
- A gradation of different kinds of sexual offences have been introduced to plug the legal vacuum that existed – with nothing in-between rape and the trivial offence of ‘outraging’ the modesty of a woman. New offences such as forced disrobing, stalking, voyeurism and acid attacks have been introduced, each addressing a dangerous trend that is alarmingly, on the rise. Public stripping and parading of women has been a common way of ‘punishing’ transgressions by women, real or perceived, in rural contexts, now increasingly reported in metros too. Acid attacks likewise are on the rise, with devastating and sometimes fatal consequences. Reportedly perpetrated by jilted lovers, they are also a popular threat used by vigilante groups to enforce dictats against women’s dress and mobility. Voyeurism makes punishable the watching, photographing or disseminating images of women in undress or when engaging in private acts. And finally, the persistent following or monitoring of women, physically or electronically, to foster personal interaction despite her disinterest is now punishable under stalking. These new offences plug longstanding gaps in legal protection against sexual intimidation and harm to women.
- Marital rape was criminalized in the unamended penal code only when the couple was ‘judicially’ separated (under a judicial order), not otherwise, for a maximum sentence of 2 years. The law has now expanded criminalization of marital rape to all cases of separation, whether under judicial order or otherwise, so long as the spouses are living separately. The sentence has been increased substantially, with a mandatory minimum of 2 years extendable to 7 years.
- The amendments have strengthened accountability of the police and public servants for acts of omission and commission in respect of sexual offences. Under the amended law, there is a minimum mandatory sentence of 6 months for dereliction of duty by public servants, for neglecting to act as required by the law, or disobeying the law to the detriment of a woman. The amendment also clarifies that no prior sanction is required from the government for prosecuting public servants for sexual offences. These changes provide a strong deterrent against police dereliction, providing tools to hold the police accountable for its actions and inaction. However, the amendment falls short of dispelling the requirement of prior sanction for prosecuting members of the security forces for similar crimes committed, although the Verma Committee recommended this.
- Justice for sexual offences under the law has thus far been limited to punitive redress. The amendment transforms this approach, introducing for the first time the beginnings of reparative justice. The amendments stipulate imposition of fine that may go towards the survivor, as well as compensation for injuries to the survivor from the legal aid board. In addition, it mandates all public and private health facilities to provide immediate free treatment to the victims of sexual violence and acid attack, with penalties for refusal to provide such treatment.
The demands by women’s groups went beyond the present set of gains enacted into law. Likewise, the Verma recommendations were far reaching, requiring institutional and ideological changes that prevent and facilitate the implementation of legislative changes enacted. What sets this moment apart from the three decades of uphill advocacy by women’s groups for law reform advocacy by women’s groups, was the ownership of the cause by a wide cross section of society. From a concern limited to the women’s constituency, the call to end impunity for sexual violence was owned and echoed across progressive groups and constituencies, paving the way for the most consolidated set of reforms witnessed in relation to sexual violence thus far. The Justice Verma Committee recommendations sets out the blue print for other changes that must follow, transforming the agenda from a limited one of law reform to a larger one for prevention and institutional change. Legal transformation is inevitably a slow and contested process, and must plod at its pace. The more challenging aspects for the future relate to implementation, accountability of the law enforcement machinery, and the creation of support services that enable survivors to access and journey through the legal system with dignity and confidence. The gains of this moment are not limited to the its legislative achievements, but lie in the endorsement by the Verma Committee report to women’s rights demands in the period that follows.