Draft bill proposes only 2 yrs jail for molestation, 7 for eve-teasing
Though the home ministry’s draft replaces the traditional notion of “rape” with the wider concept of “sexual assault”, the act of penetration remains an essential ingredient of this offence, which is punishable with a maximum sentence of life sentence. So, the proposed reordering of the hierarchy of sexual offences is as follows: first, the non-penetration sexual assault punishable with a maximum term of two years; second, the non-contact sexual insult punishable with a maximum term of seven years; and finally, the sexual assault involving penetration punishable with a maximum term of life.
The incongruity of prescribing greater penalty for verbal assault of a sexual nature under Section 509 than physical assault of a sexual nature under Section 354 has however been mitigated in the context of underaged victims. For, the draft bill introduces a provision dealing with “sexual abuse of minor”, irrespective of whether there is any penetration or not. It prescribes a maximum sentence of 10 years, which is five times greater the cap provided in the existing age-neutral molestation provision.
Significantly, the proposed rape law also increases the consent age from 16 to 18 years, which is also the minimum age of marriage for girls. This means that sex with a person below 18 will be regarded as statutory rape even if it is consensual. Given the general relaxation of sexual norms in the society, this could become a source of harassment. Further, the proposed provision dealing with child sexual abuse, Section 376C, will apply to both female and male victims.
There is a needless restriction on activating Section 376C. The draft bill introduces a caveat saying that the court cannot take cognizance of an offence under that provision except on a police report or a complaint made by the child victim or its close relatives. The exclusion of other well wishers like teachers, neighbours or friends from lodging a complaint seems unwarranted, given the heroic role played by Ruchika’s friend Aradhana Gupta and her parents in the prolonged fight for justice. It also shows that India remains in denial on the empirical evidence from across the world that children face the biggest threat of abuse from family members.
The home ministry has also failed to take this opportunity to do away with the anachronism of marital rape. The draft bill says: “Sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not sexual assault.” It is time India, taking cue from advanced democracies, phased out this blatant manifestation of patriarchy. One aspect in which India has sought to catch up with its western counterparts is in the definition of sexual assault involving penetration as it looks beyond the traditional penile-vaginal scenario. The draft bill penalizes penetration of not just the vagina but also the anus, urethra or mouth of the victim. And the penetration could be with any part of the offender’s body or any object manipulated by him.
The down side of course is, the wider the ambit of a provider, the greater the scope for abuse. The existing definition limiting rape to penile-vaginal penetration has the advantage of demanding greater scope for rigour in corroborative evidence. If forcible insertion of fingers in the mouth of a woman is going to be regarded as penetration, then rape or sexual assault cases are likely to be dependent on the word of the victim more than ever before.