The National Crime Records Bureau (NCRB) data shows that cases of sexual offences against children have been on the rise. From 2265 cases in 2001, the number has increased to 5749 in 2008. A Study on Child Abuse undertaken by the Ministry of Women and Child Development in 2007: INDIA 2007, conducted in thirteen States, with a sample size of 12447 children, 2324 young adults and 2449 stakeholders has also revealed that out of 12,447 children interviewed, more than fifty-three percent reported having faced one or more forms of sexual abuse. Over Fifty percent abusers were persons known to the child or in a position of trust and responsibility. Major findings of the study are:
i. 53.22% children reported having faced one or more forms of sexual abuse.
ii. Andhra Pradesh, Assam, Bihar and Delhi reported the highest percentage of sexual abuse among both boys and girls.
iii. 21.90% child respondents reported facing severe forms of sexual abuse and 50.76% other forms of sexual abuse.
iv. Out of the child respondents, 5.69% reported being sexually assaulted.
v. Children on street, children at work and children in institutional care reported the highest incidence of sexual assault.
vi. 50% abuses were by persons known to the child or in a position of trust and responsibility.
vii. Most children did not report the matter to anyone.
The Government proposes to bring a new law to protect children against sexual offences of various types. The draft Bill on Protection of Children from Sexual Offences which has been prepared, regards the best interests and well being of the child as of paramount importance at every stage of the judicial process. It incorporates child friendly procedures for reporting, recording, investigating and trial of offences. The Bill aims to protect the child’s right to privacy and confidentiality; provides for designation of Special Courts for trial of offences and stringent punishment to provide adequate deterrence, while at the same time ensuring adequate penalty commensurate to the gravity of each offence.
The draft Bill on Protection of Children from Sexual Offences is at the stage of inter-ministerial consultation and will be introduced after these are completed and after seeking the approval of the competent authority. Smt. Krishna Tirath, Ministry of State (Independent Charge) for Women and Child Development, gave this information in the Lok Sabha today.
Their statements have to be accepted in toto: Supreme Court
‘Why should the evidence of a woman complaining of rape be viewed with doubt or disbelief?’
‘Improper and undesirable to test her evidence with suspicion, treating her like an accomplice’
NEW DELHI: The Supreme Court has held that in cases of rape, particularly, if the victims are illiterate, their statements have to be accepted in toto without further corroboration for convicting the accused. A Bench of Justice comprising Justice P. Sathasivam and Justice R.M. Lodha said: “Any statement of rape is an extremely humiliating experience for a woman, and until she is a victim of sex crime, she would not blame anyone but the real culprit. “While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her, and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for.” Writing the judgment, Justice Sathasivam, quoting earlier judgments, said: “When a First Information Report is lodged by a lady with regard to the commission of offence like rape, many questions would obviously crop up for consideration before she finally decides to lodge the FIR. “It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only giving it a serious thought, must have decided to lodge the FIR.” Quoting another judgment, the Bench said seeking corroboration of the rape victim’s statement before relying upon the same would amount to adding insult to injury. “Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? Corroborative evidence is not an imperative component of judicial credence in every case of rape.
“It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust, and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice,” the Bench said. In the instant case, two illiterate sisters, working in a quarry, were raped by appellants Santhosh Moolya and Surendra Gowda in Ashwathapura village in Dakshina Kannada, Karnataka. The trial court found the accused guilty and convicted them to undergo seven years rigorous imprisonment, and this was confirmed by the Karnataka High Court. The present appeals are directed against this judgment on grounds that the FIR was registered 42 days after the incident and that it was not safe to rely on the testimony of the victims alone in the absence of further corroboration. Rejecting the contention and dismissing the appeals, the Bench said: “We are satisfied that though there was a delay of 42 days in lodging the complaint, the same was properly explained by the victims and other witnesses. We have noticed that except the victims, no male member is available in their family to help them. “Further, the prosecution witnesses asserted that after committing the rape, the appellants had threatened that they would kill the victims if they informed anyone. There is no reason to disbelieve the statement of the victims and the courts below have rightly accepted their statements.”
The government recently decided to amend the Indian Penal Code (IPC) and replace the word “rape” with “sexual assault’’. The proposal would make the offence of rape gender-neutral. But can a government change the meaning of the word “rape”? Can a man rape a man? Can a woman rape a woman? And finally, unimaginably, can a woman rape a man? Even dictionaries offer gender-specific meanings for rape. So, does that make a nonsense of the amended IPC? Flavia Agnes, Mumbai-based lawyer and activist, says it is certainly far-fetched. “To presume that women can rape men is rather outrageous,” says Agnes. “While women can sexually harass men, they can’t sexually assault them. There have been no such cases anywhere.” In fact, rape is a “deeply gendered construction”, with several social implications for women such as stigma, she adds. One rape case is registered every 54 minutes somewhere in India. Many more incidents go unreported. Take the case of 19-year-old Sulabha Rani* from Uttarakhand’s Chamoli village. In 2004, her uncle took her to Dehradun to work as a domestic help. He sold her to two men who raped her in a moving car. The next morning, she found herself lying half-naked and bruised on a sidewalk. Back with her parents now, and with her uncle absconding, Sulabha reportedly hasn’t been able to leave her bed or utter a word since that day.
Then there is Radha, an Agra college student, who tried to take on a bunch of rowdy goons making lewd remarks about passing girls. One evening, as she returned from college, Radha was raped by the goons, who said they were punishing her for her ‘bravery’.
So, can a woman ever do the same to a man? Agnes says rape is not just a physical assault, but an expression of power and control by men over women. “As we do not live in a gender-neutral society, having a gender-neutral rape law will only make the situation worse for women, as many may get accused of rape,” she says. Legal experts are apprehensive the IPC amendment will open the floodgates for other gender-neutral laws, such as those governing domestic violence, dowry death, cruelty to wives or even maintenance to women after a divorce. But some aspects of the proposed amendment are being welcomed. Sexual assault is to cover crimes such as sodomy, insertion of a foreign object and other offences that are not currently covered by the legal definition of rape. The rape law was amended in 1983 and ever since, women’s groups have campaigned for a law on sexual assault, which would cover issues of incest and non-penetrative child sexual abuse. Author-activist Pinki Virani, who filed a plea for the mercy killing of Aruna Shanbaug, a paralysed and brain-dead Mumbai nurse who was attacked and raped in 1973, says, “The amendment may not help women too much but it will help minor victims. I’m glad boys will be included in the category of victims who can be sexually preyed upon by older men without sodomy being the only criteria of boy-rape.” The provisions can also help in cases such as that of Ruchika Girhotra, who was sexually molested by Haryana DIG, SPS Rathore as a teenager, 19 years ago. Aradhna Gupta, who fought for justice for her dead friend, says this is a commendable move. Speaking to STOI from Sydney, Gupta says: “Now, more culprits can be booked for committing heinous sexual crimes. Had it happened two decades back, Ruchika would have been alive.”
Virani says the amendment raises questions about whether cases pertaining to children can be clubbed with adults. What about incest, arguably more traumatic than a single assault by a total stranger? Agnes says the government must take these complexities into account before amending the law of the land governing rape. *The names of victims have been changed
NEW DELHI: Following reports of 76 children from Assam and Manipur, most of them minor girls, being rescued from “homes” run by missionaries in Tamil Nadu, the Supreme Court on Wednesday ordered a probe into a possible trafficking racket involving tribal children. The Tamil Nadu police, in its affidavit before the SC, said, “Pastor Shaji was arrested at Somanur in Coimbatore district on February 12 and remanded to judicial custody. Effective steps are being taken to nab the absconding accused Rev Paul.” A Bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan accepted amicus curiae Aparna Bhat’s suggestion for a probe into the matter. The National Commission for Protection of Children’s Rights will carry out the probe. Additional solicitor-general Indira Jaising said the TN police had not detailed the facts of the case to the court. “How could these children be taken more than 1,000km away without anyone noticing anything,” Jaising asked.
In this regard Shakti Vahini and Vikalpadhara had approached the National Commission for Protection of Child Rights (NCPCR ) and Ministry of Home Affairs on January 10 , 2010 to investigate and order a CBI enquiry of large scale trafficking of children from North East.
A national consensus should be built on the method to combat child abuse.
We are supposed to be living in times of “transparency”, whatever that hackneyed expression may mean. There are now very few icons. Fewer are the sacred cows. There are no holds barred at all when it comes to probing the lives of public figures and the functioning of hallowed institutions. The Vatican and the Catholic Church of Ireland have in the past few weeks come under separate clinical scrutinies.
Allegations are flying in the media about Pope Benedict XVI and his older brother Georg Ratzinger (85). First is the charge that the Holy Father, as an Archbishop at the Munich diocese, had approved housing for a priest who had sexually abused an 11-year-old boy. Years later, the priest was said to have been given a suspended sentence for child abuse offences. He is possibly still functioning in Bavaria, although he has not come to adverse notice again. As for the Pope’s brother, for 30 years he was associated with a choir near Berlin that had reported many instances of abuse of choir boys.
Although Ratzinger claims the allegation goes back to a period prior to his time at the choir, one Thomas Mayer surfaced suddenly to complain that he had, in fact, been sexually assaulted by older boys in the choir when Ratzinger was in charge. (This is typical of many instances of sexual attacks on children. The victims remain reticent and come up suddenly with charges after a lapse of decades. This raises credibility problems even if a reported assault did happen.)
Close on the heels of the controversy surrounding the Vatican comes a report from Ireland where the Catholic church is embarrassed by revelations that Cardinal Sean Brady had, way back in 1975, forced at least two child victims to take a vow of secrecy about their experience with Father Brendan Smyth. Brady had been directed by his Bishop to probe the happening reported from counties Louth and Cavan. When interviewed, two abused boys confirmed the physical violation but were asked not to share their stories with anyone else.
The findings were passed up the hierarchy, following which Father Smyth’s right to practise as a priest was withdrawn and he was advised to seek psychiatric help. The matter was not taken to the police nor was anything done to monitor the offender’s activities thereafter.
Shockingly, Father Smyth went on to abuse more children. Ironically, the revelations come 35 years after the abominable happening. While the abuse is still actionable by the police, there is a view that administering the oath of secrecy to the victims by Father Brady itself constitutes an offence. The priest, now a Cardinal, has taken the position that his action of 1975 should not be judged by present-day standards of juvenile safety, and that he was satisfied with what he did in deactivating the offending priest.
There are indications that we have not heard the last of what seems to be a ballooning controversy on the role of the clergy in putting an end to juvenile abuses within the church premises.
It is too early to believe or discard these charges before they are investigated in depth. They can, however, cause immense damage to the Vatican and the Irish Catholic church because child abuse is, rightly, now an explosive subject as it involves conduct that cuts at the roots of civilised behaviour. Even a hint of suspicion that an individual had indulged in it or that an institution had connived at a cover-up could lead to acute embarrassment.
The point is that sexual abuse of children is a reality wherever children are taught or made to live in a group under even a semblance of authority. Residential schools and orphanages are especially vulnerable. In India – not exactly known for transparency until the arrival in recent years of the visual media in full strength – there have been far too many such unsavoury episodes for comfort. Institutional abuse of children is rampant, but it seldom comes out in the open.
Recall the recent charge-sheeting of Dutch national William Heum (56), who has been facing trial since 2002 for child molestation. Recently, he was indicted for possession of child pornography. He is accused of having posted prurient material on the Internet in 2005 and is also said to have made a confession to the police, which he now denies. Heum has been in India for three decades and claims that he is a social worker associated with an orphanage in Mahabalipuram.
India is a favourite destination for foreign tourists looking for child sex, and there are several studies that highlight the laxity in procedures that facilitates access to potential victims. Take, for example, the case of Australian businessman Paul Henry Dean, who made India his home in the late 1970s when he disappeared from his native country to begin a new life as a holy man and healer.
After spending the initial years in an ashram in South India, he migrated to Andhra Pradesh and Orissa where he was living among leprosy patients. He also took to paramedical training of the local youth, aided by the slender knowledge that he acquired watching local doctors in action. It was in Titsagarh (Orissa) that he came to adverse notice for sexual contact with young boys, for which he was reported to the police.
In 2001, cases were initiated against him for engaging in unnatural sex and for violations of the Passport Act. It is also known that statements against him were recorded by the police in 2008. Dean has strongly denied all the charges. One does not know the fate of the investigation. The Australian government has also not shown any great enthusiasm to bring him to book because it is more than 30 years since he fled Australia. This case alone would indicate how easy it is to enter our country on specious grounds and remain here to indulge in objectionable activities.
Despite the fact that our child population is more than 400 million, and several studies – including the one conducted by the Government of India in 2007 – point to sexual exploitation of more than 50 per cent of our children, for the police in India, combating sexual assaults against children is of a low priority. Some senior officers have shown significant interest. They cannot, however, make any difference until officers in the lower rungs, such as deputy superintendents and station house officers, are also sensitised sufficiently so that they look out for prowlers like Dean. But then they need strong legislative support. The law is barely adequate to neutralise those who target hapless children, especially those in the lower economic strata who suffer from parental neglect and a poor school ambience.
Unlike countries such as the United Kingdom, we do not have a specific legislation that deals with sexual offences. The proposed expansion of the definition of “rape” in the Indian Penal Code may not address the growing problem of sexual exploitation of children.
It is gratifying that Union Law Minister M. Veerappa Moily has shown commendable interest in drafting a special law to meet the situation. The Law Commission’s 172nd Report and the National Women’s Commission’s draft recommendations are a good guide to drafting the contemplated law. The Supreme Court in its Sakshi ruling of 2004 suggested that major amendments be made to the existing criminal law or a new Act be enacted to deal with sexual violence against children.
Bringing in a new law goes only half the way in tackling the menace that greatly affects the younger generation. It goes without saying that all of us who have a stake in the welfare of our children need to spread the message against predators looking to satiate their reprehensible appetite for children.
We must remember that child victims of sexual assault experience the same level of trauma as rape victims. Unchecked, this evil poses a grave threat to the health of future generations. This is why there is a need to build a national consensus on how to combat it by strengthening the law and the enforcement machinery such as the police. The media can also play a positive role here.
This news appeared in the Indian Express. This is a very important Indicator of the levels of sensitization our Judiciary has on issues related to women and children. If this is the statement of the Chief Justice of India just imagine what might be the situation in the lower Judiciary.
CJI advocates ‘due regard’ for victim’s wish to marry her rapist : INDIAN EXPRESS
Chief Justice of India (CJI) K G Balakrishnan today said that “due regard” should be given to the wishes of a rape victim if she chooses to marry the rapist or have the baby conceived as a result of the crime.“Due regard must be given to their personal autonomy since in some cases the victim may choose to marry the perpetrator or choose to give birth to a child conceived through forced intercourse,” Balakrishnan said. The CJI was addressing the national consultation on access to justice, relief and rehabilitation of rape victims, organised to mark International Women’s Day, which is being observed tomorrow. Several high court judges and judicial officers were present in the audience.
Women’s rights activists were not amused by the CJI’s stand.“His statement is extremely unfortunate,” asked Brinda Karat, general secretary, All India Democratic Women’s Association. “We expect the CJI to be concerned about extremely low conviction rate in rape cases, delay in deciding the case and the fact that victims are more often than not also blamed for the occurrence of the crime. Instead, the CJI chooses to take this line. Is he suggesting that this could be a viable alternative for the victim?”
National Commission for Women (NCW) chairperson Girija Vyas also took exception to the CJI’s statement.
“I don’t agree with his contention,” Vyas said. “If what he has suggested were to happen, it would be an easy way out for the rapists, who would first commit rape and then, if caught, make an offer to marry the victim. For the victim, such a marriage would be like dying every moment. Rapists deserve the strongest possible punishment,” she said.
Union Minister for Women & Child Development, Krishna Tirath, whose Ministry organised the event, reacted cautiously, saying the CJI’s suggestion would have to be read on a case-by-case basis. In his address, Balakrishnan also said that judges, lawyers and social activists should not take an “overtly paternalistic approach” while making decisions for the welfare of rape victims.At the same time, he refused to accept the argument that “high mobility” of women in modern times was one of the reasons for the sharp rise in the number of rapes. “I do not agree with this proposition. Because it is the task of the criminal justice system to prevent and punish the culprits,” he said.
Women’s rights activists pointed out that the CJI’s view flew in the face of a ruling by the Supreme Court, which said that neither a proposal of marriage nor any other settlement between the rapist and his victim could condone the crime.In 2006, the apex court had observed that rape was “a crime against basic human rights” and violative of the victim’s Right to Life.
Respect personal autonomy of rape victims, says K.G. Balakrishnan
Chief Justice of India K.G. Balakrishnan has said “due regard” must be given to the “personal autonomy” of rape victims to decide on whether they should marry the perpetrator or choose to give birth to a child conceived through forced crime. Speaking at a national consultation on “Access to Justice, Relief and Rehabilitation of Rape Victims” here on Sunday, Justice Balakrishnan said judges, lawyers and social activists should also ensure that they do not take an overtly paternalistic approach when they have to make decisions for the welfare of rape victims.
“It is not possible for policy makers and judges to prescribe a ‘one-size-fits-all approach’ and we must make honest efforts to build the institutional capacity needed for the proper rehabilitation of rape victims.” Calling for a robust discussion on the proposed comprehensive “Scheme for Relief and Rehabilitation of Victims of Rape” mooted by the Women and Child Development Ministry, the Chief Justice also said that the Centre’s proposed bill which contemplates the creation of fast-track courts to try sex-related offences, must also keep in mind the interests of the victim, and not merely punish the offenders.
“Adequate attention should also be drawn to suggestions for provision of shelter, counselling services, medical and legal aid. It must be kept in mind that an act of rape or molestation can have long-lasting consequences such as mental trauma, physical disability and frustration of prospects for marriage and employment.” He also referred to the ‘secondary victimisation,’ which a rape victim often has to suffer during the trial of the accused due to inconvenient, probing and often indecent questions by defence counsel.
“There is a very real phenomenon described as ‘secondary victimisation’ wherein the victim of a crime faces additional harassment and humiliation in the course of investigation and trial. Especially when the perpetrators are in a position of power over the victims, there is a strong distrust of the credibility of the investigation itself,” Justice Balakrishnan pointed out. “Some recent cases highlighted in the press have shown how the investigative machinery can often be manipulated to protect influential persons, howsoever reprehensible their crimes may be,” he said. “The investigators, prosecutors and defence counsels must exhibit an appropriate degree of sensitivity to the victims,” he said.
The CJI also highlighted recent changes in law, which provide that the past sexual history of victims must be ignored.
The government takes a step towards speedy trial in cases of sexual offence but stops short of making definitional changes in law.
IN the second week of December, as the country watched the developments in the case against former Haryana Director General of Police S.P.S. Rathore, a host of senior government representatives, including Union Law Minister M. Veerappa Moily, promised to review the laws dealing with crimes against women. Moily’s Ministry announced that it would introduce the Sexual Offences (Special Courts) Bill, aimed at ensuring speedy trials in rape cases and including procedural measures to improve the mechanism of delivery of justice. Home Minister P. Chidambaram declared that the police all over the country should be asked to treat all complaints as first information reports, though it was not clear what purpose such an announcement would serve without consultations with the State governments on the issue, since law and order is a State subject.
More worryingly, however, the Law Ministry’s draft Bill (a copy of which is with Frontline) is not an adequate response to the situation it is meant to address. It is no doubt an important step towards speedy trials of sexual offenders: it stipulates that the trial for any sexual offence shall be concluded as expeditiously as possible, preferably within six months. However, it stops short of making the kind of definitional change, recognising the various forms of sexual assault on women and children, that would make a substantial difference. There is also no reference to an already existing piece of draft legislation, “The Criminal Law Amendment Bill 2002”, painstakingly prepared by women’s organisations and vetted by the National Commission for Women (NCW). Planned as a Bill in 2002, though it never reached that stage, this document dealt with the definitional aspects of sexual assault as well as procedural aspects of securing justice for victims. The Law Ministry did not bother to consult either the Ministry for Women and Child Development, the nodal Ministry dealing with women and children, the NCW or women’s organisations. Veerappa Moily assured a delegation of women’s organisations led by Rajya Sabha member Brinda Karat, who met him, that he would discuss the issue with the related Ministries but ignored the fact that a draft had already been prepared by the women’s groups.
Draft by women’s organisations
The demand for a comprehensive law dealing with sexual assault was first made at least 17 years ago but it gathered momentum in the past decade. The draft by the women’s organisations was initially prepared by former Law Commission member and Supreme Court advocate Kirti Singh; this was then followed by countrywide consultations on the subject, with the NCW taking up the cause. In 2007, a quasi-government report on the magnitude of child sexual abuse further bolstered the demand for a comprehensive law that would cover child sexual abuse.
The government’s decision to respond was at least partly because of the sustained media spotlight on the Rathore molestation case, pressure from sections, including the media, the rising crime graph and efforts by women’s organisations. Yet, it does not incorporate all the changes in the definitional, substantive and procedural laws relating to child sexual abuse (including molestation and rape) and the sexual abuse of women that were demanded by the women’s groups.
These groups, led by the All India Democratic Women’s Association (AIDWA), met Veerappa Moily on January 12. Referring to the 172nd Report of the Law Commission regarding sweeping changes in laws relating to rape, molestation and sexual harassment, they argued that the definition of sexual assault and rape in the Indian Penal Code (IPC) was archaic, restrictive and inadequate.
The organisations, which included the National Federation of Indian Women, the Young Women’s Christian Association of India, the All India Women’s Congress, the Joint Women’s Programme, the Muslim Women’s Forum, the Centre for Women’s Development Studies and the Guild of Service, underscored the immediate need to enlarge the definition of rape to include oral and anal sex. They also pointed out that several forms of sexual abuse, such as incest, stalking and protracted sexual assault, were not even recognised or defined in the IPC.
Moily, according to a member of the delegation, talked more about introducing procedural changes rather than definitional ones. The memorandum pointed out how on several occasions courts had debated on what the expression “outraging the modesty of a woman” meant. A major definitional change would be to replace this expression in Section 354 of the IPC with “unlawful sexual contact”; besides, the women’s groups said, there must be a distinction between the molestation of an adult and that of a child and that the latter should invite more stringent punishment.
Definition of abuse
The fundamental problem is that all kinds of sexual offences barring rape are covered under Section 354. Child abuse involving anal and oral sex is not treated as rape but as molestation. The women’s groups said that “rape” should be redefined to include oral and anal sexual assault and insisted that the punishment in the case of minors, who are often forced or incited to perform sexual acts on adults, should be more stringent.
The Sexual Offences (Special Courts) Bill, 2010, does talk about amendments to the IPC, proposing the insertion of Section 376E defining unlawful sexual contact. But it does not touch the definition of rape under Section 375. The Criminal Law Amendment Bill, 2002, had suggested the full substitution of the existing Section 375 of the IPC, replacing the existing definition with that of a comprehensive one of sexual assault that meant, among other things, not only penile penetration but the introduction, to any extent, by a man of an object or part of the body into the vagina, or anus or urethra of a woman or a child. This also included the manipulation of any part of the body of a child so as to cause penetration of the vagina, anus or urethra. The document also specified stringent punishment for rape, including incestual rape and rape by a person in a position of trust and authority.
Separate punishments were recommended for public servants and policemen and for people running remand homes and jails and hospitals for committing sexual assault on pregnant women, persons with mental or physical disability or on persons under 16. The recommended provision covered gang rape, persistent sexual assault and assault causing disfigurement or grievous bodily harm to the victim.
The recommended punishment in all the categories was “not less than ten years but which may be for life and also liable to fine”. Under Section 376, the punishment for rape is not less than seven years, extendable to ten years or for life unless the victim is the man’s own wife and not under 12 years of age, in which case the punishment is only for two years. The existing law also gives the right to courts to impose a sentence of imprisonment for a term of less than seven years “for adequate and special reasons to be mentioned in the judgment”.
The document prepared by the women’s groups suggested removing Section 376A and introduced a new Section, 376D, defining punishment for unlawful sexual contact. This covered various kinds of unlawful sexual contact, including those with a minor, unlike in the government’s draft. Also, it defined a minor as under the age of 16, instead of under 12 as defined in the existing section. It used the word “minor”, while the government’s draft uses the term “young person”.
The document of the women’s groups defined unlawful sexual contact and suggested the punishment for this. It said if “any man with a sexual purpose touches, directly or indirectly with a part of the body or with an object, any part of the body of a woman, without the consent of such a woman, he shall be punished with simple imprisonment for a term which may extend to three years or with fine or with both. The government draft exempts from punishment men for such non-consensual sexual contact with their wives. Its definition of unlawful sexual contact (Section 376E) says: “Whoever, with sexual intent, touches directly or indirectly, with a part of the body or with an object, any part of another person, not being the spouse of such a person, without the consent of the such other person, shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.”
Even the quantum of punishment differs in the two documents: that of the women’s groups recommend punishment up to five years for unlawful sexual contact with a minor as compared with three years in the government one.
“The government has not taken molestation and its effects, seriously enough,” said Kirti Singh, who is also the legal convener of the AIDWA. The piecemeal approach of the government while looking at laws governing sexual assault has disappointed women’s groups.
Changes in Indian Evidence Act
The government’s draft proposes amendments to the Indian Evidence Act, 1872, borrowing, almost literally, from the draft of the women’s groups, but stops short of adopting all its suggestions. For instance, it proposes the insertion of Section 53A in the Act – an amendment that could have been made long ago – with respect to the issue of consent and the character of the victim: “In a prosecution for an offence under Section 376, 376A, 376B, 376C, 376D and 376E or for attempt to commit such an offence, where the question of consent is in issue, evidence of the character of the victim or of her previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”
But it is silent on another suggestion made by the women’s groups that Section 114A of the Indian Evidence Act be modified on the issue of consent. Their draft suggested that if a person alleged to have been sexually assaulted has stated that it was not with consent, courts were to presume that it was so. The government draft has not incorporated this suggestion, though it has accepted another addition to the Indian Evidence Act. – “where the question of consent is in issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to her general immoral character, or as to her previous sexual experience with any person for providing such consent or the quality of consent”.
Changes in law relating to police investigation
The women’s groups have welcomed the procedural amendments in the Code of Criminal Procedure (Amendment) Act, 2008, relating to police investigation, medical examination of the victim, videotaping of the statement of a young person and separation of the child victim and the accused in the courtroom.
But this Act was notified as late as December 2009. It stipulates that offences under Section 376 and Sections 376A to 376D of the IPC should be tried, “as far as practicable”, by courts presided over by women judges and lays down the procedure in the case of arrest of a woman, stipulating that an arrested person shall be examined immediately by a medical officer.
It also provides for the recording of a rape victim’s statement at her residence and, “as far as practicable”, by a woman police officer in the presence of the victim’s parents or guardian, or a social worker. There is also a provision enabling the recording of statements/confessions by audio-video electronic means. The Act says, too, that the trial of offences under Sections 376 to 376D, IPC, shall, “as far as possible”, be completed within two months.
The women’s groups have also suggested other procedural amendments such as immediate medical attention and counselling for victims of sexual abuse, particularly children, in view of the trauma they undergo. Expert witnesses such as child psychologists and doctors, they said, should be allowed to depose on the victims’ behalf and children should not be made to give statements repeatedly to the police, magistrates and courts.