People Demand Tougher Laws Against Sexual Assault
By Bobby Ramakant *
Civil society groups and citizens have submitted a comprehensive list of recommendations today (2nd January 2013) to government-appointed committee that is currently seeking input on how to reform laws against sexual assault. These recommendations emerged at an open consultation held in Lucknow on 28th December 2012 to seek input for Justice JS Verma Committee that is currently seeking input till 5th January 2013 to strengthen laws to respond to cases of sexual violence. This consultation was organized jointly by Socialist Party, Lok Rajniti Manch, Humsafar – Support Centre for Women, Asha Parivar, Citizen News Service (CNS) and National Alliance of People’s Movements (NAPM).
Recommendations to Justice JS Verma Committee:
(Not in any particular priority)
• There was a strong consensus that Criminal Law (Amendment) Bill 2012 that is currently in Parliament proceedings must not be passed in its current form because of its many serious loopholes and lacuna. For example, definition of ‘rape’ should not be limited to penetrative sexual intercourse. Sexual violation of a person’s dignity is not just about penetrative sex and therefore definition of rape must include other serious forms of sexual assaults and violence.
• Definition of ‘consent’ in Criminal Law (Amendment) Bill 2012 presently implies that if there is no evidence that the person being sexually violated resisted it will be taken for granted as if the person gave consent for sexual act of violence to take place. It is important to note that all forms of sexual violence might not necessarily end up with physical injury or harm that can be proven in court of law. Also the notion of ‘consent’ is between ‘equals’ and in circumstances under which sexual violence takes place, it is often not a matter of ‘choice’ for those being violated.
• In its current form, the Bill does not recognise the structural and graded nature of sexual assault, based on concepts of hurt, harm, injury, humiliation and degradation. The Bill also does not use well-established categories of sexual assault, aggravated sexual assault and sexual offences.
• The Bill does not mention sexual assault by security forces as a specific category of aggravated sexual assault. We strongly recommend the inclusion of perpetration of sexual assault by security forces under Sec 376(2). Security forces enjoy immunity under existing laws and can be tried under court martial of Armed Forces but not under this law. Our experience shows how the State has used varied forms of sexual assault as a means to suppress civil resistance in states of Jammu and Kashmir, Chhattisgarh and North-Eastern states. The security forces should not be given immunity for sexual violence under our laws.
• Rape is also a severe form of violence and another form of violence (death sentence) cannot be an effective deterrent. We believe that violence cannot be nipped by violence. We believe death penalty for perpetrators of sexual violence is neither a deterrent nor an effective or ethical response. We need to evolve punishments that act as true deterrents to the very large number of men who commit these crimes.
• The Bill in its current form does not address various forms of sexual violence that takes place against ‘Kothis’ (feminized males) and transgender people. It is important to extend the Bill to include these populations so that sexual violence against them can also be addressed in the judiciary under the same legal sections as applicable to those who perpetrate violence against women.
• When children or minors are subjected to graded forms of sexual violence then ‘unnatural acts’ are not represented in IPC Section 377 despite the extreme nature of violence. Also medical examination is seldom done of such minors. So the laws should be amended so that those who perpetrate sexual violence against minors must be tried under them.
• If a child or a minor or a girl or women or transgender or Kothi reports sexual violence then case must be registered and prompt action taken to bring those responsible to books, and to protect those who complained. CWOs (Child Welfare Officers) should be engaged in such cases too.
• Police needs to be sensitized at all levels. Police has undue powers. There are so many experiences where girls, women and transgender people who went to lodge police complaint of sexual violence against them were humiliated and/ or sexually abused by the vanguards themselves! CCTV camera must be installed in police stations and those police personnel who misbehave by any means with those who come to lodge complaint be acted upon.
• Judiciary needs to be sensitized on gender issues. It is important to have supportive and sensitive lawyers and judges to impart due justice in such matters with dignity.
• Medical examination of those sexually abused is lawfully to be done by medical professionals of government hospitals. Medical examination must be done by a female doctor only. But most of the times government doctors are insensitive to these issues. For example, if a doctor finds woman’s hymen to be broken then the report might say: ‘sexually habitual’ – which has serious moral and judgmental overtones. The role of medical examination is not to ascertain whether a person is sexually active or not, rather to ascertain whether any nature of sexual violence has taken place. Similarly medical doctors look for physical injury or harm – if there is no injury or harm then it does not necessarily means rape has not taken place. All rapes and other extreme forms of sexual violence may not necessarily end up in physical injury or harm. Medical professionals must be gender sensitive and trained adequately to play their vital role in bringing those responsible for sexual violence to books.
• Fast track courts must be setup to expedite judicial process for cases of all forms of sexual violence so that justice can be done within six months. In-camera proceedings must take place. Appeal for enhancement of IPC Sections should be heard and acted upon as appropriate in legal proceedings at the earliest.
• Protecting survivors of sexual violence is the solemn responsibility of the State. Rehabilitating them to a life of dignity, with livelihood options for example among other such measures is clearly the duty of the State.
• An independent enforcement agency should be formed to monitor cases of sexual violence against minors, girls, women, and transgender people among others.
• Review the Security system of so called VIPs because in democracy, more emphasis should be on general security of the public at large and not just a few individuals
• Helpline for Women in all states of the country should be started
• Anti-sexual harassment committees in all institutes and workplace should be formed according to the Supreme Court directives in Vishakha case and other directives should be implemented
• Introduce safe and frequent public transport system with GPRS and well-lit roads and bus-stops
• Persons with a confirmed record of assault on women cannot stand for public office or contest elections
• Strict implementation of liquor prohibition policy where it is there and to develop people's opinion against Liquor and drugs
• Include women, transgender, and other human rights issues in IAS, other bureaucracies, IPS, and judicial training curriculum
• In case of a woman, if ‘161 statement’ is not taken by a woman police official, then there should be provision of punishment. For statement 161 woman police official should not be in uniform and should go to the victim’s house, instead of victim being called to the police station. Statement should be recorded in audio and video and the language of the police should be sensitive towards the victim.
• Statement 164 should be taken by a woman magistrate. If woman magistrate is not available then temporary arrangement should be made from the other courts. This statement should also be recorded in audio and video.
• Verbal abuses with reference to women or their sexual organs, either in real life or in films, magazines or other forms of media, should be declared as a cognizable offence and there should be provision of punishment for the same.
• Any song, music, advertisement or comedy or other such programmes that uses obscene comments or gags on women which is against the dignity of a woman, should be kept in the category of an offence. If such cases are found, case should be registered against those responsible including the chairperson of the censor board. Cheap entertainment affects the youth in a big way and deepens the gender based stereotypes.
• Police patrolling should be increased after 6 pm in the evening and number of women’s buses and female conductors and other bus staff should also be increased.
• Self-defense training should be made mandatory for girls in all the schools. Government should provide separate budget for the same.
• All the police stations – urban and rural - should be made online. Person registering complaint must get a number which must be connected with district police station and regional DGP office. This will help in keeping track of all the cases and updating on how many cases were sorted out or are remaining in a certain area. This will help in keeping records intact as sometime documents get lost in police stations.
• Cases of violence against women in border areas (which cannot be postponed) should not be entangled in border disputes and case must be registered immediate for action and case transfer can be arranged later. Police should be punished in case they fail to do so.
• Sex work should be decriminalized and people involved in this profession must be issued a card and under the labour Act government should provide facilities to sex workers.
• Indian evidence act must be reviewed.
• Police and judicial reforms Bills must be passed without delay.