RAPES AND THEIR CONTROL IN INDIA

Every 29 minutes a rape occurs somewhere in India

Although this page was meant to share defence-related article this issue was in my mind for a long time I wanted to address this thing so here I am with the article on the topic which has ashamed me as a human being many times.

News of girls, women, children and woman raped has become a common scene since a very long time. After every case of 'sexual assault' out there, we Indians have formulated a standard operating procedure i.e to rake out placards, put posts on social media platforms demand immediate justice and then we go in a silent mood waiting for the next case to come up. These days things are more ugly with the name of the victim out in media and people sharing her photos and videos. These things show that we have failed ourselves as humans and are vultures waiting for someone to die to get a new prey for more likes on our posts.

While writing this article I have certain things clear in my mind which I want to go out in the society, Outrage and protests nowadays are a common scene but we don't know the direction in which this outrage should be, as people protesting are not clear about what they are demanding.

So let's begin with before that a basic structure of the post. Here I will discuss

1. the definition of rape according to society, according to groups of people and according to the Indian constitution

2. the types and causes of rape

3. the legal remedies available to the victims

4. problems associated with the Indian legal Structure

5. way forward

RAPES 'SEXUAL ASSAULT' :-

Justice Arjit Pasayat:

"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.

India is a country where women hold high status in the society but still we do not have strict measures to protect them. We have various laws strictly framed to protect their life but seemed to have many loopholes. Rape is the most heinous offence committed on a woman. It is worse than murder as it leaves a person feeling the most violated. A rape victim is often left with the feeling that a part of them has been torn apart. Because the feeling is still with them, the victim may have a sense that the crime is continuously occurring. To use another person's body and ignore the soul that resides within is the most egregious crime that one person can commit against another.

The dictionary meaning of the word rape is "ravishing or violation of a woman".

Definition for feminists :

Rape at the present stage is the infringement of women right and liberty. Rape is, for many feminist, the ultimate expression of the patriarchal order, a crime that epitomizes women’s oppressed status by proclaiming in the loudest possible voice, the most degrading truth about women that a hostile world has to offer.

United Nations definitions:

RAPE

Penetration – even if slightly – of any body part of a person who does not consent with a sexual organ and/or the invasion of the genital or anal opening of a person who does not consent with any object or body part.

Sexual assault

Sexual activity with another person who does not consent. It is a violation of bodily integrity and sexual autonomy and is broader than narrower conceptions of “rape”, especially because (a) it may be committed by other means than force or violence, and (b) it does not necessarily entail penetration.

DEFINITION ACCORDING TO INDIAN CONSTITUTION:-

In India, it is defined as intentional and unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are‘sexual intercourse with a woman’ and the absence of consent(for detailed definition click on this link https://indiankanoon.org/doc/623254/ ). Section 375 made it clear that intercourse would account to rape only during the absence of the woman’s consent. This provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause in which marital rape was not considered rape.

Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both. Law Commission released its 172nd Report on the Review of Rape Laws, in 2000 which has certain recommendations related to the definition of rape and punishments for this crime.

These definitions and punishments have evolved with time because of interpretations of courts at different levels and certain amendments. It is expedient to change the human perspective and provide a new dimension to the definition of rape keeping mind the current scenario.

TYPES AND CAUSES OF RAPE:-

To understand the causes of rape we need to first understand the types of rape and then understanding the causes will be a bit easier

Generally, rape may be classified into the following;

• a. Statutory Rape or, child Rape: Sexual intercourse with a female who is below the statutory age of consent. This is also known as child rape.

• b. Stranger Rape: Where the assailant was unknown to the victim.

• c. Acquaintance Rape: The victim knows her attacker, although he is not a close friend or family member. In other words, it is a rape where the victim and the assailant knew each other casually.

• d. Intimate Rape: Where the persons concerned were in a relationship or even married.

• e. Date Rape: The victim is dating the person who rapes her.

• f. Multiple Rape or Gang rape: The victim is raped by more than one man.

• g. Marital Rape: The victim is raped by her husband.

• h. Custodial Rape: Where a person commits sexual intercourse with a woman who is under his custody.

Research on the causes of violence against women has consisted of two lines of inquiry:

• Examination of the characteristics that influence the behaviour of offenders and

• Consideration of whether some women have a heightened vulnerability to victimization.

The majority of reports reveal that female youth are a vulnerable group for rape victimization. According to experts, only 10% of rapes are reported, and the conviction rate for rape cases is 24.2%. According to the National Crime Record Bureau 2013 annual report, 24,923 rape cases were reported across India in 2012. Out of these, 24,470 were committed by someone known to the victim (98% of the cases).

The problem involves diverse dimensions including:

• Treating Women as Inferior: Our society is still finding it difficult to accept even the basics of gender equality. We still have very high rates of child marriage, teenage pregnancy, and domestic violence including marital rape. The notion that women are less important is deeply rooted in the minds of common people. This proves to be endemic because it leads to male superiority in the sense that women are there to serve men. So, the need is to bring down the idea of gender equality from the unheard articles of the Constitution to homes, schools, workplaces and everyday life because like everything else, change starts at the grass-root level.

• Low Representation of Women: Research shows that having women in government can lead to more and better laws that safeguard women’s well-being. India’s population is 48% female. But women hold just 12% seats in the national legislature. In short, women are nowhere to be seen. The key to making people accept the first point is to increase the representation of women in every sphere of life. They have been suppressed since centuries, so maybe it’s the right time to give them a hand while they try their hardest to rise.

• The Lack of Gender Education: Indians generally are not comfortable talking about sexuality, reproductive rights, menstruation or sexual desire – anywhere – whether it is our home or our classroom or the workplace. Some small changes in adolescent education and even earlier in primary school might address the root cause of the problem. Our society is not comfortable with sex-education in the schools and this causes a major problem as teens in their growing age is in search of knowledge and the stigma of society turns them towards unverified and illogical sources and they get misinformed. The biggest trap is pornography in the case of Indian kids as they feel there is a reality which is being portrayed in the videos and this causes serious mental harm.

• Ignoring the Relationship between Poverty and Violence: Whether it’s the Delhi rape case of 2012 or the recent ones, they seem to exhibit a pattern. This is a very critical issue to address the relationship between predatory sexual violence and urban destitution — an enormous, unsolved challenge in India. Being exposed to violence right from birth does not promote a sense of the integrity or the delicacy of the human body or respect for laws and moral values. It generates despair, anger, fury, a sense of desperate social rejection. This feeling of being rejected by the society perhaps leads to the breakdown in a sense of shared values and understanding of basic code of conduct. Although it is no excuse for the violence, maybe the brutalisation we are witnessing is a manifestation of the radical failure of current engagement of different strata of society. This issue demands an urgent call to action.

• The Stigma and Blame Attached to Rape: After every rape case, there is an emphasis on the damage done to female dignity rather than the horrific violence, as if vaginal purity were the main casualty.

• Victim-Blaming:- the culture of victim-blaming is equally disappointing. the tendency to question a woman’s clothes and conduct, suggesting she ‘invited’ or did not ‘resist’ rape, questioning the timing of a girl too roam outside and all, they are also one of the causes of violence.

• The Difficult Path to Justice: There are just too many laws in India and too little justice. The Verma committee formed after the Delhi rape case of 2012 recommended that rather than focusing on introducing new laws, the focus must be on implementation and sensitivity on the ground. There are a lot many loopholes in the pre-existing laws and they should be addressed as it delays the delivery of justice.

The Myths associated with rapes:- ( Excerpts from an article by Ms Vageshwari Deswal)

Rapists have all sorts of excuses and justifications for their acts. The reasons quoted are so diverse that it is nearly herculean to generalize. Rapes are committed by religious leaders, teachers, guardians, father, brother, relatives, neighbours, friends, acquaintances or even strangers. In this patriarchal and gendered world, rape is a stigmatized crime wherein aspersions are cast on the victim instead of the accused. This emboldens menfolk who bank heavily on a woman’s silence to preserve her honour. It is also very easy to put the blame on the woman for bringing out the beast in a man. There is a justification that she should be punished for arousing him. Afterall if there were no women, who would men rape? So maybe it is the very existence of woman that needs to be blamed for turning our holier-than-thou men into rapists.

One important issue raised time and again is related to the size of a woman’s dress. Do the dresses provoke? Are women clad in sarees and burqas not raped? We have instances where men sexually abuse animals. Should we clothe animals too? Another oft-cited reason is makeup. Rapists allege that women apply heavy makeup especially lipstick to lure men. How do you explain rape on minors, infants, old and aged women, women suffering from unsoundness of mind, women in comma or those hospitalized with severe ailments? What could they have done to catch a rapist’s fancy? Earlier men kept sex slaves, now they hire escort girls. Prostitution is the world’s oldest profession. Sugar daddies- ‘I sponsor you’ is a common western concept fast gaining in popularity in our sub-continent. Wife swapping is a notorious fact. People rape their daughters, sisters and sometimes even mothers. What causes such extreme depravity?

The pathology is an obsession for sex.

Another reason is the desire to control. Rape is a power crime. Narcissistic tendencies are common in celebrities, especially among actors and sportspersons. Their popularity among females causes them to mistake themselves as demigods whom women are dying to please in bed. Men like to boast about their sexual encounters equating them with conquests. Sex requires a man to be aggressive, he feels superior and in control. It is all about the need to control and assert power. Rapes are committed with impunity during wars. Husbands rape their wives and seek to justify it as a means of punishment to her or to put her in her place or simply to vent out their frustrations. Spurned suitors, jilted lovers and all those who believe the woman to be theirs cannot take no for an answer and force sex to punish or avenge.  People rape their girlfriends, live-in partners, friends and acquaintances. There is patriarchy fueled male desire to dominate. Men are scared of a woman’s sexuality, so that needs to be suppressed. She evokes the need in them, thus there is a dislike for the passive yet undeniable power that she wields over them.

There are rape myths- No means yes; a lady never says yes; women like to be taken by force; Women who drink are an easy lay; outgoing women like to experiment in all areas including sex, etc. By perpetuating such myths women have been deprived of their voice or agency to exercise her choice. Most of the time the accused are not even aware that what they have done amounts to rape. They admit to forced sex but refuse to accept it as an act of rape. Then, there are date rapes. Boyfriends who don’t know when to stop because they fail to comprehend the concept of consent. In some tribal areas, there are customary practices of taking women by force. Lack of safety measures also plays a part. In villages, women have to venture out at night as there are no toilet facilities at home. This puts them at risk.

Below is a survey report which brings out some important facts to our eyes:-

The rape myths were considered as truth by almost all participants. The prevalence of rape myths was higher among college-going males than females. Rape myths were deeply rooted among the students, but their attitude toward rape was uncertain. The students considered rape as a serious offence and felt that strong punishment against rapists in the form of the death penalty should be given.

Fifty-three per cent of the female and 30% of the male responders disagreed that “rapists are emotionally disturbed and not responsible for their actions.” The strong sexual desire of guys, drunkenness, and girl's clothes were reported by 50%, 40%, and 33% of respondents, respectively, to be factors that provoke rape.

While exploring their perception toward current penalties under for rape, around 95% female and 92% male participants felt that 7-year imprisonment for rape is not enough. Almost 54% of females and 36% of males suggest the death penalty as punishment.

LEGAL REMEDIES AVAILABLE TO VICTIMS:-

The nationwide public outcry, in 2012, following the December 16 gang rape and murder in Delhi, led to the passing of the Criminal Law (Amendment) Act in 2013 which widened the definition of rape and made punishment more stringent.

Parliament made the amendments on the recommendation of the Justice J.S. Verma Committee, which was constituted to re-look the criminal laws in the country and recommend changes.

1. The 2013 Act, which came into effect on April 2, 2013, increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause the death of the victim or leaves her in a vegetative state.

2. It also created new offences, such as the use of criminal force on a woman with intent to disrobe, voyeurism and stalking.

3. The punishment for gang rape was increased to 20 years to life imprisonment from the earlier 10 years to life imprisonment.

4. Earlier, there was no specific provision in law for offences such as the use of unwelcome physical contact, words or gestures, demand or request for sexual favours, showing pornography against the will of a woman or making sexual remarks. But, the 2013 Act clearly defined these offences and allocated punishment. Similarly, stalking was made punishable with up to three years in jail. The offence of acid attack was increased to 10 years of imprisonment.

In January 2018, an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir was abducted, raped and murdered by a group of men. The news of the shocking act led to nationwide protests and calls for harsher punishment.

• This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put death penalty as a possible punishment for rape of a girl under 12 years; the minimum punishment is 20 years in jail.

• Another new section was also inserted in the IPC to specifically deal with rape on a girl below 16 years. The provision made the offence punishable with a minimum imprisonment of 20 years which may extend to imprisonment for life.

• The minimum jail term for rape, which has remained unchanged since the introduction of the IPC in 1860, was increased from seven to 10 years.

ARE THE CURRENT LAWS ENOUGH?

I have seen people demanding strict punishments for crimes involving rapes from chopping the culprits, to hanging them as soon as possible and people like me demand even more sadistic punishments, such as tejab wali drip and encounters. But if these things are included will this seriously bring a change?

The clear answer is NOOOOOOO!!!!!!!!!

People are suggesting that fear is a necessary factor to control crime but this is not true at ground level in many cases. Let's take an example, Pakistan and Bangladesh have strict punishment such as hanging and strict imprisonment but are the rapes controlled there, No instead there has been an increase in the cases.

The punishment of rape in Saudi Arab and other middle east countries is according to the Islamic Laws but and is much strict but do you know a fact, "to convict a man for rape charges in these countries it is mandatory to either get a confession from the rapist or a witness account from four adult males."

A case was very famous in Saudi Arabia "Girl of Qatif" a girl was raped by seven men in a car. Her case came to hearing in 2006 trial she was sentenced a punishment of 90 lashes for being alone in a car to a man she didn't know. !!!!!!!!!!!!!!!!!!!!!!!!!!!!

Looking at the above cases it's very clear that strict laws and strict punishments are not enough to stop problems like rape and sexual assault.

Differing views on the death penalty as punishment for rape

While examining punishment for the offence of rape, the Justice Verma Committee (2013) deliberated on whether the death penalty should be awarded.  The Committee acknowledged that though rape was a violent crime, the punishment should be proportionate, as it was possible to rehabilitate the survivor.  The Committee supported enhanced punishment extending up to life imprisonment for rape, but not the death penalty.  The Law Commission (2015) observed that in cases related to rape and murder of minor boys and girls, courts have differed in awarding death sentence.  In March 2013, Parliament passed the Criminal Law (Amendment) Act, 2013 to amend the IPC to allow death penalty only in rape cases where the accompanying brutality leads to death or leaves the victim in a persistent vegetative state, and in cases of repeat offenders. 

On the other hand, it has been argued that imposing the death penalty for rape crimes could deter individuals from committing the offence and therefore help reduce its incidence.  Further, awarding death penalty allows for retributive justice for the victims.  Over the years, various court judgements have narrowed the application of the death penalty to the ‘rarest of rare’ cases and issued criteria to determine whether the accused deserves a death sentence. This implies that courts can award death sentence for rape only in exceptional circumstances, which include where the reformation and rehabilitation of the convict are not possible.

Justice J.S Verma Committee gave a suggestion that we don't need new laws, we just need proper implementation of the existing laws. The problem lies in the lack of conviction of the accused. In India, there is a serious under-reporting of cases related to female violence and cases like sexual assault have directly been linked to women chastity which again complicates the issue.

WAY FORWARD IN STOPPING SUCH CASES:-

Going through a number of reports and case studies, I came to a fact that this problem does not have a universal solution. There is a need to tackle many things at different levels which will simplify the issue and further lead to the resolution of the problem.

The resolution needs to happen at a basic level from the family and hierarchically to society and then to the national level.

We have to address the problems in the Indian system of upbringing where the girls are treated discriminatorily and the boys are given a dominion status, as this creates a sense of inequality and the problem begins from here, A boy who has not learnt how to respect her sisters will never respect any girl in the society and this is the harsh reality.

Central Government must ensure proper sex education in the schools and proper control on the material being served to the students through online platforms. At the level of society, we are settings examples of inhumanity with each passing day, we need to have a serious check on this, If a girl has to go through something inhumane of this level, her society rather than giving strength to her start victim-blaming with slangs like "arre uski to izzat chali gyi; are wo thi hi buri, kpde dekhe hai kaisi pehnti hai wo, ladko see dosti this uski and whatnot " which further breaks the victim and even fades her chances of getting justice, for reference will take the example of cases happened and jurisdictions by the honourable courts on them: the State of Punjab vs/. Gurmit Singh case, In this case, the Honourable Supreme court had to advise the lower courts that even if the victim girl is shown to be habitual to sex the court should not describe her of low character and this should not affect the process of justice.

Now the concern is raised that these are long term measures and their successful implementation will take a lot of time, what should be the immediate measure, as I have said earlier that the problems in dealing with rapes in our country are the poor conviction rate and slow justice machinery. The solution also lies here. How ironical is it that for the environment-related issue we have a tribunal which has its own time limit to solve cases of environmental disputes, But when it comes to women safety there is no such tribunal although there is a national commission for women it has its own limitations.

National Tribunal For Women's Safety:-

• The need of the hour is to formulate a parallel system of justice for cases related to women's safety and crimes such as sexual assaults.

• The tribunal needs to be independent of the influence of all the political parties as they all are safe hubs of many rapists and criminals.

• The members of the Central tribunal should be picked up by the Supreme court and should include eminent jurists, doctors, psychologists and an advisor from the police system.

• The tribunal should have its branches in all the districts of the country and the nominations at a lower level should be done by the respective state high courts.

• The tribunal should be vested with powers such as issuing an arrest warrant, suspension orders, dismissal orders, and the decision of the tribunal should be considered at par with the judicial system and should have overriding powers to all state organisations.

• The tribunal should be time-bound to give its decision in the minimum possible time and a maximum time of 3 months.

• Any dispute regarding the decision of the tribunal should be resolved in the Honourable Supreme court of India.

Social support to the victims:-

It should be the responsibility of the state government to ensure proper social support to the rape victim and her family. To ensure proper social security following points can be followed:-

1. Proper psychological support and psychiatrist to the victim so that she can easily get out of the stigma.

2. Ensuring acceptance of the victim in the society and person spreading a negative image of the victim should be dealt with strictly as per law.

3. The family of the victim should be provided proper security throughout the legal process as we have seen cases of rape survivors being attacked by the close links of the accused person ( Memories of such attacks by Kuldeep sengar on the victim's family might be fresh in your brain).

4. If a person comes out to report a crime, she should be the one to be believed primarily and no interrogation about the case should be done to her by male officers, She should be interrogated only in the presence of a lady officer and along with proper psychological support.

5. People spreading photos and the name of the victim should be dealt with strictly as per supreme court guidelines.

6. Media trials of the victim should be completely stopped and strict regulations on fake news being spread by the media and social media platforms, any person found guilty should be punished according to the law.

7. Cases related to marital rape should be treated equally as an offence just as any physical violence by a husband against the wife is treated.

To Ensure timely Conviction:-

There is a need to modernise the methods of evidence collection and interrogation.

Techniques like DNA fingerprinting, Swab collection, semen sample collections, hair sample collection, blood collection, bloodstain examination, sputum, sweat, fingernail clippings examinations etc should be encouraged.

The investigative agency should be provided with a limited time to collect all the necessary evidence and file the necessary evidence in the hearing authority.

"At the same time we also need to ensure that misuse of these benefits should not be done by anyone and if a person is found to be falsely alleging someone, imprisonment and heavy fines should be kept ready as a punishment for the fraud and the person being falsely accused should be provided with compensation by the government."

A MESSAGE TO THE SOCIETY

Did you shared the photo of the victim incident on social media platforms and are demanding justice for her?

did you disclosed the name of the victim on social media platforms and are demanding justice for her?

Did you just check the caste, religion and name of the victim and culprit before demanding justice for her?

Do you believe that these heinous crimes occur with a specific group of people and the culprits belong to a specific group?

Is your hatred against these crimes filtered by certain lenses?

Then this message is for you idiots:-

You are the blot on our society and you are the venom spewing snakes who need to be controlled. How ironic is that you say that terrorism has no religion and then cry your heart out on an incident and intentionally insert the caste and name of victim and culprits to prove your point of hatred.

This act of you proves that demanding justice was not your aim, you are out there with an aim to malign a community and to divide the society.

Sexual assaults are such crimes in which culprits are from mixed backgrounds and so are the victims, what do you want ? naming every culprit (then you will cry hate crime)

We always think why are these crimes not in control, the primary reason is in us ..... because of our selective outrage and populist demands, to make some change the outrage needs to be uniform for all the cases and the demands need to be clear. The severity of rape should not decide the level of our outrage, because even a single inappropriate touch causes the same level of emotional breakdown.

Maintaining a high level of decorum is very necessary for all the boys out there, because the thoughts which you have today for a girl, someone might be having the same level of thoughts ill or good for your own sister.

Now coming to those idiots who are continuously seen sharing half baked information

and disclosing the name and photos of the victims for sympathy support and greed of likes and shares. What do you think this brings justice to her family. The clear answer is no. It just gives them a wound so deep that they no amount of support can fill up. A family lost its daughter and you fanatics are busy in grabbing likes. Have shame on yourself you fools ...... This is a serious crime and even the supreme court has warned against doing so.

"SO PLEASE GROW UP AS A COOPERATIVE SOCIETY HELPING EACH OTHER AND THESE INCIDENTS DON'T NEED YOUR POLITICAL OR OTHER SUCH LENSES TO COME IN BETWEEN, THEY NEED CRITICISMS FROM ALL THE SIDES AND GROUPS OF PEOPLE."

"KEEP AWAY FROM SPREADING HALF BAKED INFORMATIONS"