The legal structure is failing rape victims
Policy
Image Source: livemint.com
On 14th September, a 19 year old girl in Hathras, Uttar Pradesh was assaulted by four upper-caste men. She succumbed to her injuries on Tuesday in a hospital in Delhi. The girl was allegedly gang-raped and strangled with her own dupatta. She suffered multiple fractures, paralysis and a deep gash in her tongue. The 4 attackers have been jailed, and will now be charged with murder.
In the latest developments, the girl’s body was forcibly cremated by the police late night on Tuesday.
The Criminal Law Act
Rape of women and minor children is an offence under the Indian Penal Code (IPC) 1860 and the Protection of Children from Sexual Offences Act (POCSO) 2012.
The Criminal Law (Amendment) Act of 2018 states the following:
Minimum punishment for rape is ten years*, increased from seven years as an amendment to the IPC.
Rape and gang rape of girls below the age of 12 years will carry punishment of imprisonment for 20 years, extendable to life imprisonment or death.
Rape of girls below the age of 16 years punishable with imprisonment of minimum 20 years.
*The minimum punishment was increased from 7 years to 10years for the first time since 1860.
History of Amendments to the Act
1860:
‘Rape’ as a clearly defined offence was first introduced in the Indian Penal Code in 1860.
The definition of rape included sex under blackmail or threat of violence.
Sexual acts with a girl under 15 years of age was considered rape.
1972: The Mathura custodial rape case
Absence of consent, if claimed by the victim, was to be considered.
Further, disclosing the identity of the victim was made punishable.
2013: The Nirbhaya gang rape case of Delhi
It allowed death penalty if the victim was left in a vegetative state.
The punishment for gang rape was increased from 10 to 20 years.
Moreover, the 2013 Act clearly defined acts of contact, teasing, gestures and words as offences.
2018: The Kathua Minor rape case
The abduction and rape of an 8-year old girl in Jammu and Kashmir led to further amendments in the Act, which made the laws against rape of minors more stringent, and shaped the Act as it looks currently.
Issues with the Act
Marital Rape is still not considered a crime: India is one of 36 countries in the world where marital rape is not a crime. Exception to the Section 375 of the IPC exempts unwilling sexual intercourse with a wife of over 15 years.
The Act is not gender neutral: The term ‘victim’ is only defined for a female, and the perpetrator of the offence is defined as a ‘man’.
The Act is not sexuality neutral: Rape of a female by a female is not considered an offence.
What can we do about it?
From a policy level: Fasttrack all registered rape cases with the judiciary and the law enforcement agencies to have a mandate of delivering justice within 365 days (if that doesn’t happen, they’ll need to provide a justification for the same)
What can individuals do?: Calling it out on social media - increases pressure on the government authorities. The death penalty to the nirbhaya case convicts was a function of this. It always creates a safer environment where it’s made clear that such heinous tasks won’t be tolerated.
Long term solution: Equality is the long term solution. Toxic patriarchy contributes to these cases and hence, there has to be a cultural change at the grassroot level. It’s only when families will look forward to raising daughters, educating them and treating them like they treat their sons - will this problem get solved.
All amendments to the Criminal Act have been made after a particularly violent and abhorrent case of rape has come into the picture. In 2018, one rape was reported every 15 minutes in India. How many more such cases does India have to hear about, while those who are under-privileged and the powerless continue to face the worse end of the stick?