Saturday, 31 January 2009

Protecting and Prosecuting Crime against Women

A Russian lawyer and a journalist supporting his cause, both attempting to bring justice to a murdered rape victim, were gunned down three kilometers from an apex institution of the nation – the Kremlin. Their cause was admirable and their sacrifice noble. The irony of their death place is garish. However, there seem to be more important tasks that the governments world over are attending to, while the givers of life perish at the hands of the immoral and the unlawful.

One would hope, if not expect, that the situation would be different in a nation that has had amongst the longest serving female prime ministers in the world; has a current female head of state and even has a plethora of goddesses worshipped by a throng of staunch male devotees. Statistics, however, beg to differ. India ranks 113th out of 130 nations which were surveyed for gender parity
[1]. Rape is the fastest growing crime in the country; faster than murder, robbery and even kidnapping. In fact it is estimated that two women in India are raped every sixty minutes[2]. And it is even more appalling to know that 25% of the reported offenses were committed against minors.

There are two distinct reasons for the growth in these crimes – one is the changing attitude and perception of the masses and the second is related to the law of the land. Given that people and especially women are slowly de-linking the offense from social stigma, there are more of these crimes being reported. Thus it might not be entirely correct to interpret the statistics in isolation. Even if one disregards the supposed growth in crime against women, the mere suggestion of two rapes an hour is horrifying. This is where the law comes into picture and it is saddening to understand that the Indian legal system still does not fully acknowledge the physical, mental and physiological damage caused by such gruesome acts.

Section 375 of the Indian Penal Code (IPC) defines rape as “intentional, unlawful sexual intercourse with a woman without her consent”. Questions that spring to mind immediately are (i) how does the law define forced oral sex and sodomy and (ii) is forced foreplay or engaging in all but penetration with a minor any less offensive. Those conversant with the law would like to state that while Section 375 might be narrow, Section 354 of the IPC does address the acts of forced oral sex, sodomy and even penetration by foreign objects. Further Section 377 of the IPC deals with ‘carnal intercourse against the order of nature’. However, the trouble is that neither of these two sections, acknowledge that violation of the female mind and body other than forced intercourse also tantamount to rape. This leaves a lot of room for perpetrators and their lawyers to get away with lesser than justified punishment

For the culprit to be convicted, evidence is paramount. In the case of a rape, the primary sources of evidence are the physical examination and statement of the victim. Yet again, Indian legal system seems to fail the victim. Section 155 (4) of the Evidence Act requires that the victim be cross examined in the presence of the accused and that a detail of her past sexual history be noted as well. This not only is harsh and senseless but also fundamentally flawed. Research shows that rape victims suffer from acute and extensive psychological trauma during and after the incident. This leads to anxiety, concern for safety and development of mistrust becoming a part of the victim’s life
[4]. With this backdrop, it is not far fetched to say that any cross examination in the presence of the one responsible for the trauma will be inaccurate and can potentially lead to further psychological damage. The law which is supposed to protect and preserve, in this one instance fails its purpose!

When it comes to minors the situation is direr. While most other countries in the world have separate laws dealing with child sexual abuse, Indian laws treat these crimes under the same Sections 375, 354 and 377. All the concession that the Indian legal system grants to minors is in terms of (i) Section 293 ‘sale, hire, distribution or circulation of obscene objects of literature to children’, (ii) Section 294 ‘obscene acts or utterances in public places’ or (iii) Section 511 ‘intent to rape’. This leaves the minors more vulnerable than adults who can comprehend the situation and voice their emotions. Stunned and puzzled children, even after expressing their experience, do not find redresses in the courts of law. This status quo is distressing in the knowledge that in the city of Mumbai alone, 60% of rape victims are girls between the ages of three and sixteen

The Indian Penal Code was introduced in 1860 and the first amendments to laws relating to rape and sexual assault were effected in 1983. In 2004 Sakshi (an Indian NGO) filed a public interest litigation seeking an amendment to the classification of various sexual offences, other than penile/vaginal penetration, as lesser offenses under the Indian Penal Code. The Apex court did not rule in favour of the social welfare organisation. Post that in 2005 that there were minor changes proposed via the Criminal Law Amendment Bill addressing Sections 354, 375, 377 and 509. However, these changes are limited to expediting trials and protecting evidence in case witnesses turn hostile.

I am finally left wondering - if the Russian lawyer and journalist were in India, would their quest to “defend the law against abuse by the state” even see a start?

[1] World Economic Forum
[2] National Crime Records Bureau
[3] Under Section 375, the punishment is seven years and upwards; Sections 354 and 377 are treated as other criminal offences and hence the prescribed punishment is not severe.
[4] See for further details
[5] The data is slightly outdated : WIN News 1999


Anonymous said...

Its a Shame to the entire civilized world that crime against women and children are committed. It is totally unacceptable to perform violent acts against women and children. I keep wondering, in a land were women goddesses are worshiped and most people talk about the great history where women were so revered, why are crimes against women increasing so rapidly?

Tanushree Bagrodia said...

I am as baffled as most others trying to find an answer to the question. My rationale thought process leads to three reasons:
1. Supressed feelings being vented given the lack of open discussion on the topic of sex
2. The feeling of being in power and displaying it amply in a society which is suffering from over population, unnecessary competition and low standards of living
3. Inability of women to fight ofr themselves and being damsels in distress

Anonymous said...

I think more than just an open discussion on sex, its actually a healthy discussion about sex. Most of these people who commit crimes against women are pervs. At the same time, not just women, even if a group of 5 men were attacked by 40 men, things would be ugly. The basic fracture or failure is in human values being imparted as part of the education system and social upbringing, where people should learn to coexist and not resort to such hooliganism.

Tanushree Bagrodia said...

You are spot on when you say that it is not just an open discussion but a healthy discussion that is warranted. I would also agree that there is an erosion of vlaues that has been setting in the Indian society and the world at large. However, I think the value system has also eroded because on an empty stomach it is difficult to follow the right ideals. The struggle in an over crowded society aggravates every situation. Not that it justifies violence but definitely drives it.

Anonymous said...

Now that we are aware of the perils, what are the possible solutions? Who, What, When, How could this change be created.

Tanushree Bagrodia said...

Being a woman, my thoughts could be biased and radical. Any thoughts that you would like to share?

Anonymous said...

There are typically two ways, top-down approach or bottom up, just like in an investment process. The interesting people, I have had conversations with, have suggested to me that bottom-up is the best way to go and you have to start at the grass roots level. I still am toying with that idea. Once I wrap my head around that, it would be possible to for me to find answers for other questions. On a lighter note, for a change, India could use a good ethical dictator who does not make decisions on self interest. What do you think ?

Tanushree Bagrodia said...

Ethical dictator?? Can that exist? I am not sure! Someone who wants his will to prevail would then have some vested interests right? I think democracy is the best way, however, we need to improve the remuneration in the public sector to ensure that qualified professionals consider that as a career option.

Anonymous said...

We are what we repeatedly do. Excellence, then, is not an act, but a habit. -- Aristotle.

So, I believe there exists an ethical dictator in the universe of subjects in India.

I was hinting at an ethical dictator on a rather lighter note.