Defining assault

An AIDWA rally in Hyderabad demanding justice to a woman who was allegedly raped by her father-inlaw. A file picture.-MOHAMMED YOUSUF

THE draft Criminal Law (Amendment) Bill, 2010, which seeks to amend the law in the Indian Penal Code (IPC) pertaining to rape and sexual assault, has found support among women's groups that have been, for more than three decades, campaigning for a comprehensive piece of legislation dealing with crimes against women and children. Yet, there are some areas, such as recognising the offence of marital rape and prescribing punishment for the same, that have not been covered. As such, sexual intercourse of any nature by a man with his wife, the wife not being under 18 years of age, does not become sexual assault. The Bill also prescribes lesser punishment for a man who commits sexual assault on his wife who is living separately. Women's groups have demanded the deletion of the provision that makes this distinction in punishment for sexual assault for separated women.

Broadly speaking, the draft Bill is a step in the right direction, coming as it does after decades of deliberations among women's organisations, including the National Commission for Women (NCW), and the tabling of the 172nd report of the Law Commission (Review of Rape Laws) in 2000. The process began in the early 1980s. It gathered momentum with the constitution of the NCW. Kirti Singh, a former member of the Law Commission, was appointed as the convener of the 11-member Committee for Redrafting Sexual Assault Law constituted by the NCW. The committee initiated the process of crafting a comprehensive law on sexual assault.

The Law Commission did not take cognisance of the need for a review on its own. It was only after Sakshi, a non-governmental organisation focussing on violence against women, petitioned the Supreme Court in 1997 for definitional changes regarding Section 375 of the IPC that the Commission was requested to examine the issues and the feasibility of making recommendations for amendments to the IPC. The NCW, the All India Democratic Women's Association (AIDWA) and the Interventions for Support Healing and Awareness (IFSHA) gave their suggestions to the Law Commission. All these organisations, along with the NCW subcommittee, were deeply involved in the process right from the 1990s. It was after discussions with these organisations that the Law Commission recommended changes to widen the scope of the offence in Section 375, making it gender neutral.

There is little doubt that the present draft legislation could have emerged several years ago and could have been enacted as well, when the issue of broadening the definition of sexual assault was first raised by women's groups. It is also clear that had it not been for the case of S.P.S. Rathore, a high-ranking police officer who was accused of molesting a minor who later committed suicide, the present Central government would not have taken much interest in the matter. The fact that there was no law to deal with molestation of a minor, leave alone sexual assault of various kinds on children, and that the punishment for molestation was the same for an adult and a minor was highlighted in the media by the women's groups. It is another matter that even under the existing law, securing the maximum punishment (for molestation) of two years imprisonment for a convict remains an uphill task.

The draft Bill has been formulated by a high-powered committee under the chairmanship of the Home Secretary to examine issues relating to a review of the rape laws. It also includes changes in the Indian Evidence Act and the Criminal Procedure Code (CrPC). For the first time, it defines sexual assault as an offence even in those circumstances where consent is supposed to have been obtained. It widens the gamut of sexual assault committed by people in positions of authority, private as well as public, and prescribes enhanced punishment, which may include imprisonment for life as well. This covers institutions such as hospitals, remand homes or any place of custody. The Bill also provides for enhanced punishment for a term not less than 10 years for gang rape; sexual assault on pregnant or mentally or physically disabled women; and maiming, disfiguring or endangering the life of a woman while committing sexual assault.

Some positive aspects relating to procedures include recording of offences, as far as possible, by a woman police officer; substitution of the term sexual intercourse with sexual assault in the Cr.PC; and recording of evidence of a person under 18 years of age, and who has been assaulted, in such a manner that the accused has the right to cross-examine but will not confront the victim; and substitution of rape with sexual assault. However, it does not specify the method of cross-examination in order to ensure that the victim is not harassed and victimised further.

Another important amendment suggested in the Indian Evidence Act is on the issue of consent. The Bill says that in a prosecution for sexual assault under Section 376 of the IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the person alleged to have been sexually assaulted, and if the person states during examination in the court that consent was absent, the court shall presume that there was no consent. Additionally, where consent is under question, cross-examining the victim on character issues or previous sexual experience for proving consent or the quality of consent will not be allowed. The two above sections in the Indian Evidence Act are major departures from the existing law.

The Union Home Ministry invited comments to the Bill until May 15. Seven women's organisations, including AIDWA, the All India Women's Conference, the Young Women's Christian Association, the Joint Women's Programme, Guild of Service, the Muslim Women's Forum and the All India Dalit Mahila Adhikaar Manch have welcomed the draft, including the conceptual shift in redefining rape, but expressed strong reservations about some other aspects. They feel the draft Bill falls short of reflecting the realities faced by victims of sexual assault and, therefore, is not comprehensive.

The objectionsSome of their objections include

1. That the law relating to molestation of women has not been touched by the draft Bill; 2. that the Bill exempts marital rape as an offence; 3. that a distinction between consent and passiveness needs to be made and consent should be understood as nothing less than unequivocal voluntary agreement by a person to engage in sexual activity; 4. that consensual sex between the ages of 16 and 18 should not come under the purview of statutory rape provided that the accused person is not more than five years older than the victim (the rationale behind this is that a lot of consensual sex does take place between the ages of 16 and 18 and to book young men for statutory rape in such instances would amount to injustice); 5. that sexual assault and penetrative sexual assault on a child generally and in a custodial circumstance (by a policeman or a guardian) should be awarded more severe punishment than in other cases; 6. that the Bill fails to include sexual assault by personnel of the armed forces or the paramilitary under punishment for aggravated sexual assault; and 7. it fails to include penetrative and other forms of sexual assault committed during communal violence under the aggravated category.

The draft fails to make a distinction between penetration by objects and penetration by the sexual organ of a man and does not treat as unlawful touching of a minor by a guardian or a person in authority as an aggravated form of molestation. It has also not defined unlawful sexual touch of an adult woman.

The women's groups are also critical of the amendments to the Cr.PC relating to sexual abuse of a minor where the offence is said to be cognisable only if the complainant is the victim or anyone related to the victim or a public officer. In this context, they have said that Section 198 B should be deleted, which says that no court shall take cognisance of an offence punishable under sub-section(2) or sub-section(3) of IPC Section 376 (relating to sexual abuse of a young person), except upon a police report of facts which constitute such offence, or upon a complaint made by the person, aggrieved by the offence, by his father, mother, brother, sister or by his father's or mother's brother or sister or by any other person related to him by blood or adoption, if so permitted by the court.

Several other omissions in the Bill include not changing the definition of sexual harassment given in IPC Section 509, including stalking as a separate crime, and making a child view pornography a distinct offence.

The draft Bill has received a lot of feedback, and it is hoped that the government does not push through the draft without another round of consultation. This is also not to say that it should delay the process indefinitely. It should make further amendments, if necessary, and proceed in a manner that is sensitive to the very constituency whose rights the Bill seeks to protect.