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Legislative and Judicial Approach towards Law of Rape

About the Author

Mr. Sharathraj P.A.
Research Scholar, Department of Studies in Law,
University of Mysore, Mysore
sharathrajlaw@gmail.com

Introduction:

The offences against women, young girls some of whom are even tender aged girls are on rampant increase in this country where women are worshipped as Goddess of wealth, learning, purity or purifier, strength or power or destroyer of all evils, as mother, as creator and so on. The best part of the creation belongs to woman, because the nature itself is female.  There is basic need to improve human conduct and behavior so as to make the female folks refuse to feel secure and less inferior. Any holes in the security umbrella have to be plugged. There has to be a feeling that enforcement of law is not an ‘idle thinking’ and that the protective guards are not merely on the books.

Women have been the recipients of violence since time immemorial. Being the weaker of the human species, they have been the target of aggression  ofmen. Even the periods of social transformation have not been easy for them, wherein all forms of atrocities, whether rape, molestation, slavery or trafficking have been perpetrated upon them.

The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is, therefore, forcible seizure or the ravishment of a woman without her consent, by force, feat, fear or fraud. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. It is the ultimate violation of the self.[i] The Supreme Court of India has aptly described it as ‘deathless shame and the gravest crime against human dignity’. [ii]Sexual violence, apart from being a dehumanizing act, is also an unlawful intrusion of the sanctity of a female. Rape is not merely a physical assault, but is destructive of the whole personality of the victim. It shatters the entire social fabric, destroys the poise of the milieu and ruins the harmony of the atmosphere.

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The Indian judiciary has shown a mixed trend over the years. While the period immediately after independence, up to the seventies witnessed a conservative and narrow minded judicial system, the late eighties and nineties have seen the emergence of the judicial activism which reached its highest in Saakshi vs. Union of India[iii]. Nevertheless, instances of injustice being heaped on the victim have continued to persist.

Special note  may be made on the Nandan Kanan rape case of Orissa or Raju’s case[iv] of the nineties, where a pregnant woman was raped by three NCC cadets while her husband was held hostage. The Supreme Court interpreted   it as a case of consensual sexual intercourse where the consent purportedly was given by the husband of the victim since she was not his ‘legally wedded first wife’. The court also stressed on the point that she was a midwife and therefore experienced andeven the strongest man could not ever dare to rape her. Ridiculous it may seem, but the truth stands out harsh and naked.

 Raju vs. State of Karnataka[v] was another instance of glaring disregard for human rights of the victim. Here, the lady was a nurse who while travelling, was befriended by two youths who agreed to take her safely to the place destined. Since it was evening and they had to take another bus, she was taken to a lodge where in the same room they put up for the night. She was thereafter raped by these two men, despite her protest and resistance, which medical evidence and oral evidence of the police constable, staying in the next room, confirmed. Yet the Sessions court as well as the Supreme Court took a light note on the facts, stating that: the prosecutrix had voluntarily allowed the accused persons to have a merry time and to have sexual intercourse with her. The prosecutrix herself caused inducement to the accused who was a young man and only on such inducement and under a grave provocation he had lost the mental frame and in a fit of passion which was very natural in that age committed the offence of rape. Surprisingly, the court invented the theory of provocation because of young age and uncontrolled youthful passion and imposed a sentence of three years on the accused.

At this juncture, however, it would be unjust if the victim centric approach of the court is not stressed upon.

The jurisprudential foundations of victim justice perspective have gained importance only in the recent past. The Indian criminal justice system is not victim oriented but accused oriented.  Under the Code of Criminal Procedure 1973, the accused is provided with all possible help. A number of constitutional protections are also available to an accused under Articles 20, 21 and 22 of the Constitution of India 1950;[vi] but, unfortunately, very few legal provisions exist in our criminal law and Constitution to provide succor to the victim. In the public mind, the interests of the offender seem to have greater attention than the interests of the victims. Hence, a strong wind in the form of victimology is blowing in the area of criminology, the focus of which is placed on restitution or compensation to victims and their dependants.

Decisions of the Supreme Court have had a remarkable impact on victim justice movement. An increased sensitivity towards the plight of the victims is particularly noticeable in the land mark case of State of Punjab vs. Gurmit Singh[vii]. This case raised a very pertinent question, why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement upon which the conviction of the accused is based. The evidence of a victim of sexual assault stands at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness, in the sense, that he or she is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, notwithstanding the absence of corroboration.

Justice Dr.A.S.Anand and Saghir Ahmad made some revolutionary and ground breaking observations:

  1. Delay in lodging FIR is not material when properly explained.
  2. Testimony of the victim in cases of sexual assault is vital and unless there are compelling reasons which necessitates seeking corroboration of her statement, the court should find no difficulty in convicting the accused on her testimony alone.
  3. Trial of sexual offences should be in camera and invariably by lady judges, wherever applicable.
  4. The court must share responsibility and restrain from making loose observations about the character of the prosecutrix.
  5. The court is under an obligation to ensure that the prosecutrix is not unnecessarily harassed and humiliated in cross examination in case of rape trials.

In 2004, the Supreme Court expressed concern over the plight of child victims of sexual assault, who often, have to describe their experiences of assault in court. It has a tremendous effect on the psyche of the child, and her physical and mental well being. The court accordingly prescribed the following guidelines:[viii]

  1. A screen or some such arrangements may be made where the victim or witness do not see the body or face of the accused.
  2. The questions put in cross examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing.
  3. The victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

Compensation to victims

The judiciary has, on many occasions, while convicting the accused of rape, ordered compensation to be paid to the hapless victim. The necessity of payment of compensation has been the concern of the United Nations as well. The Seventh United Nations Congress on Prevention of Crime and Treatment of Offenders came out with a Declaration of Basic Principles of Justice of victims of Crime and Abuse of Power, which was later adopted by the UN General Assembly. In the Declaration the UN defined the ‘Victims of Crime’ as follows:

  1. Victims means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power.
  2. A person may be considered a victim, under this declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term ‘victim’ also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
  3. The provisions contained herein shall be applicable to all, without distinction of any kind, such race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin and disability.

The basic principles enjoin upon the offenders or third parties responsible for their behavior to make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights. It enjoins upon the state to endeavor to provide financial compensation to:

  1. Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;
  2. The family, in particular, dependants of persons who have died or have become physically or mentally incapacitated as a result of such victimization. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm. Furthermore, victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community based and indigenous means.

In the line with these core guidelines, the Indian judiciary has laid down the following broad parameters in assisting the victims of rape in the Delhi Domestic Working Women’s Forum vs. Union of India:[ix]

  1. The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well acquainted with the criminal justice system. The role of the victim’s advocate would not only to be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court, but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represents her till the end of the case.
  2. Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
  3. The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
  4. A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
  5. The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that the victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court was sought or obtained.
  6. In all rape cases anonymity of the victim must be maintained, as far as possible.
  7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss, for example some are too traumatized to continue in employment.
  8. Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board, whether or not, a conviction has taken place. The board will take into account, pain, suffering and shocks as well as loss of earnings due to pregnancy and the expenses of child birth, if this occurred as a result of rape.

However sadly enough, not much has been done by the egislature on this front. It has been left solely to the discretion of the courts to award compensation in individual cases to the victims. There has also been some disparity in this regard with some courts awarding huge amounts as compensation while others not awarding any or little amounts.

Violence against women International Strides

The laws of rape have undergone vast changes all over the globe. Countries, whether Common Law or civil, have attempted to strengthen its provisions so as to afford the highest level of protection to the hapless victims of this crime. Thus, in some places, the word ‘rape’ has been substituted with ‘sexual assault’ or ‘sexual coercion’ whilein  others it has been made gender neutral or the element of ‘consent’ has been done away with, or the marital rape has been recognized. Several international developments have taken place over the years with regard to violence against women.

The Convention on the Elimination of All Forms of Discrimination against Women 1979, guarantees women equal rights with men in all spheres of life, including education, employment, health care, suffrage, nationality and marriage.

The World Conference on Human Rights, Vienna, 1993, affirmed that women’s human rights are a fundamental part of all human rights. The Declaration, for the first time, asserted that women’s human rights must be protected, not only in courts, prisons and other areas of public life, but also in their homes. The 1993 UN Declaration on the Elimination of Violence against Women for the first time provided a definition of violence, and included psychological violence in the definition.

The international conference on Population and Development Cairo, 1994 affirmed that women’s rights are an integral part of all human rights. It stressed that ‘population and development programmes are most effective when steps have simultaneously been taken to improve the status of women’.[1] Women Empowerment was the central theme of the conference. The recommended actions for Governments included prohibiting the trafficking of women and children, promoting discussions on the need to protect women from violence through education and establishing preventive measures and rehabilitation programs for victims of violence.

The UN Fourth World Conference on Women, Beijing, 1995, recognized that: ‘all Governments, irrespective of their political, economic and cultural systems are responsible for the promotion and protection of women’s human rights’. This document also specifically declared that violence against women is one of the 12 critical areas of concern and is an obstacle to the achievement of women’s human rights.

Section 106(q) states that countries should: integrate mental health services into primary health care systems or other appropriate levels, develop supportive programs and train primary health workers to recognize and care for girls and women of all ages who have experienced any form of violence, especially domestic violence, sexual abuse or other abuse resulting from armed and non armed conflict.’[x]

Thus, recognition of human rights of women has been the core element of all international conferences and conventions. Women are entitled to a free, peaceful and dignified existence, devoid of violence or abuse. The countries of the world have accordingly designed laws to curb violence against women.

Punishment for rape in different countries- a comparison

Germany

Chapter 13 of the German Criminal Code[xi] deals with ‘Crimes against sexual self determination’

Section 174 deals with sexual abuse of wards- whoever commits sexual acts on a person under 14 years of age or allows them to be committed on himself by the child, shall be punishable with imprisonment from six months to ten years and in less serious cases with imprisonment for not more than five years or a fine.

Section 177 deals with Sexual Coercion; Rape-

Whoever coerces another person with force, by threat of imminent danger to life or limb or by exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator’s influence, to suffer the commission of sexual acts of the perpetrator or a third person on himself or to commit them on the perpetrator or a third person, shall be punishable with imprisonment for not less than one year.

Section 178, sexual coercion and rape resulting in death- if the perpetrator through sexual coercion or rape at least recklessly causes the death of the victim, then the punishment shall be imprisonment for life or for not less than ten years.

Australia

In Australia, the Criminal Code Act 1995, deals with the offence of rape in the following manner:

Section 268.14 Crime against humanity-Rape- a person commits an offence if: the perpetrator sexually penetrates another person without the consent of that person and the perpetrators knows of, or is reckless as to, the lack of consent; and the perpetrator’s conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population will be punished with imprisonment for 25 years.

China

Chapter IV of the Criminal Law of the People’s Republic of China[xii] deals with ‘Crimes of Infringing upon the Rights of the Person and the Democratic Rights of Citizens’.

Article 236 of the chapter lays down that:

Whoever, by violence, coercion or other means, rapes a woman, is to be sentenced to not less than three years and not more than ten years of fixed term imprisonment.

Whoever has sexual relations with a girl under the age of 14 is to be deemed to have committed rape and is to be given a heavier punishment.

Whoever rapes a woman or has sexual relations with a girl involving one of the following circumstances is to be sentenced to not less than ten years of fixed term imprisonment, life imprisonment or death:

  • Rape a woman or have sexual relations with a girl and when the circumstances are odious;
  • Rape several women or have sexual relations with several girls;
  • Rape a woman in a public place and in the public;
  • Rape a woman in turn with another or more persons;
  • Cause the victim serious injury, death, or other serious consequences.

Conclusion:

The above sections shows that an offence against women is taken very lightly by just imposing imprisonment for a term ranging from three to ten years and death only in China that too in rare cases. All history attests that man has subjugated woman, , to be instrumental in promoting his comfort. He has done all he could do to debase and enslave her mind and now he looks triumphantly on the ruin he has wrought, and says the being he has thus injured is his inferior. Rape on the whole should be considered as a serious offence against humanity not just against a woman. Any person who is guilty of rape should be punished with death penalty. When death is the punishment for rape there will be fear among the people who would perhaps think hundred times before raping a woman. Further, no reform can be successful, unless it is accepted by the people at large. The social attitude towards rape and its victims must change.  To achieve this goal, social workers and organizations must make sincere, intensive efforts and organize educative programs, mass awareness camps and advertisements to change the social values. It should be remembered that it is not the sole task of one sector of the society, but of every individual, to cooperate with the criminal justice system, to protest against rape. Everyone must bear the moral responsibility of raising theirvoices against the occurrence of these inhumanincidents and support their ill fated victims in all possible ways, so as to establish a society where womanhood is respected, with equal concern and sensitivity.

References:

[1] Footnote Required

[i] Dr. Dipa Dube,Rape Laws in India(LexisNexis Butterworths,New Delhi 2008) p.1

[ii] Bodhisattwa Gautam v Subhra Chakraborty AIR 1996 SC 22

[iii] AIR 2004 SC 3566

[iv] Pratap Mishra v State of Orissa AIR 1977 SC 1307

[v] AIR 1994 SC 222

[vi] Justice Palok Basu,law relating to the protection of Human Rights, First Edition(Modern Law Publication) 2002

[vii] AIR 1996 SC 1393

[viii] AIR 2004 SC 3566

[ix] (1995) 1 SCC 14

[x] https://www.unfpa.org/intercenter/violence/intro.htm/(Accessed on 20 April 2013 11pm

[xi] Promulgated on 13 November 1998, Federal Law Gazette I,p945,p3322(Translated)

[xii] Adopted by the second session of the Fifth national People’s Congress on 1 jul 1979 and amended by the Fifth Session of the Eight national People’s Congress on 14th March 1997

Bibliography

  1. Dipa Dube,Rape Laws in India(LexisNexis Butterworths,New Delhi 2008)
  2. S.K.Mukherjee,Law Relating to Sexual Harassment and Sexual Offences(kamal Publishers2010)
  3. Aileen McColgan,Women under the law-The false promise of human rights(Pearson Edition Limited 2000)
  4. KDewan,Laws Relating to offences Against Women(Asisan Law House 3rd Revised edition 2009)
  5. Justice Palok Basu,law relating to the protection of Human Rights, First Edition(Modern Law Publication 2002)
  6. Kanta Rehman,Human Rights and the Deprived 1st edition(Commonwealth Publishers 2002)
  7. Vinod Sharma, Human Rights Violation- A Global Phenomenon(APH publishing Corporation 2002)
  8. K.Krishna Iyer,Human rights in India(Eastern Law House 1999)

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July 19, 2016

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