Gender Violence in India Report 2014: Rape

The World Health Organization defines rape as ‘physically forced or otherwise coerced penetration … of the vulva or anus, using a penis, other body parts or an object’.[1] Rape is a subset of sexual assault, which is defined as any sexual act (including but not limited to penetration or intercourse) committed using coercion or without the victim’s consent.[2] People of any gender can be victims of rape and sexual assault, but the majority of victims are women. The Sage Publications Multimedia Encyclopedia of Women in Today’s World notes that most legal definitions of rape involve sexual penetration through force and without consent. The Sage entry, however, also acknowledges that there remains ‘widespread disagreement regarding the meanings of “penetration,” “force,” and “consent”’; definitions and application of the laws on rape vary from country to country, and even from jurisdiction to jurisdiction within a country.[3] Rape victims may thus be left to seek justice amid confusing laws, or be faced with sceptical law enforcement personnel who doubt their claims and experiences.

Another issue related to rape and sexual assault is that of ‘victim blaming’: holding victims of sexual assault responsible for the rape or assault because of their attire, appearance or actions. In India, there have been several documented cases of victim-blaming by politicians, spiritual leaders, lawyers, police officers, and even women’s commission members.[4] A pervasive victim-blaming culture can deter women from reporting rapes, can cause them to fear further victimisation at the hands of law enforcement, and can make it difficult to successfully prosecute those rapes that are reported.

Feminists and advocates combating violence against women have argued that acts previously not recognized as rape should in fact be included in legal definitions. For instance, many countries have included an exception for marital rape, either previously or in current laws, stating that intercourse between a husband and wife cannot be deemed rape regardless of whether one party did not consent.[5] Advocates have also argued against the notion that ‘in order for an encounter to count as rape, the victim must have displayed “utmost” (or even any) physical resistance.[6] Nevertheless, ambiguity remains both in many legal definitions of rape and in enforcement of those laws.

The problem of rape is often compounded by widespread misunderstandings about the nature and incidence of rape and sexual assault. Many believe, for instance, that perpetrators are usually strangers to their victims, that women must have been ‘asking for it’ by behaving promiscuously or going out alone at night, or that lack of overt physical resistance implies consent.[7] In fact, many if not the majority of perpetrators are known to their victims; rapes can occur at any time of day in virtually any context, not just when a woman is along at night; and victims may be unable to resist or choose not to struggle out of fear of even greater violence.

The issue of rape in India has garnered much greater national and international attention in recent years, in large part due to the 2012 Delhi gang rape case that spurred mass protests and an international outcry.

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2012 Delhi Gang Rape: A Case Study

On the evening of December 16, 2012, a 23-year-old physiotherapist and her male friend caught a bus home after seeing a movie in a Delhi suburb. The six men on the bus, including the bus driver, began to taunt the pair for being out late together. The man, to protect his friend, tried to stop the teasing, upon which the situation turned violent. The man was beaten with an iron rod and gagged, while the woman was dragged to the rear of the bus, brutally raped and beaten repeatedly by the six men over the course of several hours. Finally, the men threw the two victims out of the moving bus, leaving them on the side of the road.[8]

The pair was taken to a hospital, where the man began to recover from his injuries. The woman, however, remained in critical condition for several days before dying from her injuries in a Singapore hospital on December 29, 2012.[9]

 

This incident became a watershed in spurring discussion and action on violence against women in India. It provoked national and international outcry over the status of women in India, prompting the Indian government to re-evaluate its procedures for the treatment, prosecution and compensation of gender violence. The Delhi gang rape case catalysed numerous mass demonstrations and increased activism around gender violence in general and the legal system’s handling of it in particular.[10]

In response to public pressure for a speedy trial, the Delhi High Court in December 2012 approved the creation of five fast-tracked courts to prosecute rape and sexual assault cases. It was in one of these courts that five of the men accused of the gang rape were prosecuted on charges of kidnap, rape, murder, attempted murder and destruction of evidence. The sixth man, a minor at the time of the attack, has been prosecuted in the juvenile court system.[11]

In March 2013, one of the accused committed suicide in prison while still on trial. The juvenile offender was sentenced to three years in a reform centre. The remaining four were convicted; the court issued death sentences in all four cases.[12]

In March 2014, the Delhi High Court upheld the verdict of the death sentence for all four convicts. As of mid-July 2014, the execution was stayed pending an appeal by the lawyers of the accused, who alleged that the trial had not been conducted in a ‘free and fair’ manner.[13]

In a wider response to the issue, the national government and state governments of India set up various commissions to better investigate violence against women. On December 22, 2012, the national government commissioned a judicial committee headed by former Chief Justice of India J. S. Verma, to investigate the legal framework and precedents regarding the prosecution of sexual assault as well as to make recommendations for amendments to criminal law. The Justice Verma Committee appealed to lawyers, the non-profit sector, women’s groups, the civil sector and the general public for their input and suggestions.[14] The report, released in February 2013, points to failures of government institutions and the police in recognizing and prosecuting sexual assault in a timely and constitutional manner.[15]

In April 2013, based on the recommendations given by the Justice J. S. Verma Committee, President Pranab Mukherjee gave his assent to the Criminal Law (Amendment) Act, 2013, which made changes to the Indian Penal Code and Indian Evidence Act on laws related to sexual offences.[16]

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Know the Law

The Criminal Law (Amendment) Act, 2013, introduced various amendments to existing laws on rape and sexual assault in the Indian Penal Code (IPC). The Delhi gang rape case and the resultant public outcry were a powerful impetus in amending the laws. As Indian law stands today, the Act describes rape explicitly and exclusively as committed by male perpetrators against female victims. While this does encompass the majority of rape cases, it does not account for rape that occurs between other victim-perpetrator combinations, such as the rape of a man by another man.

Following the amendments introduced by the Criminal Law (Amendment) Act, 2013, Section 375 of the IPC defines rape as non-consensual intercourse, penetration using the penis or ‘any object or a part of the body’, or oral intercourse.[17] The Act also specifies circumstances where consent may be nominally given but not valid, such as: consent obtained through coercion or threats; consent obtained by falsely impersonating the victim’s husband; and consent from a victim ‘unable to understand the nature and consequences’ of what she is agreeing to due to ‘unsoundness of mind or intoxication’. When a victim is below 18 years of age, penetration or intercourse is considered rape regardless of whether consent was given.[18]

The law specifies that mere lack of physical resistance is not sufficient to be regarded as consent. However, it also states that consent may be given ‘by words, gestures or any form of verbal or non-verbal communication’, creating potential ambiguities in determining when a woman has consented to a given sexual activity and possibly making it more difficult to prosecute rape complaints.[19]

Section 376 states that rape is punishable by imprisonment of at least seven years and up to a life sentence, plus a fine.[20] In certain cases, perpetrators are required to receive harsher sentences, such as when the perpetrator is a police officer, public servant or member of the military; when he holds ‘a position of trust or authority towards the woman’; or when the victim is pregnant, disabled or a minor. In these situations, the minimum sentence is ten years, with the possibility of a life sentence, plus a fine.[21] Section 376A prescribes a minimum sentence of twenty years when a perpetrator commits rape or sexual violence that ‘causes the death of the woman or causes the woman to be in a persistent vegetative state’,[22] while under Section 376D, a perpetrator in a gang rape faces a minimum sentence of twenty years, up to life imprisonment, plus a fine.[23]

The Criminal Law (Amendment) Act, 2013, has faced criticism for ignoring the Verma Committee’s recommendations on a number of issues; for example, the Act has raised the age of consent from 16 to 18, and has failed to make changes to the Armed Forces (Special Powers) Act, which currently makes it more difficult to try members of the armed forces for gender-based crimes[24]. The Act also includes an exception for marital rape, stating that ‘sexual intercourse or sexual acts by a man with his own wife … is not rape’.[25] This means that, under Indian law, marital status takes precedence over lack of consent in determining rape and sexual assault cases. The Criminal Law (Amendment) Act, 2013, does criminalise rape committed by a husband against his wife when they are ‘living separately, whether under a decree of separation or otherwise’, and prescribes a sentence of between two and seven years’ imprisonment, plus a fine.[26] For the majority of women assaulted by their husbands, however, there is no legal avenue for a criminal prosecution. The only legal remedy available to wives is the Domestic Violence Act, 2005, which is a civil rather than criminal law that provides for domestic violence reporting mechanisms and monetary compensation for victims.[27] It does not provide for punishment of offenders. Women’s advocates have argued that the marital rape exception prevents India’s criminal laws from adequately protecting women and effectively legalises countless cases of rape and abuse that occur within marriages.

Keeping Count

The National Crime Records Bureau (NCRB) keeps track of cases of rape reported under Section 376 of the Indian Penal Code. The NCRB reported 33,707 cases of rape in 2013, an increase of 35.2% from 2012 (24,923 cases).[28] Although many rapes and sexual assaults are not reported, reports of rapes have increased in recent years as more victims have stepped forward. It is possible that growing public attention towards the issue has emboldened more women to seek justice; it has also been suggested that the actual incidence of rape is increasing, contributing to the growing number of reports.[29] One estimate suggests that in India, a woman is raped on average every 20 mintues.[30]

Table 1 and Figure 1 show the number of rape cases reported between 2009 and 2013 according to the NCRB data.

Table 1: Number of Reported Rape Cases, 2009-2013[31]

Year	2009	2010	2011	2012	2013
Number of reported rape cases	21,397	22,172	24,206	24,923	33,707

Figure 1[32]

Note that the NCRB data only includes cases that fall under the Indian Penal Code definition of rape, not other forms of sexual assault that do not meet that definition.

The actual incidence of rape and sexual assault is difficult to determine with accuracy, as experts agree that the majority of rapes worldwide likely go unreported. Estimates of the proportion of unreported rapes vary from 54%[33] to 90%[34] of all rapes.

Of the rapes that are reported, the majority do not result in a successful prosecution. As of 2013, as many as three fourths of the perpetrators of the 24,206 rape cases brought forth in 2011 were either yet to face trial, had been acquitted or had the charges dropped.[35] Many rape and assault victims may decide not to report the assaults because of the fear of indifference or even retaliation from police officers and other law enforcement personnel. Victims have reported being asked demeaning questions by police, feeling as if the questioning procedures were like a second assault, waiting for hours to receive medical attention and being pressurized to marry their attackers or withdraw their complaints.[36]

[1] Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, World Report on Violence and Health, ed. Krug, E. G. et al, 2002, p. 149, http://whqlibdoc.who.int/hq/2002/9241545615.pdf, accessed 1^st December 2014.

[2] Jewkes, R., Sen, P. & Garcia-Moreno, C., ‘Chapter 6: Sexual Violence’, p. 149. See above note 1.

[3] Stange, M. Z., Oyster, C. K. & Sloan, J. E., ‘’Rape, legal definitions of’, The Multimedia Encyclopedia of Women in Today’s World, 2011, http://study.sagepub.com/sites/default/files/Ch09_Legal%20Definitions%20of%20Rape.pdf, accessed 1^st December 2014.

[4] ‘NCW Notice to Mirje over Rape Remark’, The New Indian Express, 29^th January 2014, http://www.newindianexpress.com/nation/NCW-Notice-to-Mirje-Over-Rape-Remark/2014/01/29/article2026716.ece, accessed 11^th December 2014; Hullinger, Jessica, ‘India’s Deadly Gang Rape: 6 Troubling Attempts to Blame the Victim’, The Week, 9^th January 2013, http://theweek.com/article/index/238542/indias-deadly-gang-grape-6-troubling-attempts-to-blame-the-victim, accessed 11^th December 2014; Bhalla, Abhishek & Vishnu, G., ‘The Rapes Will Go On’, Tehelka Magazine, Vol 9, Issue 15, 14^th April 2012, http://archive.tehelka.com/story_main52.asp?filename=Ne140412Coverstory.asp, accessed 11^th December 2014.

[5] ‘Feminist perspectives on rape’, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/feminism-rape/#CriWhaCou, accessed 1^st December 2014.

[6] See above note 5.

[7] ‘Common myths about rape’, RapeCrisis, http://www.rapecrisis.org.uk/commonmyths2.php, accessed 1^st December 2014.

[8] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN, 16 December 2013, accessed 2^nd December 2014.

[9] ‘Delhi gang rape: Chronology of events’, The Hindu, 10 September 2013, http://www.thehindu.com/news/national/delhi-gang-rape-chronology-of-events/article5079321.ece, accessed 2^nd December 2014.

[10] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.

[11] ‘Delhi gang rape: Chronology of events’, The Hindu. See above note 9.

[12] ‘Delhi gang rape: Four sentenced to death’, BBC News India, 13^th September 2013, http://www.bbc.com/news/world-asia-india-24078339, accessed 2^nd December 2014.

[13] ‘Court puts off execution of two men convicted of 2012 Delhi rape’, Reuters, 14^th July 2014, http://www.reuters.com/article/2014/07/14/us-india-gangrape-idUSKBN0FJ16P20140714, accessed 2^nd Decemer 2014.

[14] Ed. Sanyal, P., ‘Recommendations of the Justice Verma Committee: 10-point cheat sheet’, NDTV, 24^th January 2014, http://www.ndtv.com/article/cheat-sheet/recommendations-of-the-justice-verma-committee-10-point-cheat-sheet-321734, accessed 2^nd December 2014.

[15] Justice (retd.) Verma, J.S., Justice (retd.) Seth., L, & Subramanium, G., ‘Report of the committee on amendments ot criminal law’, Justice Verma Committee on Amendments to Criminal Law, January 2013, http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf, accessed 2^nd December 2014.

[16] Denyer, S., ‘India gang rape prompts tough new laws on sexual assault’, The Guardian, 5^th February 2013, http://www.theguardian.com/world/2013/feb/05/india-gang-rape-stricter-laws, accessed 2^nd December 2014.

[17] Criminal Law (Amendment) Act, 2013, Ch. 2(9), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8^th October 2014. Sec. 9 of the Act inserts Sections 375, 376 and 376A-D into the Indian Penal Code. Section 375 defines ‘rape’.

[18] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375,. See above note 17. This section defines consent and lists circumstances in which consent may be given but not held to be legally valid.

[19] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375. See above note 17.

[20] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(1). See above note 17. This section establishes sentencing rules for rape convictions.

[21] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376(2). See above note 17. This section lists circumstances in which a stronger sentence is required.

[22] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376A. See above note 17.

[23] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376D. See above note 17.

[24] ‘India: Reject New Sexual Violence Ordinance’, Human Rights Watch, 12^th Febuary 2013, http://www.hrw.org/news/2013/02/11/india-reject-new-sexual-violence-ordinance, accessed 11^th December 2014.

[25] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 375, Exception 2. See above note 17.

[26] Criminal Law (Amendment) Act, 2013, Ch. 2(9), Sec. 376B. See above note 17.

[27] Protection of Women from Domestic Violence Act, 2005, Section 3, http://wcd.nic.in/wdvact.pdf, accessed 29^th October 2014.

[28] ‘Chapter 5: Crimes against Women’, Crime in India 2013, NCRB, p. 81, http://ncrb.gov.in/CD-CII2013/Chapters/5-Crime%20against%20Women.pdf, accessed 26^th September 2014.

[29] Special Correspondent, ‘Majority of rape cases go unreported: MPs’, The Hindu, 27^th August 2013, http://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/majority-of-rape-cases-go-unreported-mps/article5063089.ece, accessed 2^nd December 2014.

[30] Bresnehan, S., Udas, S. & Ramgopal, R., ‘”Nirbhaya,” victim of India gang rape fought for justice’, CNN. See above note 8.

[31] ‘Chapter 5: Crimes against Women’, p. 81. See above note 26.

[32] Figure 1 was generated from the data in Table 1.

[33] Kark, M., ‘Understanding Indian and Pakistani cultural perspectives and analyzing US news coverage of Mukhtar Mai and Jyoti Singh Pandey’, University of North Texas Master’s Thesis, UNT Digital Library, p. 4, http://digital.library.unt.edu/ark:/67531/metadc271840/, accessed 2^nd December 2014. Kark quotes a figure from the Rape, Abuse & Incest National Network (RAINN).

[34] Srivastava, M., ‘The iceberg of rape’, India Today, 17^th June 2009, http://indiatoday.intoday.in/story/The+iceberg+of+rape/1/46911.html, accessed 2^nd December 2014.

[35] Fisher, M., ‘India’s rape problem is also a police problem’, Washington Post, 7^th January 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/01/07/indias-rape-problem-is-also-a-police-problem/, accessed 2^nd December 2014.

[36] Fisher, M., ‘India’s rape problem is also a police problem’. See above note 33.

*****

This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

Gender Violence in India Report 2014: Street Sexual Harassment

Street sexual harassment can refer to any form of sexual harassment that occurs in a public place. This includes not just streets but also public transport such as buses and trains, malls, beaches, parks, restaurants and cafés, markets, bazaars, public toilets, elevators and any other place outside the home or workplace.[1] Street harassment can affect girls and women, and to a much lesser extent, boys and men; it can occur at any time of the day or night; and it can take the form of verbal, non-verbal or physical actions that are sexually aggressive and cause physical and/or emotional harm. Street sexual harassment is euphemistically known in India as ‘eve-teasing’, which trivializes the impact that this form of violence has on victims.[2]

The non-profit organisation Stop Street Harassment lists several offences that can be categorised as street harassment, ranging from ‘leers, whistles, honks, kissing noises, gender-policing, and non-sexually explicit evaluative comments, to more insulting and threatening behaviour like vulgar gestures, sexually charged comments, flashing and stalking, to actions like public masturbation, sexual touching, assault and murder’.^[3] The organisation also notes that street sexual harassment is a ‘human rights issue’, because it denies women equal access to public spaces.[4]

Know the law

National Legislation

There is no national legislation addressing street sexual harassment specifically; however, the new Criminal Law (Amendment) Act, 2013, which was enacted in April 2013 to amend sections of the Indian Penal Code (IPC) that address gender violence, has classified ‘sexual harassment’ as a punishable offence. Under the newly introduced Section 354A, ‘physical contact and advances involving unwelcome and explicit sexual overtures’ and ‘a demand or request for sexual favours’ are each punishable with imprisonment up to three years, or a fine, or both.[5] According to the same Amendment, ‘making sexually coloured remarks’ can lead to imprisonment for up to one year, or a fine, or both.[6] These amendments, while not comprehensive, apply to many cases of street sexual harassment, providing victims new avenues for obtaining justice.

Additionally, the newly-added section 354D of the Indian Penal Code addresses stalking: ‘any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman’ can be tried for stalking. If convicted, offenders can face imprisonment up to three years for a first conviction, and up to five years for repeat offences, in addition to paying a fine. However, this section also says that a case will be dismissed if the accused can prove that ‘in the particular circumstances such conduct was reasonable and justified’, thereby providing a potential loophole for perpetrators.[7]

In addition to these amendments, offences under existing legislation, such as assault or criminal force to a woman that is intended to ‘outrage her modesty’ (under Section 354), is now punishable with imprisonment of a minimum of one year, and up to five years, in addition to a fine; previously, the maximum sentence for a Section 354 offence was two years.[8] Offences under Section 509, which addresses any ‘word, gesture or act intended to insult the modesty of any woman’, can now be punished with imprisonment up to three years, up from one year, in addition to a fine.[9] Section 294 criminalises obscene acts and singing, reciting or uttering any ‘obscene song, ballad or words’ in a public place, and can result in imprisonment for up to three months, or a fine, or both.[10]

State Legislation

While most states have enacted prohibitions against sexual harassment generally, Tamil Nadu continues to be the only state in the country with legislation targeting street harassment explicitly. The Prohibition of Harassment of Women Act was passed by the state in 1998 in response to the death of college student Sarika Shah, who died due to injuries sustained from street sexual harassment.[11]^,[12] The Act was amended in 2002.

The Act provides for life imprisonment and a fine of at least Rs. 50,000 for those convicted of intentionally causing the death of a woman by harassment. According to Section 4 of the amended Act, up to three years’ imprisonment and a fine of not less than Rs. 10,000 is the penalty for ‘whoever commits or participates in or abets harassment of women’ in any place. The law also imposes a punishment of up to ten years’ imprisonment and a fine of not less than Rs. 50,000 on offenders in cases where the harassment causes the victim to commit suicide. Significantly, the Bill states that the onus of proving innocence lies on those accused of having caused or abetted the ‘harassment death’ or ‘harassment suicide’. It also provides for compensation for victims of street harassment who suffer any loss, injury, disability or mental agony, and for victims’ legal heirs.[13]^,[14]

Keeping count

Many factors contribute to the vast underreporting of street harassment: perpetrators are often strangers; they can usually escape with relative ease; women are socially conditioned to stay silent about this form of abuse; and victims tend to harbor distrust towards the institutions that are meant to deliver justice.

As a result, little statistical data is available on the prevalence of street sexual harassment, and the reliability of existing data is difficult to evaluate. The National Crimes Record Bureau (NCRB) does not collect data on street harassment specifically; it does record the number of cases filed under Section 354 (‘assault on women with intent to outrage her modesty’, referred to in pre-2012 reports as ‘molestation’) and Section 509 (‘insult to the modesty of women’ through words, gestures or acts, referred to in pre-2012 reports as ‘sexual harassment’). However, both of these sections of the IPC encompass not just street sexual harassment but also other forms of gender violence, such as workplace harassment.

Table 1, as well as Figures 1 and 2, summarize the past six years of NCRB data. Not all of the cases filed resulted in prosecutions or convictions. Furthermore, without further study it is impossible to determine whether and to what extent fluctuations in the numbers are due to actual changes in the incidence of harassment, changes in reporting practices and procedures, random variation or other unknown factors.

According to the NCRB data, the number of Section 354 cases filed increased by 56% between 2012 and 2013; the number of Section 509 cases filed increased by 37.2% during the same period. Of the Section 354 filings in 2013, Madhya Pradesh had the highest percentage of reported cases (11.67%), followed by Maharashtra (11.50%).[15] Of the Section 509 filings for 2013, a staggering 37.35% were reported in Andhra Pradesh alone;[16] however, this may indicate greater awareness of Section 509 or better support for victims in that state, instead of or in addition to a higher incidence of harassment. Without further data and analysis, no clear causal conclusions can be drawn from the reporting statistics. Anecdotal evidence suggests that street harassment occurs much more frequently, and to a substantially larger number of women, than indicated by reported cases.

Table 1: Sexual Harassment and Assault Cases Filed, NCRB

Year	2008	2009	2010	2011	2012	2013
Section 354 cases filed	40413	38711	40613	38711	42968	70739
Section 509 cases filed	12214[17]	11009[18]	9961[19]	11009[20]	8570[21]	12589[22]

                                                                                       Figure 1                                                                                              

 

 Figure 2

In 2009, the non-profit Jagori launched the ‘Safer Cities Free from Violence against Women and Girls’ initiative, in collaboration with the Department of Women and Child Development and UN Women. As part of this initiative, Jagori conducted a baseline survey in 2010 of over 5,000 men and women living in Delhi.[23] Kerala-based non-profit SAKHI also contributed to this initiative, undertaking a study in Thiruvananthapuram and Kozhikode between 2009 and 2011. SAKHI surveyed 800 women and 200 common witnesses (men and women likely to have witnessed the sexual harassment of women, owing to their proximity to public spaces) in Thiruvananthapuram and 400 women and 100 common witnesses in Kozhikode; the organization also held focus group discussions, safety audits and capacity gaps analyses.[24]

According to Jagori’s survey, almost two-thirds of women had faced sexual harassment two to five times in the preceding year. Harassment was most commonly reported to occur on public transport and roadsides. The study also revealed that school and college students between the ages of 15 and 19 and female workers in the unorganised sector were particularly likely to be harassed; that harassment can occur at any time of the day or night, in any kind of public space, whether secluded or crowded; that almost nine out of ten respondents had witnessed incidents of sexual harassment; that bad infrastructure, poorly maintained pavements and the lack of public toilets were among the main reasons for the prevalence of street harassment; and that the burden of staying safe continues to remain upon women. An ‘overwhelmingly high percentage’ of all respondents considered sexual harassment to be the ‘most important factor that renders Delhi … unsafe’. [25]

The study by SAKHI reinforced many of these findings. All the women surveyed in Thiruvananthapuram said that they feared the possibility of violence in the city’s public spaces. Sexual harassment has also been reported as the main ‘safety problem’ by 98% of the women and 99% of the common witnesses surveyed.[26] Almost 60% of women said that a ‘lack of respect’ contributed towards making them feel unsafe in public.[27] In Kozhikode, the number reporting harassment during the day was over twice the number of those who had experienced it after dark.[28] Only nine of the 400 women surveyed for ‘direct experience’, as opposed to those surveyed as ‘common witnesses’, reported not having faced street sexual harassment.[29]

[1] Gender Violence in India: A Prajnya Report, ‘Street Sexual Harassment’, p. 9, 2010.

[2] ‘What Is Street Harassment?’, Stop Street Harassment, http://www.stopstreetharassment.org/, accessed 8^th October 2014.

^[3] See above note 2.

[4] See above note 2.

[5] Criminal Law (Amendment) Act, 2013, Ch. 2(7), http://indiacode.nic.in/acts-in-pdf/132013.pdf, accessed 8^th October 2014. Sec. 7 of the Act inserts Section 354A into the Indian Penal Code. Section 354A(1)(i-ii) lists the offences, and Section 354A(2) lays out sentencing rules.

[6] See above note 5. Section 354A(I)(iv) lists the offence, and Section 354A(3) lays out sentencing rules.

[7] See above note 5. Section 354D(I) defines stalking and lists the exceptions; Section 354D(II) lays out sentencing rules.

[8] Criminal Law (Amendment) Act, 2013, Ch. 2(6). (See above note 5)

[9] Criminal Law (Amendment) Act, 2013, Ch. 3(24)(f). (See above note 5)

[10] Indian Penal Code, Sec. 294(a-b), http://indiankanoon.org/doc/594493/, accessed 8^th October 2014.

[11] Crime Review Tamil Nadu 2011, “Chapter 7: Crime Against Women”, p. 61, 2011, http://www.tnpolice.gov.in/, accessed 8^th October 2014. Report lists ‘local laws with special provisions to safeguard women and their interests’.

[12] Sangameswaran, K.T., ‘Trial court verdict in Sarika Shah case upheld’, The Hindu, 15^th March 2008, http://www.thehindu.com/, accessed 8^th October 2014.

[13] Act to amend the Tamil Nadu Prohibition of Eve-Teasing Act, 1998 (Act No. 59 of 2002), Sec. 6-7 (Amendments to Sec. 4 of the original Act), http://www.lawsofindia.org/, accessed 8^th October 2014.

[14] Special correspondent, ‘Act against eve-teasing to get more teeth’, The Hindu, 31^st October 2002, http://www.thehindu.com, accessed 2^nd September, 2014

[15] ‘Chapter 5: Crime Against Women’, Crime in India 2013, NCRB, p. 389, http://ncrb.gov.in/, accessed 8^th October 2014.

[16] See above note 15.

[17] ‘Figures at a Glance – 2008’, Crime in India 2008, NCRB, http://ncrb.gov.in/, accessed 8^th October 2014. Notes 17-22 refer to both Section 354 and Section 509 filings for the given year.

[18] ‘Figures at a Glance – 2009’, Crime in India 2009, NCRB, http://ncrb.gov.in/, accessed 8^th October 2014.

[19] ‘Figures at a Glance – 2010’, Crime in India 2010, NCRB, http://ncrb.gov.in/, accessed 8^th October 2014.

[20] ‘Figures at a Glance – 2011’, Crime in India 2011, NCRB, http://ncrb.gov.in/, accessed 8^th October 2014.

[21] ‘Figures at a Glance – 2012’, Crime in India 2012, NCRB, http://ncrb.gov.in/, accessed 8^th October 2014.

[22] ‘Figures at a Glance – 2013’, Crime in India 2013, NCRB, http://ncrb.gov.in/, accessed 8^th October 2014.

[23] ‘Safe Cities Free of Violence against Women and Girls Initiative: Report of the Baseline Survey Delhi 2010’, Jagori & UN Women, 2011. http://jagori.org/, accessed 8^th October 2014.

[24] ‘Are Cities in Kerala Safe for Women? Research findings of the study conducted in Thiruvananthapuram and Kozhikode cities, Kerala 2009-11’, SAKHI Women’s Resource Centre: Thiruvananthapuram, July 2011, http://www.unwomensouthasia.org/, accessed 8^th October 2014.

[25] ‘Safe Cities’, Jagori & UN Women, p. xii (see above note 23).

[26] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 11 (see above note 24).

[27] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 12 (see above note 24).

[28] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 14 (see above note 24).

[29] ‘Are Cities in Kerala Safe for Women?’, SAKHI, p. 13 (see above note 24).

 

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This series of posts were researched, drafted and edited by Divya Bhat, Shakthi Manickavasagam, Titiksha Pandit and Mitha Nandagopalan.

December 2014

The Case for Criminalising Marital Rape

Last month, the Indian Government passed the Criminal Law (Amendment) Act, 2013, as a response to the brutal rape and murder of a young woman in December 2012 and the nation-wide protests triggered by this tragic event. Based on the recommendations of the well-received Justice Verma Committee report, the final amendments adopted by the government have been immensely disappointing, presenting a heavily diluted version of the Justice Verma recommendations, and have attracted domestic and international criticism for squandering the opportunity to make landmark changes to gender violence laws in India. Of the new legislation’s many shortcomings, one of the most troubling is the retention of an exception to Section 375 of the Indian Penal Code, which states: ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

What does this statement imply? That a man is incapable of raping his own wife? That non-consensual sex cannot exist in a marriage? Or perhaps it is symptomatic of something much more sinister, which lies at the core of our patriarchal society: the pervasive belief that marriage precludes a woman’s right to consent, stripping her completely of any sexual agency. As the Justice Verma report notes, denying married women their right to consent reduces them to ‘no more than the property of their husbands’. This subjugation of the Indian Wife is conveniently presented in the sanitised guise of ‘protecting the family’, an argument that was repeatedly cited by our elected officials in the parliamentary debates that preceded the passage of the new act. The Parliamentary Standing Committee on Home Affairs that reviewed the Justice Verma recommendations similarly asserted that criminalising marital rape would be nothing less than an ‘injustice’, destroying the very institution of marriage.

Is it really possible our lawmakers do not realise that an abusive marriage is already broken? That protecting the idea of the traditional Indian family is not worth condemning countless women to violence, indignity and shame? Any victim of rape, whether she is single or married, and whether her rapist is a stranger, or her next-door neighbour, or her uncle, or her own husband, has to cope with intense emotional trauma; how can the law then be so discriminatory? When access to good medical and psychological care is already problematic for recognised victims of sexual assault in India, what recourse is available for marital rape survivors?

The other mystifying part of the exception to Section 375 is the assertion that a man can be charged with rape if his wife is under fifteen years of age. To place this in context, the minimum legal age for a woman to marry in India is 18, and the minimum age of consent is also 18 (having been raised by the new legislation from 16, which was primarily done to discourage premarital sex). Taken together, this means that a girl between the ages of 15 and 18 can be legally raped by her husband (in spite of such marriages being illegal, a recent study found that 47% of women in India between the ages of 20 to 24 were married before they turned 18), even though an unmarried girl of the same age has been declared by the law as being incapable of consenting to sex! This implies that the ability to consent is considered irrelevant once a woman is married, for a married woman is assumed to have no right to consent. Somehow, the deep injustice of denying someone her right over her own body continues to be ignored.

While there are some legal options available to a woman in a sexually abusive marriage, they are far from adequate. The Protection of Women from Domestic Violence Act, 2005, while addressing all possible forms of violence in a marriage, including sexual abuse, is only a civil law, aimed at providing relief and compensation to victims of domestic violence, not bringing perpetrators to justice. The only option for filing a criminal case is through Section 498A of the IPC, which broadly addresses marital ‘cruelty’, defined as causing ‘grave injury or danger to life, limb or health (whether mental or physical)’. However, unless sexual assault is accompanied by severe physical injuries or psychological illness, prosecuting marital rape under this legislation is unlikely to be successful. Moreover, Section 498A, which also addresses dowry harassment, has become increasingly controversial, due to allegations of ‘false’ claims; a cursory search online brings up several websites advising the ‘real’ victims, namely husbands and their families, on how to escape the supposed machinations of their ‘wily’ wives. Thus, without the criminalisation of marital rape, women being sexually abused by their husbands have little hope of securing justice.

Some who support the government’s decision to include the marital rape exception in Section 375 argue that proving marital rape would be impossible, making any legislation pointless; after all, they say, a man is expected to have sex with his wife, it would be her word against his on whether it was consensual. Arguments such as this are indicative of a broader misconception: that rapists are always strangers and ‘true’ rape victims would have been virgins at the time of their assault, which is why doctors continue to use outrageous methods such as the ‘two-finger test’ to determine if a rape has occurred, and courts continue to insist on presenting this as evidence. If every hospital were provided with standardised rape kits, which would allow for a more thorough and sophisticated examination, then the challenge of proving sexual abuse, particularly for victims who have suffered long-term trauma (as is often the case with marital rape victims), would be diminished considerably. As part of the new legislation, the Indian Evidence Act was amended to state that a victim’s character or ‘previous sexual experience with any person’ would not be considered relevant in a rape trial. It is hoped that this, along with a recent Supreme Court judgment that called for the end of primitive and degrading ‘virginity tests’ as evidence of rape, will sound the death knell for these humiliating, outdated and ineffective procedures.

Moreover, sexual assault, particularly over a sustained period of time, is often accompanied by other telling signs of abuse. According to the most recent National Family Health Survey (NFHS-3), commissioned by the Ministry of Health and Family Welfare in 2005-06, women who have experienced sexual violence by their husbands also face a very high risk of both physical and emotional violence. In such cases, prosecuting the perpetrator for marital rape would not be an insurmountable task. Most importantly, even if a case may be difficult to prove, that is not reason enough to avoid criminalising such a heinous offence, and no woman should be denied due process.

Finally, to those who argue that criminalising marital rape will result in a multitude of ‘false’ cases, as detractors of Section 498A claim: for a victim of sexual assault, the ordeal does not end when she files a complaint against her abuser; her own feelings of shame, guilt and lack of self-worth, and the agony of being physically and emotionally violated are not all she must contend with. From the moment she speaks out, she is subjected to doubt, stigmatisation and even ostracism; at every stage, her motives, credibility and morality are questioned, and she is often forced to undergo a degree of scrutiny that even her abuser does not face. For a woman who is raped by her own husband, the shame is only compounded; the scrutiny only increased. She must face accusations of bringing dishonour to her family, stuck with labels that will follow her throughout her life (‘ungrateful’, ‘frigid’, ‘bad mother’). This climate of hostility towards actual victims is surely enough to dissuade most women from wrongfully accusing their spouses.

The NFHS-3 survey found that nearly one in ten married women in India have been victims of sexual violence by their husbands. Many of these women will choose to keep quiet about their abuse, even if marital rape is criminalised; but by removing the exception to Section 375, these women, at the least, will know that should they find the courage to speak out, they will be ensured some degree of institutional support; and crucially, the choice to speak out will be theirs. It is devastating that instead of giving them this choice, the law has forced them into silence.

References:

1. Aarti Dhar, ‘”Rape law changes welcome, yet an opportunity lost”‘, The Hindu, 2 May 2013, http://www.thehindu.com/news/national/rape-law-changes-welcome-yet-an-opportunity-lost/article4674324.ece.

2. Anahita Mukherji, ‘47% of young Indian women marry before 18’, The Times of India, 10 May 2011, http://articles.timesofindia.indiatimes.com/2011-05-10/india/29527428_1_child-marriage-ssa-icds.

3. ‘Delhi gang-rape victim dies in hospital in Singapore’, BBC News, 29 December 2012, http://www.bbc.co.uk/news/world-asia-india-20860569.

4. ‘Frequently Asked Questions on the Protection of Women from Domestic Violence Act 2005’, Lawyers Collective Women’s Rights Initiative, http://www.lawyerscollective.org/files/FAQonProtectionOfWomen1.pdf.

5. Justice J.S. Verma, Justice Leila Seth and Gopal Subramanium, ‘Report of the Committee on Amendments to Criminal Law’, 23 January 2013, http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf, pp 113-118.

6. Kanu Sarda, ‘Degrading 2-finger test must end: Supreme Court’, Daily News and Analysis, 23 April 2013, http://www.dnaindia.com/india/1825887/report-dna-exclusive-degrading-2-finger-test-must-end-supreme-court.

7. Nilanjana S. Roy,’Our bodies, our selves’, The Hindu, 8 March 2013, http://www.thehindu.com/opinion/lead/our-bodies-our-selves/article4485350.ece.

8. ‘One Hundred and Sixty-Seventh Report on the  Criminal Law (Amendment) Bill, 2012’, Department-Related Parliamentary Standing Committee on Home Affairs, March 2013, http://www.prsindia.org/uploads/media/Criminal%20Law/SCR%20Criminal%20Law%20Bill.pdf, p 47.

9. Piyashree Dasgupta, ‘Live: Lok Sabha passes anti-rape bill, RS votes tomorrow’, Firstpost, 19 March 2013, http://www.firstpost.com/india/live-lok-sabha-passes-criminal-law-amendment-bill-2013-666443.html.

10. Sunita Kishor and Kamla Gupta, ‘National Family Health Survey (NFHS-3) India, 2005-06: Gender Equality and Women’s Empowerment in India’, August 2009, http://www.rchiips.org/nfhs/a_subject_report_gender_for_website.pdf, pp 95-109.

11. ‘The Criminal Law (Amendment) Act, 2013’, 2 April 2013, http://egazette.nic.in/WriteReadData/2013/E_17_2013_212.pdf.