The current debate over making rape punishable by death has thrown the spotlight on the Criminal Law (Amendment) Bill introduced in the Parliament last month. The amendments, if passed, will make the legal architecture against rape and related offences more stringent than it currently is, and address some of the lacunae in the existing laws.
The Bill, drawn up on recommendations of the Law Commission and after consultations with women’s activists and organisations, seeks to amend relevant Sections of the Indian Penal Code (1860), the Code of Criminal Procedure (1973) and the Indian Evidence Act (1872). Some activists say more could have been done.
Key proposed amendments include substituting the word ‘rape’ with the more general and inclusive phrase ‘sexual assault’, widening the definition of sexual assault to include non-penile penetration, inclusion of offences such as acid attacks, and recognition of persistent sexual attack as an “aggravated offence” attracting ten years imprisonment.
These amendments attempt to address some of the long-pending grievances against laws dealing with rape and molestation. The most significant of these is the substitution of “rape” with “sexual assault”, making Sections 375, 376, 376A and 376B gender-neutral, and substantially expanding their scope to include offences of non-penile penetration too.
“Considering that rape cases that went to trial often collapsed because the penile penetration of the vagina up to a certain length could not be proved, this amendment will help rape victims and perhaps lessen their trauma during investigation and trial,” said Flavia Agnes, lawyer and women’s issues activist.
Also, the proposed amendments recognise that sexual attack/assault could be demonstration of power; a sub-clause in Section 376 (2) includes “…being in a position of economic or social or political dominance, commits sexual assault on a person under such dominance..” replacing the earlier debatable phrase “undue influence”.
However, activists pointed out to the lack of attention to procedures laid down in various Sections dealing with rape and sexual attack.
“The procedure for medical examination of the victim should be more clearly laid down accounting for her trauma. The two-finger test should be strictly prohibited,” said a senior lawyer dealing with gender violence cases.
The Lawyers Collective Women’s Rights Initiative, a city-based advocacy organisation, has submitted a recommendation on medico-legal documentation and forensic evidence in such cases.
The changes proposed in Sections 354 and 509 of the IPC could, similarly, be far-reaching. Section 354 deals with “outraging the modesty of a woman”; the amendment proposes to replace it with “violating the bodily integrity of the woman” and enlarge its scope to cover non-penetrative sexual assaults such as stripping, disrobing, tonsuring and molestation.
Activist groups have suggested more changes so that sexual harassment can include blackmailing, stalking and other kinds of harassment without physical contact.
There’s also a case to make the amendments gender-neutral, replacing ‘woman’ with ‘person’, they say.
However, gender neutrality in the proposed amendments has drawn flak. “It will be a convenient cover for the patriarchy embedded in our courts and law. Gender-neutral laws can only work in a structurally equal society,” said a Lawyers Collective Women’s Rights Initiative statement.
Death penalty, though, is still debatable. Agnes said punishment should be “just, not vengeful”.