Sexual offences and the rule of law

TWO horrifying reports of gang rape have emerged in the last few days. In Gurgaon, a young woman carrying her eight-month old infant was gang raped in a share-auto. The baby was thrown from the auto, leading to its tragic death. Far from the capital, a 14-year old girl was gang raped in Salem district in a private bus by two drivers and a conductor. The facts are eerily similar to the December 16, 2012 incident where a young student was brutally assaulted and gangraped in a bus when she was travelling with a friend in Delhi. That incident sparked an outrage in the country and led to swift investigation and prosecution as well as review of criminal laws pertaining to sexual assault.

Changes to the law 

The government constituted a three-member committee headed by Justice JS Verma to recommend amendments to criminal law, to provide for “quicker trial and enhanced punishment for criminals committing sexual assault against women”. The Verma Committee gave far-reaching recommendations, including expanding the definition of rape and criminalised several kinds of non-consensual sexual acts as ‘sexual assault’. It criminalised ‘voyeurism’, ‘stalking’, ‘acid attack’, ‘act with intent to disrobe a woman’ etc., as serious sexual offences. It also recommended severe penalties for these sexual offences. The Verma Committee specifically decided against seeking death penalty for sexual offences observing that there is a “current thinking in favour of abolition of the death penalty, and also to avoid the argument of any sentencing arbitrariness”. It held that “it would be a regressive step to introduce death penalty for rape even where such punishment is restricted to the rarest of rare cases”. The Verma Committee also observed that death penalty for rape does not have any deterrent effect. The Indian Penal Code was amended in 2013 accepting several recommendations of the Verma Committee. Despite the changes in law plugging several loopholes, the incidence of violence against women do not seem to have reduced. While our criminal laws set down that non-consensual physical or sexual acts attract strict punishment, we find that rape and sexual assault is nearly an everyday occurrence. Some instances of violence against women such as the Delhi victim receive significant attention in the media and capture public imagination, but several instances of violence against women in rural areas and especially against women of marginalised communities such as Dalits or minorities are ignored. Survivors of sexual assault face a struggle to even register a First Information Report (FIR) and initiate criminal action against perpetrators of the crime. The class-caste-locational axis play a crucial role in determining whether women victims are believed when they allege that they were subject to sexual assault and eventually get justice. 

Violence against women is a serious issue that is almost universal in nature. The World Health Organization (WHO) calls violence against women “a global health problem of epidemic proportions”. In 2013, the WHO reported that one-third of all women are affected by physical or sexual violence. Alarmingly, violence by intimate partner (husband/boyfriend) is the most common type of violence affecting 30 per cent of all women globally. This situation is no different in India, but violence committed within the family is not treated seriously. Marital rape is not considered a sexual offence despite the recommendation of the Verma Committee to criminalise the same. While India is still not willing to consider marital rape or domestic violence as a serious crime, as a fall-out of the Delhi 2012 incident, violence against women perpetrated in public does receive significant sympathy and attention. It is important to introspect and examine why, despite stringent laws, incidence of brutal rape and sexual assault persists. 

Countering rape culture   

It is important to understand that rape and other sexual offences are expressions of power and dominance vis-à-vis women and not just satiation of one’s sexual desires. Incidents such as this demonstrate the deep-seated patriarchy of our society where women are regarded as sexual objects, with no autonomy. Popular culture plays an important role in perpetuating rape culture. Our mainstream films still portray women as sexual objects; stalking as expression of ‘genuine’ love; dominant men as ‘strong’ and ‘masculine’ and perpetuates stereotypes as to gender roles. People, especially the impressionable youngsters, take cues from popular culture to form their worldview and perspective about gender relations. Where mainstream depictions of women are unidimensional and as sexual objects rather than well-rounded individuals, rape culture is perpetuated. All stakeholders in civil society have a responsibility to ensure that our acts do not foster rape culture.

The Verma Committee interestingly observed that there is a link between good governance and sexual violence. It observed that “failure of good governance is the obvious root cause for the current unsafe environment eroding the rule of law, and not the want of needed legislation.” The fact that the State cannot ensure the safety and dignity of women in public transport as in the case of the 2012 Delhi gangrape, or the recent Salem or Gurugram gang rape instances, is definitely indicative of lack of good governance and questions the quality of policing in the country. More importantly, these instances indicate a fundamental constitutional crisis. Article 14 of the Constitution of India guarantees right to equality and equal protection of the law; Article 21 of the Constitution ensures the right to life with dignity. In an environment where safety of women cannot be ensured, these fundamental guarantees in the Constitution are mirages.   As noted above, strict penalties in law alone are insufficient to deter instances of rape and other sexual offences. The gangrapes in Salem and Gurugram were committed less than a month after the Supreme Court affirmed death penalty for the accused in the  2012 Delhi case. The Justice Verma Committee observation that death penalty does not seem to deter rape stands vindicated. These offences cannot be prevented in the absence of good governance where the State authorities proactively police and with sufficient infrastructure create an environment that is safe for women. Equally important is a change in societal attitudes. Women are not just constituents to be protected, but persons whose bodily autonomy and rights are to be respected. Prevalence of sexual violence is not just a matter of gender justice, it is an indictment of rule of law. Through our searing disappointment and outrage over repeated incidents of brutal sexual violence, we must acknowledge that over the past few years, there has been a significant progress in the way in which sexual offences are portrayed. There is much less victim-blaming and more support to those who come forward to report sexual violence. There is also a significant change in judicial attitude from earlier jurisprudence where the rapist could marry the victim and have criminal charges quashed. The gruesome incidents in Salem and Gurugram remind us that as a society, we are not even close to realising our ideal of gender equality. Laws do not operate in a vacuum and the changes in law postthe Delhi case have not been sufficient to prevent similar incidents. The victims in these cases have been failed by the State once already in failing to prevent these crimes; we can only hope that swift investigation and prosecution of perpetrators with a vigilant civil society and the media acting as watchdogs, ensures conviction and achieve justice.