Published On: Thu, Dec 27th, 2012

suggestions/recommendations on the amendment of laws dealing with Rape / Sexual Assault

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To
Hon’ble [RETD] Justice J. S. Verma

New Delhi

Sub: My suggestions/recommendations on the amendment of laws dealing with Rape / Sexual Assault

Dear Sir,

The recent gang-rape at Delhi has somehow made the whole atmosphere emotionally charged. There are demands from different sections of the society and the protesters to hand out “fast” and “harsh” punishment to all the accused, some even demanding capital punishment. There are also demands to amend current laws to make capital punishment as a “de-facto” penalty in cases of Rape.

Sanity, however, demands that any amendments should pass the test of rationality and provide sufficient safeguards to avoid “miscarriage” of justice.

There are two very central issues in the current law making and judicial process:

A) In gender related issues, the law making in India remains to be only women-centric. The data related to gender crimes are captured, interpreted and presented to “gullible” Indian citizens in such a way that it only feeds thought like – “All MEN are criminals and All WOMEN are victims” and that “Only WOMEN are/can be victims”.

B) The judicial infrastructure falls awfully short in ratio to the present population of India. This has resulted in the present situation of huge pendency of cases in all the courts. Even in the cases which get resolved after a long legal battle, the real victim gets the sense of justice denied for him.

Why Sexual assaults on men are underrepresented?

The WHO report on sexual violence [1] states the below

“Most experts believe that official statistics vastly under-represent the number of male rape victims. The evidence available suggests that males may be even less likely than female victims to report an assault to the authorities. There are a variety of reasons why male rape is underreported, including shame, guilt and fear of not being believed or of being denounced for what has occurred. Myths and strong prejudices surrounding male sexuality also prevent men from coming forward.”

Sexual assault against males by the Indian Police is far more brutal than sexual assault against females

Are only females entitled to have modesty in India and not men? Is a man any less of a human being in the eyes of the government than a woman when it comes to safeguarding his modesty? If the answer is ‘No’ then A Police officer violating the modesty of man in any way must be held equally guilty of Sexual Assault. Some recent studies expose the fact that the relative brutality of sexual assault on a man by the police is often much more than sexual assault of a woman. Frequently sexual assault on men go far beyond just outraging the modesty and are in many cases severe and life threatening and hence the punishment for the crime of sexual assault by a police officer or a government servant against any man must be commensurately much more.

1) Study: – Torture in India 2010 – Asian Center for Human Rights

The Asian Center for Human Rights in its report tiled “Torture in India 2010”[2], discloses that with the 2000-2001 as the base year, custodial deaths have increased by 41.66% persons under the UPA government between 2004-2005 and 2007-2008 in India. This includes 70.72% increase of deaths in prison custody and 12.60% increase of deaths in police custody. Rampant and deadly sexual assault cases against males in particular have been documented in this shocking study. Few are highlighted below.

a) Page 20 “The victims told the court that they were tortured for four days. The police used candles on their genitals forcing them to confess to the crime which they insisted they did not commit. The court instructed the police to take the victims to hospital for treatment. The doctors  found burn injuries on the genitals and legs of both victims.”

b) Page 21 “In June 2009, Jitumoni Bora, the officer-in-charge of Nitaipukhuri police outpost in Sivasagar district of Assam allegedly stripped naked two Class X students and rubbed “Bhut Jolokia” (also called Naga Jolokia), the world’s hottest chilli, on their bodies.”

c) Page 80 “Mr. S. inquired as to the reason for his detention, but he was hit by BSF personnel with wooden sticks, which made him fall to the ground. At that time, other personnel started beating him with their boots,resulting in black spots all over his body and bleeding from his penis.”

2) Study: – “POLICE TORTURE IN PUNJAB, INDIA: An Extended Survey

While in custody male prisoners are routinely subjected to brutal and life threatening sexual assaults for various reasons such as signing forced confessions. Although very little information is actually gathered by the government on these sexual assault techniques for obvious reasons , there are a few very reliable reports like “POLICE TORTURE IN PUNJAB, INDIA: An Extended Survey” by Ami Laws and Vincent Iacopino[3]  which list the some of the brutal and life threatening sexual assault techniques used by the Indian police .

a) Disrobing the male prisoners causing them deliberate embarrassment

b) Kicking the male prisoners in their groin and thighs by officers wearing heavy boots

c) Electric shocks administered to male genitals

d) Motor Oil being pushed up a Male’s anus

e) Chilli Peppers pushed up the Male’s anus

f) Inserting foreign objects like Batons and other instruments in private parts

g) Raping Male prisoners with relatives having to watch

A report from Physicians for Human Rights (PHR) Denmark indicated that, as recently as 2000, Punjab police were still using the same sexual assault techniques on detainees.

RAPE/Sexual Assault laws should be gender neutral

The present rape laws in India recognize only man-on-woman rape cases. Whereas, all over the world the rape have been changed or are changing to include all kinds, man-on-man, woman-on -man and woman-on-woman rape cases. As correctly opined in the article – (‘Focus on means to prevent similar incidents in future’ – Justice JS Verma, Hindustan Times, New Delhi, December 20, 2012 : http://www.hindustantimes.com/News-Feed/ColumnsOthers/Focus-on- means-to-prevent-similar-incidents-in-future/Article1-976811.aspx)

“Modernity requires the women to constitute a large working force

increasingly more women are occupying the roads, malls and work-places etc., the occurrences of woman-on-woman and woman-on-man gender crimes have increased and will continue to do so in future. To not recognize Rape/sexual assault as a gender-neutral crime is to play with and to oppress the rights of such victim men and women.

False propaganda is being propagated by feminists that police does not register complaints by women – the reality is – police is so brazen that it does not want to register any complaint without favor/influence – police does not single out the “women”. Anyone who visited a police station can tell that police have indifferent attitude against all victims and most of the times work to shield the criminals. Even in the recent Ponty Chhaddha shoot-out case, the police personnel who reached the spot first tried to destroy evidence.

False cases of Rape/Sexual harassment :

There have been a slew of false sexual harassment complaints filed in the recent past. Some of those noteworthy instances are:

(a) AI Air Hostess Komal Singh case : “NCW rules out sexual harassment of AI air-hostess” - http://www.zeenews.com/news579693.html

(b) Lt. Gen. A.K.Nanda case :  “Col, wife cooked up sex charge against general” - http://timesofindia.indiatimes.com/iplarticleshow/6515807.cms

(c) Weightlifting coach falsely alleged with sexual harassment by Karnam Malleshwari : “Weightlifting coach absolved of charges”

- http://www.hindustantimes.com/Weightlifting-coach-absolved-of-charges/Article1-653542.aspx

(d) False sexual harassment allegations against Mr. M.K.Kaushik, former Indian Women’s Hockey coach

- http://www.ndtv.com/article/sports/hockey-sex-scandal-coach-opts-out-of-tours-38771

Some noteworthy instances of false rape are :

(e) Fake rape victims a danger to society: Court – http://articles.timesofindia.indiatimes.com/2012-07-17/india/32713694_1_district-court-delhi-court-real-victims

(f) Take action against girl for filing false rape case: HC to cops -

http://www.indianexpress.com/news/take-action-against-girl-for-filing-false-rape-case-hc-to-cops/931412

(g) Woman, Mother Marked for Lodging ‘False’ Rape Cases -

http://news.outlookindia.com/items.aspx?artid=766976

(h)  Lady who cooks up rape TNN, Feb 18, 2012 -

http://timesofindia.indiatimes.com/city/chandigarh/Lady-who-cooks-up-rape/articleshow/11934223.cms?intenttarget=no

(i)  Medical report rules out rape of two Russians: Hindustan Times, Panipat, June 26, 2012

http://www.hindustantimes.com/India-news/Haryana/Medical-report-rules-out-rape-of-two-Russians/Article1-879042.aspx

There are 2 things consistent in all the above cases

1) All the of these were false and motivated allegations by complainants to fulfill their self interest

2) No action was taken against the complainants making these false allegations, which in turn has emboldened many others to file false complaints

There are huge number of false cases where consensual sex is later turned into Rape to achieve oblique motives: When live-in turns sour, man becomes ‘rapist’ TNN Oct 9, 2012,  http://articles.timesofindia.indiatimes.com/2012-10-09/chennai/34341916_1_live-in-relationships-godman-nithyananda

Police in many cases knows and acknowledges that huge number of cases are false e.g., the report by Pune Police in 2010 [4].

Fines/penalties are imposed on such complainants only in the cases where false cases are filed against influential person e.g.: SC dismisses petition against Rahul Gandhi in rape case

 – http://www.tribuneindia.com/2012/20121019/main3.htm

Such false cases are a menace as on one hand the accused are harassed to no end. On the other, such cases increase pendency in courts and delay in justice delivery to others. So, false cases of sexual assault need to be dealt with strongly. To create a strong deterrent, the punishment to complainant for false case should be equivalent to the punishment had the case been genuine.

Suggestions and recommendations:

I humbly submit that the Criminal Law Amendment Bill, 2012 pending in Parliament would be a good starting point to amend the existing laws on rape/sexual assault to make them gender neutral.

However, this bill does not deal with false cases. Also, the bill seeks to remove the past history of the complainant. It is humbly submitted, that past record and present circumstances of complainant in rape cases are central to help establish false cases like [5]. Otherwise, there is a great risk of miscarriage of justice e.g. in [5] and [6].


1)  Amendment to law should have rational basis and not emotional – the current situation has been turned completely emotional by media, feminists and, gullible Indians who don’t know the harsh “reality” of women-centric laws

2) Rape/sexual assault laws should be made gender-neutral so that boys and men facing sexual assault/ harassment/ rape do also get a listening. Also, women-on-women rape/sexual offence should be covered.

3)  Police should accept the complaint of rape/sexual offence on any gender and convert it to FIR only after preliminary investigation and not mechanically.

4)  VVIP security should be considerably cut down to help increase availability of police for patrolling. This should help in overall reduction in crime rates.

5) “Harsh” punishment as being “emotionally” asked by many sections of the society should be graded based on severity of the crime, circumstances, past history of accused and victim, condition of victim after the crime etc. Harsh punishment should not be de-facto just on basis of complaint as being “emotionally” asked by some sections of society.

6)  As per police records, 70-80% of Rape cases are false. Such false cases clog the courts and deny access to fast justice for genuine victims. So, it is need of the hour to amend laws to hand out Harsh penalty to the complainants filing false cases.

7)  A huge number of consensual sex cases are also getting turned into Rape. This is also happening partly because courts have interpreted that consent based on false promise is rape. Such definition is being exploited at present by women for ulterior motives. It is humbly submitted that this definition needs to be changed and at best, other milder sections of IPC should be attracted as actually these are cases of sex between two consenting adults. 

http://timesofindia.indiatimes.com/city/mumbai/Raped-senior-citizen-admits-to-consensual-sex/articleshow/17684005.cms

8)  Police and Judicial reforms and access to fast track courts is the need of hour not only for Rape/sexual assault crimes but for all the crimes. The anti-social elements of society including thugs, gangsters, politicians, corrupt bureaucrats etc, get emboldened because of slow pace of adjudication and roam free in society.

References

[1]  WHO Report – WORLD REPORT ON VIOLENCE AND HEALTH Report, Chapter 6, Sexual Violence – Page 154 , Box 6.1

[2]  Asian Center for Human Rights report titled “Torture in India 2010”, ISBN : 978-81-88987-24-5

[3]  “POLICE TORTURE IN PUNJAB, INDIA: An Extended Survey” by Ami Laws and Vincent Iacopino, Health and Human Rights Journal, Vol 6 No .1

[4] “Rape on Second thought” – Article in the Pune Mirror  on 28-April-2010,http://www.punemirror.in/index.aspx?page=article&sectid=62&contentid=201004282010042800020376672f460c5&sectxslt=

[5] Lady who cooks up rape TNN, Feb 18, 2012 -

http://timesofindia.indiatimes.com/city/chandigarh/Lady-who-cooks-up-rape/articleshow/11934223.cms?intenttarget=no

[6] Woman to pay Rs 50 lakh for accusing actor of rape, TNN, Dec 11, 2012

http://articles.timesofindia.indiatimes.com/2012-12-11/chennai/35748963_1_mohammedan-law-mansoor-ali-khan-trial-court

[7] 

‘Raped’ senior citizen admits to consensual sex



With Regards,
RAJESH VAKHARIA 
NAGPUR 
MAHARASHTRA

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