Defining sexual assault

The Hindu, Sunday Magazine, May 30, 2010

The Other Half

KALPANA SHARMA

The sentence in the Ruchika Girhotra case is a small step in rectifying an anomaly in the law. The draft Criminal Law (Amendment) Bill 2010 now seeks to tighten laws dealing with sexual assault…

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What is important is that women are made aware of what their rights would be if the law is passed.

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The enhancement of the sentence of former Haryana DGP S.P.S. Rathore, charged with molesting 14-year-old Ruchika Girhotra, from just six months to one and a half years, is a very small step in rectifying the glaring anomaly in the law that allowed him to almost get away with a serious crime. In the absence of the popular furore over what happened, and the determined efforts of the young woman's friends and family, it is possible that Rathore would have continued to hold office and escape the jail sentence awarded to him. But even as many will believe that 18 months is hardly adequate punishment for a crime that led to a young woman taking her own life, the sentencing is the beginning of an important process of change in our antiquated laws dealing with sexual assaults of all kinds.

Ruchika's is only one case. There are hundreds of such cases in India that never reach the point of conviction. And many more incidents that are never even reported. But because more such cases are coming out in the open, the demand for a change in the law has built up to the point that the government has finally taken note.

Change, finally

The draft Criminal Law (Amendment) Bill 2010 aims to tighten current laws dealing with rape and sexual assault. This has happened not because of a sudden flash of enlightenment by those who make laws but because of the sustained campaign by women's groups for well over three decades. The fact that such a law is finally on the anvil illustrates yet again how important it is that civil society groups exert pressure and provide detailed alternatives when opposing existing laws.

For, in this case, what women's groups have done is not just to point out the obvious, that the existing provisions in the Indian Penal Code (IPC) dealing with rape are antiquated (based on a 19 {+t} {+h} century law) and ineffective but have also submitted to the government detailed suggestions on how these provisions can be changed. The National Commission on Women has also provided the government with a draft law. Such interventions ensure that the discussion does not remain in the area of generalities but actually deals with the specifics.

But here is where the problems often begin. While civil society groups work on changes based on their actual experiences of dealing with cases — such as those of rape, sexual assault, child abuse etc — the bureaucrats who draft laws appear to have a different set of concerns. So some of the suggestions are incorporated but loopholes are allowed to remain that will permit offenders to slip through.

Yet, despite its apparent weaknesses, the Criminal Law (Amendment) Bill 2010, also popularly referred to as Sexual Assault Bill, will herald important changes in the sections of the IPC dealing with rape. It has enlarged the definition of rape to sexual assault, thereby bringing under the aegis of the law many other forms of assault on women that so far have not been considered rape and that have allowed offenders to get away with the minimum punishment of just two years. This is a welcome change. (The entire draft is available on the Union Home Ministry's website: http://mha.nic.in/writereaddata/12700472381_CriminalLaw (Amendment)Bill2010.pdf)

It has also specified that such a crime would be treated more seriously when the offender is a police officer, a public servant who has taken advantage of his official position, a person on the management or staff of a jail or remand home, a person on the management or staff of a hospital, the relative or a person in a position of trust or authority etc. The punishment would be a minimum of 10 years extending to life. Clearly, if such a provision had been in place earlier, Rathore would never have escaped with such a light sentence.

The draft law has also included specific provisions on child abuse that should be welcome. Groups working on children's rights have been demanding a separate law dealing with this but lawyers point out that having specific provisions within the IPC helps as the police usually act on the basis of these provisions. Thus the punishment for sexual abuse of a minor (defined as under the age of 18) will now be a minimum of seven years extending to life.

Women's groups are not entirely happy with the version of the law presented by the government because they hold that it is poorly drafted, is vague in some parts and could provide offenders a window through which they could escape. Their detailed responses have been sent to the Home Ministry and one hopes that they will be taken on board seriously.

What is important at this stage is that these provisions in the law are debated and that people, and particularly women, are made aware of what their rights would be if the law is passed. In India, a major problem is the absence of accurate information on important laws. And the media does not always help as the manner in which these issues are reported leads to a misunderstanding of the law.

Skewed balance

For example, instead of looking more closely at provisions in the draft law, some newspapers have been emphasising the opinions of little known groups that insist that the law will victimise men. This is an amazing form of “balanced” reporting where you place on an equal footing the very real problem facing millions of women who have been sexually assaulted, and their rights, with small, fringe “men's rights” groups who are given equal or sometimes even more media space.

Instead, what we need to consider is why the graph of assaults against women has been steadily climbing in this country, and why the rate of conviction remains pitifully low. According to the latest figures for 2008 assembled by the National Crimes Records Bureau, there has been a five per cent increase in crimes against women — from 1,85,312 in 2007 to 1,95, 856 in 2008. These crimes include rape, molestation, kidnapping and abduction of girls, sexual harassment, trafficking (defined as “importation of girls”) and cruelty by husband and relatives. The last has the largest number of recorded cases — 81,344, followed by 40,413 of molestation, 22,939 of abduction of girls, 21,467 of rape and 12,214 of sexual harassment.

It goes without saying that a change in the law by itself will not reduce crimes. But in this instance, the important expansion of the term “rape” into the much more specific term of “sexual assault” is long overdue. The real challenge, if and when the law is tabled in Parliament, and hopefully passed, will be how well it is implemented.