The death of a young rape victim in from Delhi has reopened a debate in India about the country’s sexual assault and rape laws, as sweeping changes are being demanded to improve women’s rights in the country.
Compared to the much of the rest of the world, sections of India’s laws covering rape are inadequate and narrowly defined, critics say. And India’s way of delivering justice to rape victims is replete with loopholes, they say.
The debate comes as the Indian government reviews the country’s laws and punishments for sexual assault, in the wake of widespread protests and calls for judicial action. The government has formed a panel of three legal experts, headed by a former chief justice of India, J.S. Verma, to review possible amendments, including those that would impose more stringent punishment. The committee is expected to submit its report by the end of January.
India’s current definition of rape is steeped in outmoded traditions, making the possibility of a conviction unlikely in many cases, human rights activists said. The law, which dates from 1860, has been amended only twice since then, in 1983 and 2003. “There is need for a much broader definition of rape, as is accepted by international standards,” said Meenakshi Ganguly, South Asia director of Human Rights Watch.
Currently, section 375 of the Indian Penal Code is defined as vaginal-penile intercourse against a woman’s consent. Excluded from the law is the rape of a woman by her husband if the woman is above 15 years of age.
“The world is changing, and because there are changes in society we need to modify the definition of the rape law,” said Monica Joshi, a law officer at the Human Rights Law Network in New Delhi who specializes in women’s cases. “The law needs to include things like oral penetration, anal penetration, insertion of a foreign object into a woman’s body, dating rape, marital rape and deal with direct and indirect consent.”
Both Britain and most states in the United States consider marital rape a legal offense, noted Pinky Anand, a Supreme Court lawyer who specializes in cases for women, constitutional law and international law.
Still, there is a “progressive” part of Indian law compared to laws in some parts of the United States and in Britain, said Mrinal Satish, an associate professor at the National Law University in Delhi, who is completing his doctoral dissertation at Yale Law School. In India, the prosecution is required to prove that the defendant knew that the woman was not consenting to intercourse and only relies on the victim’s testimony, not the defendant’s belief, Mr. Satish said.
But this is also where the ambiguities arise. The court, said Mr. Satish, has to be satisfied that the woman’s testimony is reliable. Stereotyping based on certain characteristics, like whether the victim is a virgin or married, plague judgments in rape cases and usually have a negative impact, he said.
The current law also lacks clarity about punishments for a convicted rapist. According to section 376 of the Indian Penal Code, the minimum sentence for a convicted rapist is seven to 10 years, while the maximum sentence is life imprisonment. Gang rape carries a punishment of 10 years to life imprisonment. However, in certain situations a convicted rapist can get away with serving less time.
“The law allows the judge discretion to award a lesser punishment in special cases such as an aged person or a person of unsound mind,” says Ujjwal Nikam, a special public prosecutor for the government of Maharashtra whose expertise is in criminal law.
Sentencing guidelines for judges in India are nonexistent, which could lead to lenient sentences in rape cases, critics say.
“Unlike some other countries, such as the United States and England, India does not have sentencing guidelines, which provide rules and principles for judges to follow while sentencing,” said Mr. Satish. This contributes to the “rampant disparity” in punishments for rape cases, he said.
Legal experts in India are debating increasing the maximum punishment for rape in India, which could include the death penalty.
Some activists and advocates believe that an enhancement in the punishment will create a greater deterrent against rape. “The principle problem with rape laws in the country is that they don’t seem to be serving enough of a deterrent to criminals,” said Ms. Anand. “The rate of rape is horrifying, and the conviction rate is unsatisfactory. Capital punishment is the only answer.”
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However, activists warn of the dangers of imposing the death penalty in rape cases, citing the increased chances that rapists would attempt to kill their victims, among other risks.
Another punishment being considered is chemical castration, the administration of medication designed to decrease libido and sexual activity, which is used on sex offenders in South Korea, Russia and Israel. In the United States, chemical castration is used in California, Florida and Louisiana.
Several legal experts argue there is also need to review the sexual assault law in India. Under section 354 of the Indian Penal Code, sexual assault is described as “outraging the modesty of a woman” – a description considered archaic, subjective and limited by legal experts. “We need to increase the ambit of sexual assault to include harassment, verbal abuse, groping, acid attacks, stalking and cyber crime,” said Ms. Anand.
Punishment for sexual assault should also be increased, activists said. Currently sexual assault crimes carry a maximum punishment of two years, but most convicted criminals can walk away by paying a small fee. “Criminals who repeatedly commit sexual assault if not convicted will then progress to higher crimes like rape,” said Ms. Anand.
A sexual assault bill currently pending in Parliament introduces some of these measures by increasing the punishment for molestation from two years to five years in prison, and sexual harassment from one year to three years.
The law itself is not the only problem. “When it comes to the problems – they lie in the system and how the legal system deals with rape cases,” Mr. Satish said. It’s important that the evidence is built. And if that’s weak, then the court is left with evidence on the bases it cannot convict.”
A draft bill has been submitted to the panel by the ruling Congress Party suggests chemical castration of rapists in rare cases, longer sentences for rape and setting up fast-track courts.
The bill should be named after the Delhi gang rape victim, Shashi Tharoor, the Indian minister of state for human resource development, said on Twitter on Jan. 1. The thought struck a chord with the victim’s parents, according to local media reports. (The woman’s name has only been reported so far by a British newspaper, which said it had the father’s permission. Reports Monday said his permission had not been given.)
Lawyers and activists are hopeful that the national attention garnered by this particular rape will spur the government to action. “Gender issues have not been given primacy up until now, but this time around civil society has raised enough of a voice that it cannot be ignored,” said Ms. Anand.
