Posts Tagged IPC Section 376

AIFWA’s recommendations on Criminal Law (Amendment) Bill 2010

Ref. No.AIFW/300410/1                                                                     `                                         30 April, 2010

To,

Shri K C Jain,

Joint Secretary (C & PG),

Ministry of Home Affairs,

North Block,

New Delhi – 110 001

Sub: – Recommendations on “Criminal Law (Amendment) Bill, 2010”

Honorable Shri K C Jain and Members of the Committee,

All India Forgotten Women’s Association (AIFWA) is an organization working towards achieving true gender equality under law. We have done extensive research on gender-based laws in India and abroad. We have conducted many awareness campaigns and seminars, all of which have received wide coverage in the print and electronic media.

Below are our observations and recommendations on the Criminal Law (Amendment) Bill 2010.

Flaws with the present Rape Law (Section 375 of IPC)

Rape, as a common man perceives it, involves a violent act where a man forces himself on a woman and has sexual intercourse with her (as is depicted in the movies).

According to Section 375 of the Indian Penal Code as well as according to the amended Act, a man is said to have committed rape/sexual assault if he has had sexual intercourse with a woman against her will and without her consent.

Even if a woman has given her consent for sex, the man would be deemed to have committed rape when

  • her consent has been obtained by putting her or any person in whom she is interested in fear of death  or of hurt.
  • the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  • at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

In addition, a male having sex with a female under sixteen years of age (eighteen according to the amended Act) is rape regardless of whether the act is done with or without her consent.

There is an inherent bias in the definition of rape or sexual assault itself. According to this law, rape or sexual assault is a criminal act that is committed by a man against a woman. Not only that, the crime is entirely in the mind of the female “victim”.

In reality, there are innumerable cases of celebrities being threatened of rape complaints by fortune-hunting women. Successful businessmen, fashion designers, film producers, publishers, and many other simple, honest, decent men are among those who have been threatened and falsely charged of rape.

Incidents of violent rape are relatively rare, and 90% of “rape cases” involve consensual sex. Legal experts have observed that rape complaints are often made by women who have been jilted, by minor girls who have had consensual relationships with older men, by commercial sex workers who have been shortchanged by their clients and by women who are just “caught in the act”. They have observed instances where women admitted to having consensual sex but claimed to have done it “out of fear”, thus, taking advantage of the loopholes in the law and the credibility they enjoy under the law. As the burden of proof is on the accused man, he has to produce evidence that he had consensual sex with the complainant woman.

Another aspect that stands out in this law, as with many other “pro-women” laws, is the urge to protect the female at any cost, even if it means innocent men are thrown into jail, the judicial system is taken for a ride, and public resources and time are squandered to satisfy the whim of a dishonest, criminal minded, depraved woman.

When a crime is so loosely defined and when the law is severely biased towards the woman, and when the sole testimony of the female “victim” is enough to charge or convict the accused, it is very tempting for a mischievous woman to misuse it. Further, the provision for monetary relief to a victim is a strong incentive for a woman to make false allegations of rape to get compensation.

AIFWA recommends that the following amendments be made to the Criminal Law (Amendment) Bill 2010 to ensure that (a) laws related to sexual assault are gender neutral, (b) all genuine victims irrespective of gender or sexual orientation can seek equal protection and justice under the law and (c) misuse of the law is prevented:

Section 375

  • All references to “Man” and “Woman” must be replaced with the word “Personor Whosoever
  • All references to His and Her must be replaced with the phraseHis or Her
  • All references to  “He” and “She” must be replaced with the phrase “He or She
  • All references to “Husband” and “Wife” must be replaced with the word “Spouse

Sections 375 b and 375c must be amended or a new section (d) must be included to account for injuries and offences specifically against men, such as sodomy and penile injury and attempts to injure male private parts like the penis and testicles.

Section 376

  • All references to “He” must be replaced with either ‘He or She’ or “the Police officer”
  • All references to “Man” and “Woman” must be replaced with the word “Personor Whosoever
  • All references to His and Her must be replaced with the phrase His or Her
  • All references to  “He” and  “She” must be replaced with the phrase “He or She
  • All references to “Women or Children’s institution” must be replaced with “Institution” or “Men’s, Women’s or

Children’s institution

  • Additional punishment must be given to police officers indulging in brutal male sexual assault.

Section 376A

  • All references to “Husband” and “Wife” must be replaced with the word “Spouse
  • All references to His and Her must be replaced with the phrase His or Her

Section 376B

  • All references to “Women or Children’s institution” must be replaced with “Institution” or

Men’s , Women’s or Children’s institution

  • All references to His and Her must be replaced with the phrase His or Her
  • All references to  “He” and  “She” must be replaced with the phrase “He or She

Section 376C

An additional section (iii) has to be included to take into account injuries and offences specifically against boys, such as sodomy and penile injury and attempts to injure male private parts like the penis and testicles.

Section 509

  • All references to “Man” and “Woman” must be replaced with the word “Personor Whosoever
  • All references to His and Her must be replaced with the phraseHis or Her
  • All references to  “He” and “She” must be replaced with the phrase “He or She
    • Punishment should be reduced to fine of Rs. 1000 for first time offenders, imprisonment for one week for second time offenders, one month for third time offenders and one year for repeat offenders.

Distinguish between violent rape, molestation and relationship cheating

Generalizing every sexual offence as rape or sexual assault amounts to trivializing violent rape and prevents genuine victims from getting proper justice. Given the spate of false cases where even consensual sex is being claimed as rape, the law should clearly distinguish between violent rape, molestation and consensual sex followed by dishonoring a promise of marriage. It should be clearly mentioned as to which of these qualify as crimes under the law, and appropriate punishment should be assigned depending on the seriousness of each offence. Equal punishment should be assigned in each case, irrespective of the gender of the offender or victim.

Standards of proof must be made stringent

Due to the credibility given to the complainant’s testimony and the compassion shown towards women, many accused men are subjected to humiliation, mental harassment and the trauma of lengthy trials before they are pronounced “not guilty”. Very often the witnesses turn hostile during trial, making a mockery of the law and the judicial process. Given the severity of the punishment for sexual assault and the irreparable damage caused due to false accusations, standards of proof should be made more stringent both for filing of a case as well as for conviction.

Eliminate monetary relief for complainant

The provision for monetary compensation of Rs 2,00,000/- for filing a complaint of rape/sexual assault should be repealed, as it serves as a strong incentive to convert consensual sex into rape as per the complainant’s convenience or whim.

Sections 53A, 114 and 146 of the Indian Evidence Act should be struck down

Sections 53A and 146 of the Indian Evidence Act turn a blind eye to the importance of antecedents of the alleged victim. A person accused of rape cannot expect to get a fair trial if all of the relevant evidence of the alleged victim’s sexual history is not presented before the court.

While the Universal Declaration of Human Rights proclaims that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law”, Section 114 of the Indian Evidence Act presumes that the accused man is guilty until proven innocent, thus violating the presumption of innocence and the principles of fair trial guaranteed under Articles 20 and 21 of the Constitution of India, in addition to defying the Universal Declaration of Human Rights.

Hence the sections 53A, 114 and 146 must be completely struck down.

Include a VERY strongly worded “Misuse Clause”

During the drafting of the Sexual Harassment Bill, the Law ministry strongly favored the retention of the misuse clause and provided the below response to the request for deletion of the misuse clause from some groups.

Retention of clause 12 is essential to the check false and malicious complaints being filed and giving false evidence. If clause 12 is omitted, it may lead to situations similar to those being faced in the respect to Domestic Violence cases, Dowry harassment cases etc. In order to have a balanced, neutral and gender neutral, it is important to retain the clause 12.  Further our view is in consonance with the view of Department of Legal affairs in this regard, so we may retain clause 12.”

Every single false case in the judicial system results in less and less resources reaching geniune victims. Therefore, it is mandatory that a much stronger misuse clause MUST be added even in the law against Sexual Assault as follows:

Whosoever deliberately misuses any of the above sections to cause harm, trauma or injury or uses state machinery in any way to harass the opposite party will be sentenced to a term no less than the term of punishment specified had the offence been proved and also be forced to pay a fine

Sincerely,

President

All India Forgotten Women (Regd.)

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