The old Penal Code exempts it as an offence if a wife is not under 16
Opposing the death penalty for those guilty of rape, women groups have demanded that marital rape, stalking and stripping be regarded as serious offences.
The old Penal Code and the proposed amendments exempt marital rape as an offence if a wife is not under 16 years of age. This exemption, totally and unreasonably, ignores the long standing demand of the women’s organizations and groups to recognize marital rape as a serious offence, women’s groups have said in a representation to the Justice Verma Committee that was set up in the aftermath of the horrific gang-rape in the Capital last month.
“We also recommend deletion of Section 376 A as we see no reason why the punishment for sexual assault on a separated wife should not be the same as ordinary sexual assault,” the representation has said while suggesting that consent be also defined as the unequivocal voluntary agreement by a person to engage in the sexual activity in question.
One major reason for defining consent in this way is to distinguish consent from mere passiveness. Case law concerning rape is replete with examples in which it has been said that the victim has consented when she has merely remained passive due to a variety of reasons, the groups have said.
The joint representation was given by the All India Democratic Women’s Association, All India Women’s Conference, Centre for Women’s Development Studies, Joint Women Programme, Guild of Service, All India Dalit Mahila Adhikar Manch, National Federation of Indian Women, Young Women’s Christian Association of India, and Muslim Women’s Forum.
“We have been suggesting that stalking be recognized as a separate offence in the IPC and that an appropriate punishment should be prescribed for it up to 5 years. By not recognizing stalking as a crime, most of the perpetrators manage to escape prosecution and can only be charged under Section 509 IPC which is inadequate.” Similarly, stripping a woman should also be recognized as a serious sexual offence, the representation says.
Pointing out that relief and rehabilitation of the victim has become an urgent necessity in all cases of sexual assault and other violent crimes like acid attacks, women’s groups have said that statutory schemes to provide immediate medical and other relief should immediately be put in place in all States. The scheme should provide for immediate monetary relief to be given to the complainant whether her case is pending in court or not. The amount that is provided should not be subject to an upper limit as has presently been suggested by the National Commission for Women as some victims of violence like those who have suffered acid attacks may need extensive and repeated medical attention apart from other relief. Women subjected to sexual and other forms of violence should be provided with monetary relief during the time they are not in a position to work or earn. For those who can work, a government job should be provided. The Scheme should be administered by a Board which has been properly selected.
The Criminal Law Amendment Bill, 2012 introduced by the government in the Lok Sabha seeks to amend the laws relating to Sexual Assault in the Indian Penal Code. The changes proposed in Section 375 broaden the definition of rape and include all forms of penetrative sexual assault. The section has, however, been made gender neutral which is a reversal of what the government had proposed in 2010.This seems to imply that women could sexually assault men for which there would be no empirical evidence at all. The section would allow men to file false cases of penetrative sexual assault against women. The proposed government Bill in 2010 rightly made the law gender specific and the accused persons could only be men while the complainants/victims were women.
According to the women’s groups, in clause (b) of Section 376(2), sexual assault at the instigation of or with the consent or acquiescence of a public official or other persons acting in an official capacity should also be added as an aggravated form of sexual assault. This clause should also be added in the new section which should deal with aggravated forms of non-penetrative sexual assault.
In both the AIDWA proposals and the NCW proposals, clause ‘Sixthly’ under Section 375 defines statutory rape as rape of a complainant less than 18 years of age. However, taking note of the social reality that there are many instances of consensual sexual activity between young girls above 16 years of age and young boys and that it would lead to injustice if these young boys were prosecuted for rape, the women’s groups have suggested an amendment by way of a proviso to the clause to exempt such consensual activity from the purview of statutory rape, provided the accused person is not more than 5 years older.