The Criminal Law Amendment Bill 2010, being proposed to bring about changes in the criminal laws with respect to protections against sexual assault, has been a subject of discussion and popular misinterpretation in the recent past. While the move by the government to re-examine the law on sexual assault is long overdue and the opening up of this subject a welcome step, it is necessary to underscore the concerns raised by rights advocates across the country.
Human rights groups combating sexual assault, women's groups and groups working on child rights have come together to reflect on the extent to which this bill addresses concerns on the ground; to identify major gaps; and propose an alternative that might eliminate the gaps and ambiguities to the maximum extent possible. This critical engagement with legislative drafting is especially important in view of the fact that it has taken 30 years to put the issue on the floor of Parliament a second time, and 10 years after the Law Commission of India made fairly concrete recommendations in its 172nd report, 2000.
In the 30 years since the Mathura and Rameeza cases launched the first major campaign for reform of rape laws in the early 1980s, the experience of sexual assault that has been reported has changed dramatically and in troubling ways. If impunity for armed forces personnel accused of assault sets up a major hurdle to bringing justice to survivors (Manipur and Kashmir), sexual assault during episodes of collective violence (Gujarat and Kandhamal) or as part of caste atrocity (Rajasthan and Khairlanji); custodial sexual assault on intellectually challenged women (Chandigarh); on transgenders (Karnataka); on children — girls and boys; and sexual assault on and/or humiliation of men in custody and situations of collective/targeted violence have posed serious problems for rights advocates in the absence of provisions in the law to prosecute perpetrators.
These concerns that emerged in the course of combating rights violations have given birth to the effort to think through — collectively — parameters for a law on sexual assault that will be comprehensive to the maximum extent possible. The large and diverse group engaged in this exercise is, of course, aware that this is no easy task, and is aware also of the fact that both the process of drafting provisions and canvassing the draft will be educative both for those engaged in it and for those who must receive it — in government, Parliament, institutions of justice and communities. There is also a hope that the deliberations around the new legislation will not be trivialised and made a mockery of in Parliament and the media like the women's reservation bill debates.
The entire effort to reach this point is over a decade old, and begins with the petition to the Supreme Court, on whose directions the Law Commission put out the 2000 report. The key themes in the effort that has been under way in the current drafting phase for three months are: (a) To set out a statement of objects and reasons that will provide an interpretive guide to prosecutors and the legal fraternity; (b) to formulate tentatively the definition of sexual assault and aggravated assault that effects a clear shift from the limitations of the existing formulations in the IPC on outraging modesty and rape; (c) to think through the gradation of punishments, and procedural and evidentiary standards that reflect the gravity of the experience of sexual assault and provide just redress without putting the complainant on trial.
Broadly, the ongoing effort to formulate a new law aims at situating sexual assault within the constitutional right to life, dignity and bodily integrity along with evolving international jurisprudence that sees rape as a form of torture when committed in custody or in situations of occupation/conflict. It also attempts to set out the social contexts within which such violence occurs, underlining the fact that it is always an exercise of power that is used to target women, children and persons who are socially vulnerable. Coercive circumstances — economic, political and social dominance, positions of authority and situations of custody ranging from state institutions to the family — enhance the power of the perpetrator. An important part of the discussions focusses on the fact that sexual violence occurs along a continuum that ranges from sexual harassment to aggravated assault. For this reason there has been some discussion (as yet unresolved) on whether the title of the chapter should read ‘sexual violence' or ‘sexual assault.'
Drawing on the experience of advocates and groups pushing relentlessly for prosecution of those involved in mass crimes in Gujarat in 2002, the debates recognise the fact that sexual violence is not limited to penetration but includes sexual humiliation, which has aggravated consequences for the victims and their families. The category of sexual humiliation as an assault on bodily integrity and dignity is one that needs to be articulated carefully and in a manner that does not fall into the trap of “honour discourse” that has defeated women's rights to equality for decades.
Victims have faced an uphill task of proving that they did not consent to sexual intercourse and that they were in fact assaulted. The first battle was to remove a consideration of past sexual history as a factor that establishes the credibility of the complainant. The second major battle was to determine what constituted ‘resistance' to rape. In providing support and redress to victims, rights advocates have found that coercive circumstances often disable any possibility of offering resistance, even where consent is withheld. What is the substantive meaning of consent? While it simply means “unequivocal voluntary agreement,” can it be weighted when the victim is in coercive circumstances? How is the issue of consent dealt with in the case of a woman who is “affected by an intellectual, mental or physical condition or impairment of such a nature and degree that she cannot consent or refuse to consent to the activity?” Drafting protections against child sexual assault poses the biggest challenge to this effort.
In dealing with aggravated sexual assault, the pinning of command responsibility on a public servant would lead to more effective exercise of due diligence in preventing the crime. Given the range of cases before us, it is important to study the failures of omission and commission, in order to delineate clearly what command responsibility consists of in cases of aggravated sexual assault.
Broadly, rather than viewing ‘sexual assault' as a mechanical substitute for ‘rape' under Section 375 of the IPC, the effort of rights groups has been to think through the feasibility of formulating a chapter on sexual violence/atrocity that will define a range of such violence in a manner in which the focus shifts from the penetrative logic of definitions hitherto used to the assaultive nature sexual violence. Effecting this shift has implications for procedural law and the law of evidence as well — carefully calibrating the shift in burden of proof and eliminating the two finger test, for instance — both of which are being examined alongside the penal code provisions, with a clear understanding that procedural and evidentiary guarantees upholding universal human rights standards will not be derogated in the course of redefining the law on sexual assault.
( Kalpana Kannabiran is a sociologist based in Secunderabad .)