India’s Parliament Passes New Law on Sexual Offenses

By Sushila Rao

Even as disturbing reports of alleged rapes continue to trickle in with alarming regularity, India’s Parliament recently passed the Criminal Law (Amendment) Bill, 2013.  The notoriously inert legislative process received a shot in the arm when the brutal rape and murder of a student in Delhi in December 2012 engendered national protests.  A judicial committee headed by a former Chief Justice of India (the Verma Committee) submitted a list of recommended amendments in January 2013, and an ordinance was promulgated to put (some of) these measures into effect temporarily.  The 2013 Bill, once signed by the President, will replace the ordinance.

The 2013 Bill amends provisions of the Indian Penal Code (IPC), the Indian Evidence Act, and the Code of Criminal Procedure relating to sexual offenses. Some of the major, and most controversial, changes include:

  1. A person who, while committing rape, inflicts an injury which causes the death of the woman or causes her to lapse into  a persistent vegetative state, shall be punished with rigorous imprisonment for a minimum term of 20 years (up from 10). This may be extended to imprisonment for life, or even the death penalty.
  2. Rape under the IPC had been interpreted to mean only penile-vaginal intercourse. The 2013 Bill expands the definition of rape to include oral sex as well as the insertion of an object or any other body part into a woman’s vagina, urethra or anus.
  3. “Stalking” and “voyeurism” have been made separate crimes under the IPC.  Stalking, as defined, includes following a woman and contacting, or attempting to contact her, repeatedly despite a clear indication of disinterest. It also includes “e-stalking”, i.e., monitoring her use of the Internet, email or any other form of electronic communication, or watching or spying on her generally. “Voyeurism” is defined as watching or capturing the image of a woman engaging in a private act in circumstances where she would usually “have the expectation of not being observed” by others. A “private act” includes using a lavatory or doing a sexual act. This provision in particular has important ramifications for poor women, who often do not have access to private toilets and sanitation facilities, and can be photographed while performing routine acts such as bathing. Women are also often subject toharassment or assaultwhen they relieve themselves in public, for lack of any private options.
  4. A separate offense addressesacid attacks on women, endemic across South Asia as a tool of revenge against women who have rejected advances by men, or sought divorce. Monetary penalties collected will be applied towards compensation for victims of acid attacks.
  5. “Sexual harassment” has been defined to include “physical contact and advances involving unwelcome and explicit sexual overtures,” making sexually colored remarks, demanding sexual favors, and showing pornography to a woman who does not want to see it.

Critics of the 2013 Bill run the gamut of political and ideological affiliations.  One of the most notable omissions of the 2013 Bill is its failure to criminalize marital rape—as recommended by the Verma Committee—which places India in the company of a select group of nations, including China, Pakistan and Saudi Arabia. In the fervent debate that preceded the 2013 Bill, opponents insisted that criminalizing marital rape would destroy the institution of marriage, and allow women to fabricate claims of rape, since rape within marriage was “difficult to prove.” The remedy espoused by the self-styled saviors of marriage is divorce (oh, the irony!) or prosecution for cruelty, but not for rape. However, such “justifications” ignore the very specific harms induced by the crime of rape, which violates a woman’s physical integrity and sexual autonomy by forcing her to submit to unwanted intercourse.

The age of consent has been set at 18 years by the 2013 Bill, up from 16 years. The rationale? A lower age would encourage consensual premarital sex and “undermine Indian morality.” There is also a clear disconnect between the law and practice—although the law sets the minimum age of marriage as 18 for a woman and 21 for a man, an estimated 47% of Indian womenare married off when younger than 18. The 2013 Bill also sidesteps the hugely controversial issue of rape committed by the armed forces, and does not address rape against men.

All said, the 2013 Bill should be viewed as a mere placeholder in the ongoing struggle against sexual and gender-based violence in India. The most overwhelming prospect is the overhaul of prevailing attitudes to rape and sexual offenses in a populace ostensibly grappling with moral “confusion,” as economic modernization necessitates far-reaching changes in gender roles while social attitudes remain steeped in moral conservatism and misogyny. The son of India’s President—on whose (largely formalistic) signature the status of this Bill currently hinges—had dismissed protestors of the Delhi rape as “dented and painted women.” Elected legislators lamented the anti-stalking and anti-voyeurism provisions of the 2013 Bill as the “death of romance,” to appreciative giggles and much applause. Devising ingenious ways to blame the victim has been elevated to an art form on the Indian subcontinent. Women who cry rape are attacked for their dress, their appearance, their career and life choices, their demeanor while interacting with men (Was she nice?  Was she too nice? Was she arrogant and rude?), and every minute decision that led them to being in the wrong place at the wrong time (Why did she agree to board a suspicious-looking vehicle at night?).

Rather than blame the perpetrators, like Steubenville’s fallen football heroes, rape apologists look to any factor that bizarrely “justifies” sexual assault and violence—from hormonal imbalances caused by consuming fast food to a “political conspiracy” to destabilize the current government. Some suggest—with a straight face—that if there were more prostitutes, the men in India would be “happy” and fewer rapes would occur. Victims who approach the police to register their cases are traumatized and re-victimized by unsympathetic and insensitive questioning. It is noteworthy that the 2013 Bill prescribes punishments for police officers who fail to register a First Information Report of any complaint brought by a victim.

While acknowledging  the inherent limits of the law as an agent of social change, an important bulwark to combating these abhorrent attitudes is an iron-fisted and uncompromising approach in the criminal law. The 2013 Bill can be lauded as a first step in that direction, but must also be recognized as a timorous and reticent one, at best.

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