20.1.12

Times of India

Government plans to make rape law gender neutral

(The government has proposed that the offence of rape be made “gender neutral” by amending the law so that sexual assault on men can also be proceeded against under the same statute.)

NEW DELHI: The government has proposed that the offence of rape be made "gender neutral" by amending the law so that sexual assault on men can also be proceeded against under the same statute. It also plans to make specific laws on stalking and acid attacks on women.
The change in the rape law is being drafted by the ministry of women and child development (WCD) as part of the criminal law (amendment) bill, 2011. The bill will replace the word `rape' with sexual assault, and also propose suitable amendments to make the law gender neutral.

The bill can prove to be path-breaking as sodomy is punishable under Section 377 of the penal code. The section was struck down by the Delhi High Court in 2009 while dealing with a petition filed by an NGO fighting for gay rights, but the court also held that non-consensual sexual acts remain an offence.

The amendments come in the light of increasing number of sexual crimes reported against women as well as men. The National Crime Records Bureau recorded an increase of 4.8% of crime against women, with 2.13 lakh cases reported in 2010.
The ministry has recommended that a new Section 326A (hurt by acid attack) and Section 326B (attempt to throw or administer acid) that deals with offenders who burn or disables a person or causes grievous hurt be made punishable with imprisonment of 10 years, extendable to life term and a fine up to Rs 10 lakh. Similarly, attempt to throw acid can attract imprisonment of five-seven years.
These amendments are likely to be widely welcomed given the incidence of women being targeted by acid attacks by persons whose advances have been rejected. Courts have often expressed anguish over the brutal and vengeful nature of the crime and called for exemplary punishment for offenders.

Fines collected shall be given to victims of acid attacks. The provision is expected to compensate the victim for mental and physical trauma as well as medical expenses. It is felt that such measures can augment state assistance.

Amendments have been proposed to IPC sections to replace the word `rape' with `sexual assault'. The bill also proposes to introduce a new Section 509B in the penal code to make stalking punishable with maximum imprisonment of seven years. Stalking will include following a woman repeatedly, contacting her through phone, mail or any other form of communication or loitering or watching the place where she works or lives.

The ministry is planning significant changes in Section 375 dealing with sexual intercourse between husband and wife. The current provision says the age of the wife should not be below 15 years. It has been recommended that this be increased to 16 years. The legal age of marriage is 18, but courts have dealt with "age of consent" in cases where a man is accused of statutory rape. The conflict arises when the girl has consented, although below marriageable age, but her relatives have filed charges of rape.

The bill also provides for higher penalties for molestation, increasing punishment from one to three years in jail and a fine of at least Rs 1,000 for ``outraging the modesty of a woman". The ministry has recommended retaining Section 377 of the IPC since the HC judgment for decriminalizing same gender sexual intercourse has been challenged in the Supreme Court.

Other provisions include stressing that evidence not take into account character and previous sexual experience of a person with the issue of consent or quality of consent. If recommendations are accepted it will mean a victim cannot be allowed to be cross-examined in case of sexual offence nor will s/he be confronted with the accused.
The changes are part of a proposal moved by the ministry of home affairs to amend the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act on provisions pertaining to sexual assault. A high-power committee that included representatives' from home, women and child development and law ministries and National Commission for Women (NCW) examined the amendments.
The draft Cabinet note was circulated to ministries for their comments in December, and put before the Union Cabinet for its approval.

TIMES VIEW The proposal to widen the definition of rape to make it gender neutral is welcome. It serves to bridge a long-felt gap in the statute books which made it difficult to deal with sexual abuse, in particular, of young boys. We also hope that the government and lawmakers will realize that this is not the only law that's out-dated. It's time for a comprehensive review of all laws to weed out those which are obsolete, update those which need to be brought in sync with the times and introduce fresh ones that changing technology and societal norms make necessary.