Guarantee Greater Conviction Of Sex Offenders
By Jamia Teachers’ Solidarity Association
06 January, 2013
We are writing on behalf of Jamia Teachers’ Solidarity Association, a civil rights group of University teachers based in Delhi. We express our deepest and heartfelt anguish at the death of the young paramedic who lost her life following a brutal sexual assault. We are also disturbed by the rising chorus for retributive punishment that militates against the Constitutional and modern principles of jurisprudence. However, horrendous this event, and no matter how great a revulsion it has evoked in all of us, changes in law must adhere to the principles of natural justice. In this light, we submit the following suggestions for your consideration:
1. The low rate of conviction in rape cases is a cause for concern and needs to be addressed on an urgent basis. The swiftness and sureness of punishment to the perpetrators needs to be ensured rather than the quantum of punishment. As several women’s groups have argued, it will be much more difficult for prosecution to prove the case beyond reasonable doubt, if the punishment for rape is the same as that of murder.
2. The process of trial must be made more gender sensitive:
A) The demeaning two-finger test must be immediately banished from the legal process.
B) The proceedings must be held in camera. A sheet / curtain must protect the complainant from the accused and the defence lawyer to eliminate intimidation;
C) The Judges must ensure that unnecessary and extraneous cross-examination is not allowed to demoralize the complainant.
3) Expanding the definition of Sexual Offences:
A) Rape is defined exclusively as penile penetration of the vagina in Section 375 IPC ignoring penetration through several other objects routinely used especially in mass sexual violence. Threatened Existence: A Feminist Analysis of the Genocide in Gujarat has documented the use of iron rods, sticks, swords to penetrate women as well as the systematic torture and mutilation of women’s bodies.
B) A whole range of sexualized violence such as molestation, parading, stalking, stripping, are not recognized as serious violations by our legal system. While stalking and molestation are laughed off as ‘eve teasing’ (indeed trespassing is deemed a more serious crime); stripping and parading women naked are often tools of punishment by the powerful. For example, Priyanka and Surekha Bhootmange were paraded naked before being murdered by the politically dominant caste in Khairlanji Laxmi Oroan was stripped by a group of hooligans when she was marching on the streets of Guwahati seeking more rights for the tea tribes of Assam.
4) Audit of Victim compensation schemes: The scheme launched under 357 A of CrpC 2008 are floundering because of lack of funds and the cumbersome process, which demeans the victim all over again. Newspaper reports suggest that Rajasthan has not received funds from central government; and only four victims received any compensation in Delhi in the year 2012. There should be an audit of all state legal services authorities to check how many applications were received and how long it took for the authority to process them, and how many finally received the compensation amount.
5) Passage of Communal Violence Bill: It has been amply documented that women’s bodies are subject to violation in a targeted manner in situations of communal violence. A strong bill to bring to justice perpetrators of mass sexual crimes needs to be in place.
6) Lastly, the demand for amending the Juvenile Justice Act, 2000 to bring down the limits of Juvenility, must NOT be ceded to. JJA 2000 is in consonance with the UN Convention on Rights of Child, to which India is a signatory. It is not a lenient legislation, but an age appropriate legislation. Though, JJA 2000 concentrates on the juvenile offender rather than the offence, it has provisions for special treatment of juveniles who have committed serious offences, for example, section 12 of JJA 2000 provides for situations in which bail may be denied to a juvenile; and section 15 of JJA 2000 provides for a range of orders which can be passed depending on the offender and the offence, including incarceration in a Special Home for a period that may extend to three years.
Public protests and media are driving for a ‘tough law’ with harsh punishments and dilution of existing laws. Harsher punishments will not lead to higher convictions; indeed, the victim will be under greater pressure to not file complaints, and the police more reluctant to pursue the case, if death penalty is the punishment. Castration, whether surgical or chemical, derecognizes the fact that sexual crimes are not driven by sexual desire but are an expression of power and misogynist hatred. We therefore, strongly urge the Commission to reject the demands for castration and death penalty and instead institute mechanisms to ensure a more gender sensitive process of registration and investigation of complaints and trial. This can be the only guarantee of greater conviction of offenders.
Manisha Sethi (President)
Adil Mehdi (Secretary)
Ahmed Sohaib (Joint Secretary)
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