Essay on Law Relating to Rape Cases in India (2029 Words) !
A recent judgment handed down by the Shivpuri (Madhya Pradesh) District Judge is likely to stir up debate in legal and medical fraternities regarding gender identities in rape cases. The learned judge convicted the accused under section 376 I.P.C. even as the defence counsel argued that the rape victim was not a woman since she had no vagina from birth, implying that she was a eunuch. The decision has far-reaching import for ‘third gender’.
The defence argument was that since there was no vagina, there was no penetration of it and thus the offence of rape as charged by the prosecution against the accused Ganesh Ram of village Lukwara (Madhya Pradesh) was not made out.
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The convict had forced entry into the house of the victim in the dead of the night and raped her last year i.e., in 2003. The 25 years old victim had been abandoned by her husband who had remarried. She had been living with her brother. Besides rape, the accused had also assaulted her physically.
The learned Judge sent a copy of the judgment to the High Court of Madhya Pradesh with a request to forward it to the law Ministry, Government of India, as she had found that the case had raised the issue of redefining gender identities so as to include transgender and trans-sexual persons within the ambit or have a gender-free definition of the offence of rape. She observed, “This will prevent the violation of essential human dignity and freedom through the imposition of disadvantaged, stereo-typing, or social prejudice of persons born like the victim in this case.”
The Judge concluded in her judgment that during the medical examination, no suggestion whatsoever was given that the victim was not a woman, as she had no female organs or that she was a transgender. The doctor opined that her injuries may be due to forcible intercourse. District Judge Renu Sharma noted.
“Merely because the doctor found that there was a hole and instead of vigina, there was a passage and uterus and ovaries could not be visualised, does not automatically take the victim out of the definition of woman for the purpose of Section 376 of IPC”.
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After citing several international judgments, she observed that when the criteria for defining male and female are looked at more closely two important facts become obvious. First, sex is definable at many different levels, some biological, and some social and some psychological. Second, a significant’ population is not entirely covered in every aspect of or every level of definition.
The learned judge noted that the existing definition of rape under Section 375 of the IPC does not adequately address nor sufficiently recognise the gender-specific nature of such crime. Today, the determining factor in gender identity is not only chromosomes or the genitalia but the ‘markedly gender differentiated brain.’
The Judge sentenced the accused Ganesh Ram to ten years of rigorous imprisonment under Section 376 I.P.C. and a fine of Rs. 2000/- and three years RI and a fine of Rs. 2000/- under section 325 and one year’s RI and a fine of Rs. 1000/- under Section 451 IPC. The sentences were to run concurrently.
The Supreme Court in Bodhisattwa Gautam v. Miss Subhra Chakraborty, explained the socio-legal implications of rape which according to it, “is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. Rape is, therefore, the most hated crime.
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It is a crime against basic human rights and is also violative of the victim’s most cherished fundamental right, namely, the right to life as contained in Art. 21 of the Constitution.” The Apex Court further observed, “To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.”
The Supreme Court in its decision in Delhi Domestic Women’s Forum v. Union of India, took a serious view about the plight of woman and the impact of sexual violence on her life. The Court laid down the broad parameters in assisting the victims of rape during investigation and trial of the case.
The guidelines provided that the victims of sexual assault will get legal assistance from a competent lawyer right from the stage of investigation by police till the conclusion of trial in the court. It will be the duty of the police authority to inform the victim of her right to engage an advocate for legal assistance.
The advocate so engaged, shall not only render professional service, but also assist the victim in getting help from other agencies like mind-counselling or medical help etc. The anonymity of the victim must be maintained throughout from the beginning of investigation till the conclusion of trial.
The victim must be awarded compensation by the Court when the case ends in the conviction of the offender. The Court further directed that the Government must set-up Criminal Injuries Compensation Board for awarding compensation to victims even when the case ends in acquittal of the accused persons.
Despite innovation of Section 114-A in the Evidence Act by the Amendment Act No. 43 of 1983 regarding presumption as to absence of consent in certain prosecutions for rape, the situation has hardly improved. A large number of raped women still fail to report to the police because they are embarrassed due to insensitive treatment by the doctors, the law enforcement personnel and/or the cross-examining defence lawyers.
Emunerating the defects in the present system of handling of rape cases, the Supreme Court noted:—
(1) The complaints are handled roughly and are not given the attention as is warranted;
(2) The victims, more often than not, are humiliated by police;
(3) Victims invariably find rape trials a traumatic experience;
(4) The experience of giving evidence in Court has been negative and destructive;
(5) Victims consider the ordeal of trial worse than the rape itself;
(6) Prolonged proceedings cause psychological stress on rape victims.
In this background the Court laid down the parameters for assisting the victims of rape and recognised their right to compensation.
The Supreme Court in State of Himachal Pradesh v. Asha Ram, reiterated that the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. The Court identified the following factors as the rationale for this rule:—
(1) A girl or women in the tradition bound non-permissive society would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred;
(2) She would be conscious of the danger of being ostracised by the society or being looked down by the society including her own family members, relatives, friends and neighbours;
(3) She would have to brave the whole world;
(4) She would face the risk of losing the love and respect of her own husband and her matrimonial home will be shattered;
(5) If she is unmarried, she would apprehend that it would be difficult to secure her alliance with a suitable match from a respectable and acceptable family;
(6) It would inevitably and invariably result in mental torture and suffering to herself;
(7) She would always be haunted by the fear of being taunted by others;
(8) She would be extremely ashamed and embarrassed to narrate the incident on account of her upbringing in a tradition bound society where sex is a taboo;
(9) She would not be inclined to give publicity to the incident due to the fear of her family name being tarnished;
(10) Even the parents or husband of the sex victim would more often than not, want to avoid publicity on account of fear of social stigma on family name and family honour.
(11) The fear of victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence may haunt in her mind.
(12) Above all, reluctance to face odd interrogation and Court trial as also the cross-examination by the Counsel for the culprit and the possibility of being disbelieved also deters her from seeking justice through law court.
In the instant case, the father himself raped her young daughter which itself indicated the gravity of the offence. Ordinarily the offence of rape is grave by its very nature but it becomes graver when perpetrator of crime is father against his own daughter and obviously falls in the category of “rarest of rare” cases warranting stringent punishment. The Supreme Court, therefore, enhanced the punishment from 5 years to that of imprisonment for life and the fine of Rs. 1,000/- to Rs. 25,000/-.
In yet another case i.e., State of Kerala v. K.M. Anthony} the Supreme Court held that in rape cases against girls and women, the demand of corroborative evidence from the victim is like adding fuel to the fire and no rapist should be allowed the benefit of the obsolete and outdated rule.
In the instant case, accused K.M. Anthony committed rape on a ten year old girl in presence of her disabled brother on 10th November, 1986. He was convicted for the offence of rape by the trial Court and sentenced to 16 months imprisonment. In appeal, he was acquitted by the High Court of Kerala and the State of Kerala filed an appeal against this acquittal, before the Supreme Court.
Allowing the appeal, the Apex Court restored the order of the trial Court and held that in order to uphold morality and dignity of women in the society, the rapists must be sternly dealt with and evidence produced by the victim should not be looked with suspicion unless there are valid reasons to do so.
The Court further observed that as far as possible the court should apply judicial mind to the story narrated by the victim of rape and judicial formalism should not be an impediment in ensuring justice to her nor should she be treated as an offender in course of trial proceedings.
It would thus appear that the social stigma has a great devastating effect on rape victims and at the same time it is a violation of her right of privacy. Publication of the name of the victim of rape is, therefore, prohibited. Since public disclosure of private facts can result in severe psychic distress, publication or broadcasting thereof would amount to breach of privacy.
As such, sexual life of a person is pre-eminently a matter for protection under ‘right of privacy’. Thus, in the American case of Flourida State v. B.J.F, the police had released the name of a rape victim and a newspaper reprinted the information in violation of State law. The victim sued the newspaper for damages. Recovery was, however, denied to the victim on the ground that government had already made the name publicly available.
It hardly needs to be stated that a large number of rape cases remain unreported because of the social stigma attached to the victim of rape and the humiliation and mental torture which she has to undergo during the court trial. Particularly, in case of unmarried girls who are victims of rape, their marriage becomes a real problem for them as also to their parents.
It is interesting to note that according to the available figures the reported rape cases of unmarried girls exceed married women as victims and married men exceed unmarried boys as offenders.
As regards enforcement aspects of law relating to rape, particularly when the offence is against a child or a young girl, certain precautions at the trial stage may prove useful in extracting correct information about the crime and the criminal.
Total privacy at the time of recording the statement of the victim, her handling by women police officer and reassuring her safety and security from the offender, would make the victim more comfortable and provide meaningful evidence in rape trial. In rape trials, anonymity of the victim must be maintained and legal assistance should be provided to her at the police station itself.