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Why Indians are demanding reforms to sexual abuse laws

India’s sexual abuse laws have long been criticised. Concerns regarding gender neutrality, marital rape, and the death penalty have occupied centre stage now. Conditioned to the norms of a patriarchal society, will survivors ever get justice?

Trigger Warning: this article contains mention of rape and child abuse.

Did you know that only women can be recognised as survivors of sexual abuse in India, and only men can be recognised as aggressors?

In addition, assault of a trans individual is treated as a petty offence, with a minimum sentence of only six months. For better context, in case of a cisgender woman, the same crime carries a minimum sentence of seven years.

These clear gender biases and disparities are a big reason why people have been demanding a change to sexual abuse laws, though outrage extends beyond just different punishments for different people.

The death penalty is still given in India for certain, extreme sexual crimes, and has been a divisive issue for many years. Some deem death to be an appropriate punishment for these crimes, while others simply view it as an ineffective deterrent that should be retired from the law.

Many aspects of these legislations – and sexual abuse laws in general – are frequently criticised by large sections of India’s population, with many demanding change or reform in some way. What is the outrage all about and what are the specifics? Let’s take a more extensive look.

Why is Section 375 so controversial?

Section 375 of the Indian Penal Code basically says that the act of sex by a man with a woman, if it was done without her consent, is punishable. There are exceptions to this rule that cause controversy in particular.

In 2012, a medical intern was gang raped and murdered by a group of men in a moving bus. The victim of this incident is posthumously called ‘Nirbhaya’, which means ‘fearless’ in Hindi.

The Nirbhaya incident changed our attitude towards sexual crimes, and we started questioning the safety of women in our country like never before.

Soon, this led to the passing of the Criminal Law (Amendment) Act 2013; it increased jail terms in most sexual crimes and provided the death penalty in cases that cause death or leave the survivor in a vegetative state.

It also penalised offences such as criminal force on a woman with intent to disrobe, voyeurism, and stalking.

First off, as per the law, intercourse with a girl when she is under eighteen is considered rape. In fact, the age of consent in India is eighteen (for both boys and girls).

Even a teen couple engaging in consensual intercourse is technically committing a crime. Hence, some are calling for the law to acknowledge that teens should have the right to express their sexuality.

Secondly, you notice how all the aforementioned provisions specifically address the survivor as ‘her’?

That’s because there is no legal provision to recognise men as victims of rape. After the Nirbhaya case, the Justice Verma committee was formed to review the existing sexual assault laws. They had recommended that men be recognised as possible rape victims too, but it was never acted upon.

Thirdly, sexual intercourse – with or without consent – by a man with his wife is not classed as rape. This means that marital rape is not a crime, and it’s arguably the most questionable aspect of the reforms movement.

Nevertheless, courts can actually challenge the constitutionality of this legal stance. As a matter of fact, several judgements have noted that not recognising marital rape as illegal is bizarre and unacceptable, though the exemption still hasn’t been removed.

Discussing the child abuse problem

Statistics show that a child is sexually abused in India every fifteen minutes. A recent study found that the national conviction rate for child rape is as low as 27.2%.

Under Section 7 of the Protection of Children from Sexual Offences (POCSO) Act, sexual assault is when someone with sexual intent touches the genital areas of a child or does any other sexual act that involves physical contact without penetration.

In January 2018, an eight-year-old girl in Kathua, Jammu & Kashmir, was abducted, raped, and murdered by a group of men; this led to massive public outcry.

Soon, the Criminal Law (Amendment) Act 2018 put death penalty as a possible punishment for the rape of a girl under twelve years.

In spite of this growing seriousness surrounding child abuse, we’ve been witnessing some highly controversial judgements lately.

For instance, on 27th January, the Supreme Court stayed an order by the Bombay High Court, acquitting a man under the POCSO Act. They said that groping a minor’s bust without ‘skin-to-skin contact’ cannot be termed as sexual assault.

It also said that since the man ‘groped the child without removing her clothes’ the offence cannot be termed as assault; but it does constitute the offence of ‘outraging a woman’s modesty’ under Section 354 of the Indian Penal Code.

The problem with this is that while Section 354 entails minimum imprisonment of one year, the POCSO Act has a much harsher punishment, and entails minimum imprisonment of three years.

So, regardless of whether there was any ‘skin-to-skin’ contact, that incident – without a doubt – left this child horrified. In actuality, the aggressor here is a child predator and a possible threat to other children. The entire country was shocked when the court did not sentence him under POCSO.

Is the death penalty justified?

In India, we have the death penalty for grave sexual crimes against women and girls under the age of twelve. This has caused a major divide among the population.

One side argues that it acts as a deterrent in relation to sexual crimes, and it is likely that potential sex offenders would be more afraid to commit such crimes.

Others say that the call for death penalty is more a result of outrage than of serious thought. Plus, there is no conclusive evidence to say that it is a strong deterrent. Even the Justice J.S.Verma Committee, set up after the 2012 case, did not think that it was a way to make India safer for women.

The logic behind arguing for the death sentence for perpetrators of rape is that it is equivalent to death. However, feminist activists have strongly opposed this notion that a woman’s ‘honour’ is linked to her sexuality, and the apparent loss of it renders her life not worth living.

A collective of women’s rights groups said in a statement: ‘The logic of awarding death penalty to rapists is based on the belief that rape is a fate worse than death. There is a need to strongly challenge this stereotype of the “destroyed” woman who loses her honour and who has no place in society after she’s been sexually assaulted.’

What does the way forward look like?

In spite of the growing movement for reforms in the legal system, some organisations have realised that in order to make our country safer, they need to address the root cause of sexual crimes.

So, they’ve decided to challenge patriarchal notions like ‘men are elite beings’ and ‘consent is unnecessary’.

One such organisation is the Equal Community Foundation. Established in 2009, it has been working towards inculcating gender equitable attitudes among boys, aged 13-17 years. So far they’ve educated more than 12,500 boys.

Their mission is to ensure that Indian men understand gender equality in order to end violence against women.

They usually conduct about fifteen sessions based on gender stereotypes, construction and deconstruction of gender norms, patriarchy, discrimination, and above all, the importance of consent.

Remember how we talked about the 2012 case? The victim was called ‘Nirbhaya’ for a reason. That incident shook the nation, the whole country mourned her loss, and to say that we were just upset over this is nowhere close to the grief and anger that all of us felt.

We call her ‘fearless’ in the hope that someday, perhaps we will be able to walk the streets at night without any worry. Perhaps someday, we won’t have to live like second-class citizens in our own country.

Perhaps someday, we won’t be afraid.  If you are someone who is facing abuse, please seek help here. To demand a gender neutral rape law, sign a petition here.


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