Sexual Offences Against Women: Key Interventions

India, unfortunately, is today at the center stage of the world's attention for this existential crisis that is casting its shadow upon over half its population. A flurry of laws, policies and mechanisms, over 70 years of amendment, re-amendment and judicial interventions have all failed to cater to women's inherent need for safety, at times within the confines of their own homes.

A recent case of the same is a shocking report of 5 cases of rape being reported in the city of Hyderabad within a period of a week. But, even after the Criminal Amendment Act of 2018 and the recent verdict in the Nirbhaya Case, why is it that cases of rape are only on a rise?

Upon a detailed study one finds that the tardy rate of case disposal, lack of public confidence and the unchecked abuse of the legal provisions are commonly understood as the causes of this poor deterrence. However, at this stage, what deserves our unequivocal attention is the long-neglected issue of the prevalence of rape myths attached to female and male sexuality in the legal machinery and the blatant ignorance of the ideals of reformative justice. Mere emphasis on tightening the procedural framework will not bear the requisite results until other aspects are given their due weight. What is thereby suggested is a shift in the judicial outlook from its current emphasis upon notions of female chastity, public morality, collective conscience and stricter punitive action to identification of rape myths, ensuring gender equality at every step, identifying the right of sex education and delving into reformative justice.

Through the course of this article, we thus look at some interventions that must be made to assist the current legal framework in achieving the ends of women's safety. These are:

Identifying And Eliminating Rape Myths:

Rape myths refer to stereotyped or false beliefs about rape, rape victims and rapists which cast a shadow upon the formulation of law, dispensation of justice and societal perception at large. It has been observed that there is a constant emphasis on notions of dignity and purity of women and her body every time a matter pertaining to sexual assault of any degree comes up. Many times the accused is asked to treat the victim as a 'sister' and to 'protect her' instead. The Indian courts have been said to have attached attributes of meekness and fragility to women and their status, some of these being "chaste, pure, monogamous, honourable and confined to the domestic sphere". It has also been pointed out that "typical reactions" pertaining to victims are most often talked about by the courts. In certain cases, victim reactions are gauged in terms of the socio-economic background that they hail from. For example, a female from a rural background is more likely to sustain an attack as compared to her urban counterpart who might even faint in the face of such danger.

It is this gender stereotyping that has often led men to assume the role of the head of the family, the saviour of the weaker sex and in several cases- a source of power over their female counterpart. Hence, when judgments and orders re-instate this societal narrative by considering sexual assault as an assault on the purity of the woman, there is much that we should be worried about.

The UN Guidelines for Medico-Legal Care[i] for victims of sexual violence has enlisted common myths and facts bringing out the falsehood in these averments. A few examples of the same are-

• Myth: Motive of rape is sex

Fact: Major motives are power, anger, dominance, control

• Myth: Rape is an offence committed by strangers

Fact: Most cases are by a known assailant.

• Myth: Rape is immediately reported to the police immediately.

Fact: Most of the rapes largely go unreported and the victims are often scared to lodge a case due to them being threatened by the perpetrator.

It is hence for the courts to factor in these studies and adopt practices in terms of the conduct of court proceedings, victim or accused handling, evidence appraisal and judgment pronouncement by duly preventing any of these myths from being perpetuated or referred to even in the most trivial stages.

A welcome step in this direction was the directions issued by the Hon'ble Supreme Court in the judgment of Aparna Bhat v. State of Madhya Pradesh (2021). However, the implementation of the same still seems a far cry. Sensitizing all stakeholders of the legal machinery about these myths shall thus be the first step in this direction for change.

Rethinking The Deterrence Measures- Ineffectiveness Of Death Penalty:

Notably, from 2016 to 2019, a sharp increase in the conviction for death from 16% to 54.1 % by Sessions Courts has been observed.[ii] There seems to be a sharp departure from the rule of 'rarest of rare' and our ideals of reformative justice. However, is death penalty a deterrent in its actual sense? At this point, one is compelled to look at the two fallacies[iii] as have been pointed out by the experts-

• Knowledge Fallacies: This is an assumption of the fact that the accused is aware of the consequences of his act and the legal provisions pertaining to the specific offence. It has been stated that there is ample evidence to support the fact that in most cases, the offenders have little to no knowledge of the penalties that they can be subject to.
• Rationality Fallacies: Another relevant counterargument is the assumption regarding the offender being able to rationally weigh or even cursorily consider the consequences of his/her act. The fact that potential offenders are rational decision-makers is a widely criticized assumption. It has been found that in most cases, the offender commits the crime in a fit of rage or is clinically depressed or simply motivated by paranoia and emotions.

Notably, it is cautioned that the above fallacies do not imply that deterrence is a myth that the criminal justice system must do away with. It is rather suggested that the existence of a criminal justice system and existence of punishments is itself a deterrence and a mere emphasis on enhancing the severity of punishment would be a fruitless exercise. It is in fact the pace of justice dispensation, aspects such as victim and witness protection and scope of reformation that demand greater attention. A giant leap in this direction is the guidelines framed by the Hon'ble Supreme Court in the recent case of Manoj & Others v. State of Madhya Pradesh (2022 LiveLaw (SC) 510) wherein the Court has emphasized on collecting mitigating circumstances at the trial stage itself to avoid slipping into a retributive response to brutalities.

Recognizing Sex Education As A Fundamental Right:

While dealing with cases pertaining to sexual assault, an aspect that has been largely undermined is an attempt to understand and curb the psychological factors that determine the commission of the crime as regards the offender (and subjection to the crime as regards the victim). An enormous amount of significance has been attached to the victim's psychological aid and counselling during and post trial, however, an attempt to inculcate the same approach before the occurrence of the crime is completely missing. It is here that the role of sex education can be pivotal.

Notably, as per a report of the Pennsylvania Coalition Against Rape[iv], an NGO of the United States, the ability to read and write has a major impact on the rate of sexual violence in a country. It has been observed that people with low reading and writing skills often have less control over their lives and less understanding of their legal rights, low self-esteem and hence a higher risk of sexual violence.

As per a UNESCO Report of 2009[v], comprehensive sexual education plays a significant role in preparing young people for a safe, productive, fulfilling life, especially to prevent them from HIV, AIDS, gender-based violence amongst other things. The report highlights the significance of understanding concepts of consent, privacy, bodily integrity, safe use of information and communication technology and most importantly, biases and gender norms in order to reduced gender based violence.

In 2005 a PIL for inclusion of sex education as a fundamental right was dismissed by the Hon'ble Supreme Court on the grounds that our society wasn't an 'open society'. However, in the wake of progressive judgments of the likes of Navtej Singh Johar, it's high time that our approach towards sex education also undergoes a change.

Incorporating A Liberal Interpretation Of 'Women' Under The Indian Penal Code:

Often recommendations are made that sexual assault should be declared as a gender-neutral offence, and rightly so. However, in this constant struggle for inclusion of the binary aspect, we seem to have ignored the rights of a third yet major faction of our country i.e. the LGBTQI community. This question becomes all the more significant in the light of the fact that currently, the only legislation which deals with sexual violence against the Transgender community is the Transgender Persons (Protection of Rights) Act, 2019 which considers sexual abuse against the community as a mere petty crime with punishment ranging from 6 months to 2 years.[vi] Notably, according to the Centres for Disease Control and Prevention[vii], (CDC), lesbian, gay and bisexual people experience sexual violence at similar or higher rates than heterosexuals. In the light of the aforementioned aspects, it is critical that the term 'women' be re-visited and reconstructed in a manner for it to be wide enough to include within its ambit all these factions of the community. It is extremely crucial that the Navtej Singh Johar judgment reaches its finality and application in the truest sense to achieve the ends of justice.

At a point in time when women's safety is witnessing its darkest phases in the country, the Judiciary, being the guardian of the constitution, can play a significant role in bringing a change in the functionality, ideology and perspective of the institutions and the masses. With the changing times, our institutions must also embrace a new approach. Acknowledging and weeding out the rape myths, focussing on prevention rather than punishment and transforming the ideals of gender equality are some crucial aspects needing immediate attention. In a bid to punish offenders, we seem to have undermined the real objective that we set out with- ensuring equality, justice and liberty for the womenfolk and reducing the incidence of crime. While the judiciary must focus on fast-tracking the proceedings during the trial, it must also usurp its duty at the pre-trial and pre-offence stage to actively reduce the crime rate. Furthermore, it is also necessary that the Criminal Justice system keeps up with the changes in society and constantly transforms and re-creates its approach to cater to the needs of all.

Ultimately, in the words of the Hon'ble Apex Court itself-

"Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution."

The author is an Advocate practicing at Delhi. Views are personal