Introduction
After the inhumane gang rape of a 23-year-old paramedic student in New Delhi in December 2012, India woke up to a hard reality about crime and the safety of women. Violence and sexual offences against women were not a new kind of incident, but the after-effect of the Nirbhaya case made it different from other gang-rape cases in India. The huge range of protests by various citizens pressured the government to (a) review the existing laws meant for punishing the sexual assault and rape of women, (b) set up a separate commission for the same and (c) review the role of the police in securing the safety of women. Following the incidents, a high-level committee, called the Verma Committee was constituted by the GOI Notification Dated 23, 2012. The country-wide peaceful public outcry of civil society, led by the youth, against the government’s failure to provide the women of India, who are constantly subjected to sexual violence, with a safe and dignified space. Justice Leila Seth ( retd.) and Gopal Subramanium were members of the said committee chaired by Justice J. S. Verma (retd.). The objective of the committee was to look into possible amendments to the Criminal Law to provide quicker and enhanced punishments for criminals committing sexual assault of extreme nature against women. The Criminal law ordinance, 2013 was created on the recommendations of the Justice Verma Committee Report which was very recently introduced as the Criminal Law Amendment Bill, 2013 in the Indian parliament. In the Constitutional context, the committee’s report introduced new crimes and modifications were proposed to the existing ones. The Committee made recommendations on laws related to rape, trafficking, child sexual abuse, sexual harassment, sexual assault, medical examination of victims, police, electoral and educational reforms. Modifications were suggested to Section 354 of the Indian Penal Code, which previously defined the offence of “outraging the modesty of a woman”, amendments suggested to the Code of Criminal Procedure, 1973 (Cr.P. C.) and the Indian Evidence Act, 1872 (IEA). The article does not provide a brief of the entire report and aims to analyze Justice J. S. Verma Committee’s report on amendment to criminal Law with special reference to sexual assault against women.
Condensation Of The Report
The three-member committee was constituted to look into the possible amendments in the criminal laws related to sexual violence against women. The synopsis includes only the provisions related to various sexual offences and does not include the provision of medical examination and reform. It only provides a brief of the provisions and not an analysis or a critique.
Rape
The Committee criticizes the discourse of shame and honour attached to the crimes of sexual violence against women that prevent reporting of the crime. It was of the view that rape and sexual assault are not merely crimes of passion but an expression of power. The committee elaborated and discussed the various constituent ingredients of the offence of rape. It explained the ingredient, ‘consent’ using the case of Dileep Singh v. State of Bihar Consent. A reference was made to the case of State of H.P v. Mango Ram, and State of UP v. Chottey Lal to develop an understanding of the terms ‘will’ and “consent”. These cases tried to differentiate both the terms which require voluntary participation for purposes of section 375 not only after exercising knowledge, on the basis of the understanding of the importance and moral qualities of the act but also after full exercise of the option of the resistance and consent. Consent is not true under fear and confusion. The Koppula Venkatrao v. State of AP case states that penetration, not ejaculation, are the preconditions for violation. The committee noticed that ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Section 376 of IPC with Section 511 of IPC is referred to as the attempt to commit rape. The committee found that the victim’s statement alone was appropriate for prosecution. This report captures the essence of the case of Tukaram v. Maharashtra State to show how the public and other organisations have espoused women’s rights.
The Committee acknowledged, IPC distinguishes between rape in and out of a marriage and suggested considering marital rape as a form of rape. A case of a husband’s unconsented sexual relationship with a wife is an exception to the crime of rape. It is worth noting that a derogation from marital rape was recommended by the Committee. In the case of rape, the relationship between an accused and a survivor should therefore not be significant. It claimed that marriage should not be regarded as an irrevocable consent to sexual acts.
Acid Attack
The committee was of the view that the offence of acid attack which seems only to be against the human body causes permanent psychological damage to the victim. The Committee suggested that the offence of acid attack should not be clubbed under the provisions of grievous hurt which is punishable with 7 years imprisonment under the IPC. It noted that the offence was addressed in the Criminal Laws Amendment Bill, 2012 which was pending in Parliament then. The Bill determined a punishment of imprisonment for 10 years or life. It recommended that the central and state government create an entity to compensate victims of crimes against women.
Eve Teasing
The committee identified that the safety of women in all places is again a fundamental guarantee which is enforceable against the State. It recommended the insertion of provisions in the IPC to criminalise the act of eve-teasing.
Sexual Harassment In Workplace
The committee found the definition of ‘sexual harassment’ under Section 2(n) of the Sexual Harassment Bill to be satisfactory, however, it is noteworthy that the interpretation of the word “unwelcome” required some clarification. The complainant and the respondent are first expected to seek conciliation under the Sexual Harassment of Women at Work (Prevention, Prohibition and Redressal, 2012). The committee noted it to be contrary to the Supreme Court judgment in Vishakha v. State of Rajasthan which aimed to secure a safe workplace for women. The committee recommended that the employer should pay compensation to the woman who has suffered sexual harassment. The committee criticizes the requirement to institute an internal complaints committee by the employer to which complaints must be filed as such an internal committee defeats the purpose of the Bill and instead, proposes the institution of an Employment Tribunal to receive and adjudicate all complaints. It was also recommended that oral complaints should be admitted and further such complaints should be transcribed into the form prescribed by the Tribunal. It will help the women who lack the education to register their complaints with the Tribunal. The committee suggested that no fixed time period of limitation be prescribed and that period of limitation of 3 months for the making of a complaint contained in Section 9(1) of the Sexual Harassment Bill may be misused to defeat the ends.
Legal Protections For Women Against Offences In Conflict Areas
The committee suggested bringing the sexual violence against women by members of the armed forces or uniformed personnel under the purview of ordinary criminal law and to provide special care to ensure the safety of women who are complainants and witnesses in cases of sexual assault by an armed person. It recommended that there should be special commissioners who are either judicially or legislatively appointed for the purpose of women’s safety and security in all areas of conflict in the country. Due care should be taken while appointing the commissioners and they must be chosen from those who have experience with women’s issues, preferably in conflict areas. The committee highlighted the need to revisit the Armed Forces (Special Powers) Act (AFSPA) in conflict areas. The AFSPA required a sanction by the central government for initiating prosecution against armed forces personnel. The Committee proposed that where sexual offences have been claimed, the provision for a penalty to convict military personnel should be omitted expressly. A witness should be offered the rights of protection to complainants of sexual assault. Special commissioners to track and prosecute sexual offences should be named in conflict areas. Armed staff preparation should be reoriented to emphasise that armed personnel strictly follow orders in this respect.
Trafficking
The committee regarded trafficking as one of our country’s biggest areas of concern for crimes committed silently and under the cloak of darkness on the lakhs of poor children and women who are illegally rooted from their recorded geographical coordinates and whisked away into anonymity; into a world of happiness and darkness. It condemns the attitude of authorities that the cases of ‘missing children’, which may or may not be the result of trafficking in humans, are considered at par with a ‘lost and found’ situation of inanimate objects. Surprisingly it was noted that the accountability of the police in these cases is almost non-existent. The committee strongly believed that making it legally mandatory to register FIR by the police in cases where children are reported to be missing. This would make the police more accountable and under the direct control of the courts. The Committee noted that the Immoral Trafficking (Prevention) Act 1956 defined trafficking as restricted to only criminalised trafficking for the purpose of prostitution. The committee recommended that the provisions of the IPC on slavery be amended to criminalise trafficking by force, threat, or inducement. It also put forward the idea of criminalising the employment of a trafficked person. The security homes of women and children should be under legal care and measures to reintegrate the victims into society should be taken.
Child Sexual Abuse
The Committee horrified at the plight of India’s missing children noted with much despair that in many cases children are subjected to sexual abuse in their homes. The Committee takes note that the NCRB statistics reveal (i) the minimalistic approach of the State to establish and fund child protection homes, and (ii) that Integrated Child Protection Schemes have clearly failed to achieve their avowed main objective. The committee identified the gross failures in the juvenile justice system after going through various case studies, not only because the provisions of the Juvenile Justice Act are missing, but also because these provisions are not implemented in their letter and spirit. cases of abuse, its forms, and other irregular acts are often committed by the director and other staff members working in the shelter home which are supposed to be safe spaces for children. It makes a comment stating that society is guilty of fomenting a culture of silence, the State certainly has facilitated a culture of invisibilization of the impoverished. In compliance with the Juvenile Justice Act, 2000, the Committee proposed that the terms harm and health should be described in order to encompass emotional and physical harm and health of the juvenile.
Punishment For Crimes Against Women
Punishments for crimes involving sexual offences have been broadly classified into two categories: term sentences, that is imprisonment for tenure, and life imprisonment. The death penalty may be awarded if the evidence indicates that the crime in question falls within the scope of section 302 of the Indian Penal Code within the ambit of rarest of the rare case. The committee recommended that in the Criminal Law Amendment Bill, 2012, the minimum sentence should be intensified to 10 years with a maximum punishment being life imprisonment. It identified that a legislative clarification that life imprisonment must always mean imprisonment for ‘the entire natural life of the convict’ is required. Considering the argument that the introduction of the death penalty for rape may not have a deterrent effect, the committee enhanced the punishment to mean the remainder of life. Castration which is an injection for sex offenders with drugs such as Depo-Provera which has the effect of reducing the levels of testosterone and thereby controlling libidinous urges was considered unconstitutional and inconsistent with basic human rights treaties by the committee. It opined that the State might expose its citizens without their consent to potentially dangerous medical side effects. Based on this reason it did not recommend mandatory chemical castration of any type as a punishment for sex offenders. It rejected the possibility of chemical castration as a means of punishment. The committee proposed that the Indian Penal Code should introduce a new clause, namely Section 376(3) to fix “rape followed by death or resultant in a persistent vegetative state,” and that the Committee not reduced the age of the “adolescents” to 16 years.
Analysis Of Sexual Assault
When we read the term ‘sexual assault’ a few questions arise – What is the Difference between rape and sexual assault? Are the two the same or different? How did the committee interpret these two terms? These words are often used by the public interchangeably, and while they overlap, there are substantial differences.
Sexual Assault Versus Rape
The Glossary on Sexual Exploitation and Abuse by the United Nations provides the definition for both these terms. It defines sexual assault as an activity with another person who does not consent. It refers to sexual assault as a violation of bodily integrity and sexual autonomy and refers to it as broader than narrower conceptions of “rape”, because (a) can be perpetrated by means other than coercion or abuse, and (b) does not necessarily indicate penetration. The glossary defines rape as sexual activity where penetration, even if slightly of any body part of a person who does not consent with a sexual organ and/or the invasion of the genital or anal opening of an individual who doesn’t consent with any object or part.
The New York State Consolidated Laws also differentiate between the two offences rape, on one hand, will be defined as nonconsensual sexual penetration while sexual assault, on the other hand, will be defined as nonconsensual sexual contact. According to Article 130 of the New York State Consolidated Laws, “Sexual intercourse” is required for the crime of rape to occur, and therefore the term “has its ordinary meaning and occurs upon any penetration, however slight. In order to prevail in criminal trials, penal codes appear to describe rape in an unemotional, functional language. And they ought to, at least. It states that the criterion for the crime of sexual assault is quite detailed and specific, with the additional crime of aggravated sexual assault.
The Black’s Law Dictionary defines rape as follows:
“The unlawful carnal knowledge of a woman by a man forcibly and against her will. That is, without her consent and against her utmost resistance. Hence, if she consents to the sexual intercourse, although that consent may be reluctantly given, and although there may be some force used to obtain her consent, the offense cannot be “rape.” Opposition to the sexual act by mere words is not sufficient. While the slightest penetration is sufficient, it must be shown that private parts of males entered at least to some extent in those of females, and emission without penetration is insufficient. Under modern statutes which often materially change the common-law definition and create an offense commonly known as “statutory rape,” where the offense consists in having sexual intercourse with a female under statutory age, the offense may be either with or without the female’s consent. In English law. An intermediate division between a shire and a hundred; or a division of a county, containing several hundred.”
The Black’s Law Dictionary does not provide the definition of ‘sexual assault.’ According to Georgia, rape is considered a felony offense, and conviction for rape carries a sentence of 10-20 years in prison. Aggravated forms of rape or rape with other offenses or mitigating factors can carry a sentence of life in prison or even the death penalty. Sexual assault is considered a misdemeanor, under the law. It is interesting to note that the penalties range depending on the age of the perpetrator and the victim, as well as the difference between their ages.
The committee referred to definitions provided by the United Nations and IPC. The committee also relied upon the approach provided by other countries to understand the two terms. The report discusses the approach by Canadian law, the legislature of England and Wales, South African and UK legislation. The UN Handbook, recommends replacing the existing offences of ‘rape’ and ‘indecent assault’ with a broad offence of ‘sexual assault’ graded according to harm. The definition of ‘sexual assault’ is, however, considerably narrower than that of the proposed Indian response. The Handbook put forward the definition of ‘sexual assault’ as a violation of bodily integrity and sexual autonomy. Furthermore, the handbook recommends the removal of any requirement of proof of penetration. Canada does not have a separate definition of rape in its code. Instead, Section 271 of the Criminal Code in Canada prohibits ‘sexual assault’. Section 265 describes’ sexual assault ‘in situations of a sexual nature ‘as non-consensual contact. The law treats all offences equally from groping to penetration. All are considered sexual assaults and criminal offences. The legislature of England and Wales specifies offences of rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent, as separate criminal offences. South African legislation distinguishes between rape and other forms of sexual assault. The approach by the UN handbook and Canada is a broader understanding which seeks to replace the offence of rape and indecent assault with a wider term sexual assault. This approach does not come along with the complexities of defining the term ‘penetration’, which are inevitably unable to capture the full range of violations to which a woman could be subject. Equivalent definitions also significantly increase the evidential burden of the prosecution to prove penetration. The downside of this strategy, however, as recognized in the study, is that the epithet ‘rape’ tends to carry a high degree of social and moral opprobrium with it, which is not expressed by the words’ sexual harassment.’ There is a possibility of diluting the degree of ethical condemnation by eliminating the epithet “rape”.
On the other hand, England and South Africa use a narrow approach that seeks to retain the offence of ‘rape’ within a wider offence of sexual assault. The moral opprobrium attached to the traditional definition of rape is retained by this tactic. As indicated in the report sexual violence involving the penetration of the body using sexual organs is qualitatively different from non-penetrative forms of sexual assault and therefore should be treated as a more severe offence. Combining penetrative acts with non penetrative acts in a single offence is believed to reduce the gravity of the offence. The distinction between penetrative and non-penetrative sexual offences would provide a better direction for the judicial officers in sentencing. The committee highlighted the downside to this strategy is that there will still be disagreements as to whether an act is penetrative and whether it is not, possibly making it harder to prove a case of rape.
The committee has kept rape as a separate offence, keeping in mind society’s strong moral condemnation. The committee was of the opinion that a move to generalize the crime of ‘sexual assault’ would possibly signal a dilution of political and social commitment to respecting, protecting, and promoting women’s right to integrity, agency, and autonomy. The Committee found that, apart from the unacceptable references to ‘outraging the modesty of women in Sections 354 and 509, a criminal ban on other forms of sexual assault should also be enforced, such as non-penetrative forms of sexual assault, which are actually not found in the IPC. The acts covered Section 509 IPC known as “eve teasing” do not fall within the purview of rape or assault. The committee recommended the enactment of Section 354 in another form and the repeal of Section 509.
The committee expressed that rape is a form of sexual assault just like any other crime against the human body under the IPC. The committee report asserts sexual assault degenerates into the most extreme form of rape, starting with milder, unrestricted sexual harassment. It has to be stopped at the beginning. The committee expressed that the offence of rape should be retained but there is a need to redefine and include all forms of non-consensual penetration of a sexual nature. The term penetration should go beyond the vagina, mouth, or anus as defined widely in South African legislation. It is recommended to introduce an offence of sexual assault which should include all forms of non-consensual nonpenetrative touching of a sexual nature. It is recommended that the Canadian approach should be followed, according to which the ‘sexual essence’ of an act, if: ‘the sexual or carnal background of the offense is clear to the rational observer in view of all the circumstances.’
Courts would be required to examine the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, threats, intent of the accused, and any other relevant circumstances. It should not be a requirement for sexual pleasure to be targeted. The motive of the accused is ‘simply one of many factors to be considered. The committee examined the Criminal Law Amendment Bill, 2012. IPC Chapter XVI addresses “offenses affecting the human body”. It must be noted that Sections 375 to 376D of IPC are put under the category of “sexual offences”. The expression “sexual assault” is often used by the courts in dealing cases of not only rape cases but also cases of sexual abuse. The committee identified that the IPC did not define the said expression. The definition of “assault” is found under Section 351 of IPC. The Amendment seeks to substitute the expression “rape” with “ sexual assault” to widen the scope of the offence under Section 375 to Section 376D of IPC. The committee report remarks that one hand the proposed Bill put forward welcome changes to the law. On the other hand, there is still much ground that needs to be covered. Consequently, the Committee recommended amendments to the Criminal Law Amendment Bill 2012.
Sexual Assault In Indian Penal Code
The committee identified that IPC does not treat rape as a form of sexual assault and defines it separately. It recommended that sexual assaults should be treated as non-penetrative types of sexual assault. It noted that the offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature. Based on the circumstances the sexual nature of an act must be decided. Sexual gratification as a justification for the act should not be a condition to prove the crime. The crime should be punishable by 5 years or a fine or both of imprisonment. For the first time in the history of the nation, the Committee acknowledges the principle of verbal assault as a crime that is punishable by 1 year of imprisonment or a fine or both under Section 509 of the IPC by using words or gestures to “outrage the modesty of a woman”.
The idea of integrating phrases such as ‘the modesty of a woman’ highlights how law can in certain cases clearly represent the patriarchal nature of society itself. The social system allows society to think that society’s esteem and honour lie with a woman’s modesty. The notion that rapes and sexual attacks are not sexual offences but are crimes of power, was also introduced into the discussion in the committee report and the Law must view them as exactly that. The Committee demonstrates a comprehensive awareness of sexual crimes against women by broadening its definition of sexual assault. The Committee has proposed that the use of words, acts, or gestures that create an unwelcome threat of a sexual nature should be termed as sexual assault and punishable for either 1 year in prison or fine, or both.
In addition, the shame factor attaches itself to the victim’s attempts to victimize her. This also erodes the deterrent effect of criminalizing rape as it will eventually be used in rape trials against women, where men will state that women in rape trials were aggressors. The Committee has rigorously observed that stalking along with rape, sexual assault, and even teasing are serious issues, and they are all overlooked for a long time by society. Although the report stressed that it was stalking mainly offline, it included both offline and online stalking as an offence under section 354C(1) in its conceptualisation and recommended inclusion into the Indian Penal Code by the Committee.35 The committee has adopted the much needed concept of stalking under Section 354C of IPC and at the same time, a formal description of voyeurism was adopted by the Committee under section 354 of the IPC.
Victim And Perpetrator Of Sexual Offence
Acknowledging the possibility of sexual assault on men, as well as homosexual, transgender, and transsexual rape, the committee noted that the provisions have to be cognizant of the same38. However, the abuser has to be gendered and must be identified as a male, while the victim should remain sexually neutral. We must maintain gender specificity in sexual assault law because gender neutrality rejects the fact that men are the abusers in the vast majority of instances of sexual assault and the perpetrators of women are marginal. In addition, any criminal law shall have the dual function of identifying and acting on crimes. As a deterrent to the public regarding crimes, the normative ideal for communities should therefore be set. The fact that sexual offence is a power crime committed in the paradigm of social and physical inequality between males and females is negated by making the sexual assault law gender neutral.
However, sexual crimes against men, gays, transgender people, and transsexuals have not been recognized as a serious offence by the commission. It merely mentioned it, without making any detailed directions for sexual offenses against them. Data reveals that transgender individuals and bisexual women face the most troubling rates of sexual harassment within the LGBTQ community. The 2015 U.S. Transgender Study found that at some stage in their lifetime, 47 percent of transgender people are sexually assaulted. In the matter of sexual crimes, the study does not apply equal protection of the law to this group. The notion is that criminal law should consider the reality that victims of sexual crimes as well as offenders may be men, women, and transgender people.
A modern understanding of the essence, consequences and complexities of non-consensual penetrative (and non-penetrative) sex acts on the persons involved and also on culture is expressed in such a belief system. The Committee report notes that the rapist must be gendered on the basis of the belief that only a male perpetrator can commit the crime of rape on a female. The view is not consistent with the central principle of equality and equal protection of the law, as provided in Article 14 of the Constitution. However, it must be understood that the gender neutrality of rape laws is only aimed at broadening the spectrum and expanding the security of the law to women, men, and transgender people alike. Sexual assault by women is regarded as a very unusual occurrence relative to sexual assault by men. Statistics show that in the year 2010, Quebec women accounted for just 4 percent of those accused of having been responsible for sexual crimes. The ratio of male-female perpetrated sexual offences were found to be 20:140. Though women accused of sexual offences do not constitute the majority they do exist and so should the law to punish them. The committee recommended keeping the victim gender neutral ironically Criminal Law Amendment Bill 2013 seems to have ignored not only the need for gender-neutral laws for sexual offence but also the committee’s suggestion.
A change in the terminology of law was also recommended as follows :
Section 354 – Sexual Assault and Punishment for sexual assault (1) The following acts shall constitute the offence of sexual assault:- (a) Intentional touching of another person when such act of touching is of a sexual nature and is without the recipient’s consent; (b) Using words, acts or gestures towards or in the presence of another person which create an unwelcome threat of a sexual nature or result in an unwelcome advance.
The primary focus of this particular committee remained on recognising sexual offences against women in India and increasing the punishment, especially for rape on demand from various civil society groups and women’s groups in general. Holistically it had provided more reliance on therapeutic jurisprudence for restituting sexual assault crimes against women. It offered for the first time a therapeutic perspective not only for the offline sexual offences against women, but also for crimes committed through digital media by recognizing the need for more severe punishment, rectifying circumstantial issues which may aid in the victimization of women, better reporting portals including e-governance for fast reporting, and a ‘women caregivers for women victims’ concept. The committee report however remains silent on other forms of sexual assaults-like protracted sexual assault by relatives, drug-facilitated sexual assault, female genital mutilation, etc. as aggravated forms of sexual assault. This causes grave injustice to many victims.
Conclusion
It is disappointing that, while the report was submitted to the Union of India on 23 January 2013, the Committee’s majority recommendations were not adopted after eight long years of passage. With the exception of a few recommendations, the majority of Justice Verma’s recommendations were not followed. The much-needed changes/reforms in the provision of justice to victims of rape and sexual harassment and preventive measures could not be realized because of the non-implementation of the recommendations of the report.
This has led to unrest among the nation’s people, especially victims of rape and sexual offence. Only peno-vaginal penetration is the subject of the IPC clause. A limited definition of sexual harassment continues to be maintained in the Criminal Law Amendment Bill 2012, which focuses on penetration, while body parts exclude substances other than the penis. The difference between modesty outrage (Section 354 IPC) and penetrative sexual assault continues to be big. The Bill should have acknowledged the systemic and graded nature of the sexual assault, based on the principles of damage, injury, humiliation, and degradation, and the use of well-established categories of sexual assault, aggravated sexual assault, and sexual offenses/harassment, including attempted sexual assault and rape. The legal structure against sexual offences must make it compulsory to provide gender sensitisation courses for everyone, in all educational syllabuses in schools and colleges. This is important to alter the thinking of a culture founded on overwhelmingly male-child preference, along with culturally sanctioned retrograde male privileges.
This article is written and submitted by Neha Haldhar during her course of internship at B&B Associates LLP. Neha is a B.S.W LL.B (Hons.) student from Gujarat National Law University.
