The UPA II government is totally focused on prescribing death penalty and harsher punishments for rape, while removing ‘rape’ from definition of ‘sexual assault’, much against reasoned recommendation of Justice Verma.
Increasing harshness of punishment ranging from 20 years, minimum of rigorous imprisonment to jail till death and death penalty, without prescribing conducive circumstances for certainty of establishing guilt is not in tune with what Justice Verma suggested. Though most of his key recommendations are followed, several of his recommendations have been ignored in their hurry to promulgate a popular ordinance eyeing women votes.
Substantial reason for failure in establishing rape, despite the proof of penetration, is the weak definition of ‘rape’ law, ambiguity with regard to the ‘lack of consent’ of the victim. The defence lawyer expertise totally depends on raising ‘reasonable’ sometimes ‘unreasonable’ doubts about the existence of consent, which the judges are ready to accept as a factor leading to acquittal of the rape accused. In spite of detailed report of Justice J.S Verma Commission, the UPA II government went ahead with hurriedly drafted Criminal Law (Amendment) Ordinance, 2013. Having appointed the commission, the government owes a responsibility to answer why his substantial recommendations are not looked into.
When the Parliament is bound to meet within weeks, it is improper for the government to promulgate this ordinance. Except incorporating death penalty, despite opposition from Verma Commission and steep increase in the quantum of punishment the Ordinance offers no positive protective programme or comprehensive strategic scheme for rehabilitative support to the victims.
Before we move forward, it would be worth its while to compare the two definitions:
“A man is said to commit rape if he—(a) penetrates the vagina or anus or urethra of a person with—(i) any part of his body including his penis or, (ii) any object manipulated by him, except where such penetration is carried out for proper hygienic or medical purposes; or, (b) manipulates any part of the body of a person so as to cause penetration of the vagina or anus or urethra of another person; or, (c) engages in “cunnilingus” or “fellatio”… under the circumstances falling under six descriptions about lack of consent.
Six exceptional circumstances are almost similar to the old section 375 except that the new definition is gender neutral.
A person is said to commit ‘sexual assault’ if that person – (a) penetrates his penis, into the vagina, mouth, urethra or anus of another person or makes the person to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person, or (c) manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such person or makes the person to do so with him or any other person; or (d) applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person; or (e) touches upon the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person.
Seven exceptional circumstances are almost similar to the old section 375 except that the new definition is gender neutral.
The positive aspect of ordinance is the strong definition of rape and reasonable explanation to term ‘consent’. The ‘definition’ is a key factor upon which entire criminal judicial process depends. It is the foundation of criminal consequences of rape. The 150-year-old IPC definition remained penetration-oriented and ‘lack of consent’ based. Both aspects are very complex to be proved, which manifest in low conviction rate. Section 375 of the Indian Penal Code has traditionally defined rape in narrow terms penile-vaginal ‘penetration’ in the circumstances incorporated.
There were many studies and researches as to how the definition should be framed to effectively punish rape accused. A significant product is the handbook developed by the UN Department of Economic and Social Affairs, Division for the Advancement of the Women in 2010.
The UN handbook recommended ‘sexual assault’ to be defined as a violation of bodily integrity and sexual autonomy. It also sought the removal of any requirement of proof of penetration. Referring to this, Justice Verma examined two contrasting positions in other jurisdictions. First was Canadian jurisprudence, which does not have a separate definition of rape. Section 271 of the Criminal Code in Canada prohibits ‘sexual assault’. Section 265 defines ‘sexual assault’ as non-consensual touching in circumstances of a ‘sexual nature’. The law does not distinguish between different types of touching from groping to penetration. All are sexual assaults and criminal offences.
Explaining advantages and disadvantages of this approach i.e. violation of bodily integrity, Justice Verma said that it does not require complex definitions of ‘penetration’, which are inevitably unable to capture the full range of violations to which a woman could be subject to. Such definitions also considerably increase the evidential burden of the prosecution to prove penetration.
Second approach, which Justice Verma examined, is retaining offence of rape within a wider offence of sexual assault. England and Wales followed this approach wherein specific offence of rape and assault by penetration, sexual assault and ‘causing of a person to engage in sexual activity without consent’ are defined.
Section 1, Sexual Offences Act 2003 UK says that ‘rape’ occurs when a person (A) ‘intentionally penetrates the vagina, anus or mouth of another person (B) with his penis’ without consent. Section 2 says ‘assault by penetration’ occurs when (A), without consent, ‘intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,’ and the penetration is sexual. Both of these offences carry a maximum sentence of life imprisonment.
Section 3 says ‘Sexual assault’ occurs when (A) ‘intentionally touches another person (B),’ and the touching is sexual. Section 4 provides that ‘causing a person to engage in sexual activity without consent’ occurs when (A) intentionally causes another person (B) to engage in a sexual activity without consent. Where the activity is equivalent to rape or assault by penetration, the maximum sentence is life imprisonment. In other cases, the maximum sentence is 10 years.
A similar approach is taken by the South African legislation, which distinguishes between rape and other forms of sexual assault. ‘Sexual penetration’ is defined in broad and gender-neutral terms, which go well beyond the prior common law restriction to penile-vaginal penetration. The advantage of this approach is that it retains the moral opprobrium attached to the common understanding of rape. Notably, the separation of rape from other forms of sexual assault was supported by the South African Law Reform Commission in its 1999 discussion paper on the reform of South African sexual violence laws. To combine penetrative acts with nonpenetrative acts in a single offence, it argued, would reduce the gravity of the offence. Furthermore, it argued that the division between penetrative and nonpenetrative sexual offences would provide a better guide to judicial officers in sentencing. The disadvantage of this approach is that there will still be disputes as to when an act is penetrative and when it is not, potentially making it more difficult to prove a rape case.
After studying this, Justice Verma recommended retention of rape as a distinct crime, as the term is widely understood and expresses social condemnation. He also saw the risk of dilution of political and social commitment to respecting, protecting and autonomy in moving to generic crime of ‘sexual assault’.
As agreed and recommended, the penetration was widely defined by Ordinance 2013 to go beyond the vagina, mouth or anus, as defined by South Africa. Justice Verma recommended following Canadian approach, introducing an offence of sexual assault including all forms of non-consensual non-penetrative touching of sexual nature. He explained: “The Criminal Law (Amendment) Bill, 2012 uses the term sexual assault in lieu of rape to cover a wider gamut of offences including penetrative sexual assault which has thus far been called rape in the Indian Penal Code. However, the Committee found that the Protection of Children from Sexual Offences Act (PoCSOA), 2012 defines the term sexual assault in a limited context. Section 7 of the said Act confines sexual assault to the acts that involve physical contact without penetration. Hence, if rape to be redefined as ‘sexual assault’ in relation to the IPC, then there would be a clear contradiction between them and the PoCSOA. Hence, the Committee recommended that the term rape be retained in the IPC to denote the highest categorisation of sexual assault, i.e. penetrative sexual assault.”
The makers of Ordinance 2013 refused this recommendation without giving reasons.
The 84th Report of Law Commission of India says the consent is the anti-thesis of rape. Section 114-A in the Evidence Act in 1983, says: “… where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”
As the Ordinance 2013 rightly incorporated the explanation about consent, all the controversy arising out of conflicting decisions as to how ‘lack of consent’ can be established can hopefully end. Justice Verma suggested to clarify consent as an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act, provided that, a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consent to the sexual activity. In spite of the decision of the Supreme Court in Shri Bodhisattwa Gautam v Shubra Chakraborthy 1996 SCC (1) 490, corroboration of the prosecutrix (victim of rape and prosecution witness) was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of ‘consent’ by the courts who tried the offence.
In spite of expansive and inclusive definition of rape, the ordinance is not as comprehensive as suggested by Justice Verma. It also does not include a distinct offence ‘rape’ to respect societal condemnation of violation of woman. The improvised definition of sexual assault alone cannot deliver justice without addressing critical issues raised by Justice Verma. The Ordinance 2013 did not think of prevention, protection, compensation, speedy trial and above all certainty of conviction.
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