Changing Facets Of Sexual Offences – An Indian Outlook
Man has learned and is able to control may of nature’s forces, but so long as he is unable to control the forces within himself, there can be no question of real civilization. Human culture has not carried things beyond putting a finer polish on its animal impulses i.e. physically reacting to external stimuli, without emotional bonding and intellectual analysis. The human race may have become more developed materially and technically, but it is not happier. The great mechanical and urban advancement is being achieved to the detriment of the integrity and character of the human being, which values are the barometer of its development level in the real sense.
Taylor Caldwell wrote-
“Man is never victorious, never defeated,
The looters yield their loot to the cheated,
Honesty and folly can never be parted,
The waters return to the hills from where they started.”
That is the ultimate Truth, Research may ultimately find that person involved in extramarital affairs get paralytic strokes, as nature reacts violently when disharmony is intentionally/deliberately created for every action has an equal and opposite reaction and whether one likes it or not, all karmas-physical, emotional and intellectual bear their fruits. There is always an ultimate justice.
Man is the first product of evolution who is capable of controlling his evolutionary destiny, Human being is constituted of five sense organs (eyes, ears, nose, tongue and flesh giving him the power of sight, sound, smell, taste and touch) emotions and intellect through which he perceives and analyses the other beings and nature around and express himself. In inter-personal relationships, more particularly when it relates to two different sexes, these five sense organs are used and on some occasions, their (mis) use results into an offence. Use of senses of smell and taste seldom lead to committal of any sexual offence but some movement of the eyes, some words spoken, sounds and noises made can be offensive and touch of flesh by way of bottom pinching, brushing past, embracing, indecent assault or rape would amount to suppression of will of the other by invading the privacy or the personal space which an individual requires for stable progression in life and will constitute sexual offences.
Every act of a human being whether on the physical, mental or intellectual plane of consciousness which leads to inflicting pain or suppression of the will of another being is an offence. All acts in the nature of offence done by a male human being against a female human being can be termed as sexual offence. Women are the victims of almost all sexual offences because the offenders, and they themselves think, they are unable and, therefore, unlikely to retaliate either with physical force or with recourse to law. They become victims and sacrificial lambs on the altar of the fragile male ego. They are the victims of a cozy belief that they go willingly to the slaughter.
As human beings co-exist in the social system, one of the most important aspects of criminal law and human contribution is to effectively and efficiently deal with this aspect of social aberration, and see that no only the offender is convicted, the victim compensated, but this offensive nature is controlled and the thoughts and energies of perpetrator and victim channelised into constructive fields of development. The criminal justice system will also have to be vigilant that in the existing dangerous state of exploitation of every human being by another, either for political or economic gains, false facts are not sought to be established or supposed leading to more evil than reform.
A significant number of writers have explored the psychology behind human behaviour and while Sigmund Freud place emphasis sex-motivated expressions, Karl Marx on the economic motivation, Nietszhe on the power motivation, the Bhagwat Gita rests on theory of functional sense, in the evolution process, the division into two sexes was brought about by nature only for the purpose of procreation of reproductivity of species and must, therefore, should have limited to monogamous relationship behind closed doors. But in the changing social environment it has come out on the roads and places of work and as a result of constant awareness, easy accessibility has resulted in increasing exhibition of sexuality and thereby the commission of sexual offences. Sexual offences are acts or expressions of violence and perversion unleashed on the weakest available female in the safest possible circumstances by the stronger male as a result of feelings of anger, frustration, depression, insecurity, deprivation and hostility and arising out of ignorance of his true nature of sat, chitta and ananda.
Sexual offences are covered under the following Acts of Parliament-
1. Indecent Representation of Women (Prohibition) Act, 1986
2. Indian Penal Code, 1860
3. Suppression of Immoral Traffic in Women and Girls Act, 1956
4. Dowry Prohibition Act, 1961
Obscenity and indecent representation of women
The sexual representation of women in cross-culture is an issue of grave concern. Obscenity is a threat to the purity of women’s sexuality and her modesty. It tends deflect an active involvement and participation so that men cannot be held to be at fault. Blame, however, lies with those who produce these obscene representations including the women who appear in it. Intelligent, well built and groomed, half clad women on the cover page of Cosmopolitan or Sports Illustrated-swimming suit issue all over the world provokes more sexuality than bare adivasi rustic females. Sex and violence in movies and media and erotic lucid details in best sellers or those which sell most is the material available to every citizen from rickshaw-pullers students to CEOs.
Eve-teasing, winking, staring, bottom pinching, improper toching, brushing past etc.
These sexual offences are becoming common amongst teenagers with urbanization and are morally committed in crowded places like college campus, public transport, fairs and fetes. These expressions are a result of sadistic tendencies and sick mentality of those human beings who cannot control their urges of indecently act towards fellow female beings in society. The reactions of the female give them the pleasure they had sought by violating the privacy of another individual. The male being feels elated about his superiority; he boasts about his acts amongst his peer group and thinks that he has achieved something great and unusual. Actions like these need immediate reaction from rational people and should be nipped in the nipped. An act which is demonical can never be appreciated and needs emphatic resistance. These cases may not get reported and, therefore, it is for the public and the citizens to be vigilant about them.
Sexual harassment contains elements of coercion, threat, and/or unwanted attention in a non-reciprocal relationship. In the University, sexual harassment of women by male faculty members undermines women as students or co-workers. Sexual harassment in this case may, therefore, take the following forms when man in position of control, influence or affect a woman’s job; career makes use of his authority and power to coerce the woman into sexual relations or to punish her refusal. In these cases the superior tends to take advantage of his position and the economic pressure leads to silent suffering.
Where in cases of sexual harassment men accused and found guilty of sexual harassment are professors and teachers, it becomes a serious issue and they should be suspended from their jobs or demoted from their posts, as students look up to their teachers as mentors and guides who are pillars of inspiration and place them on a pedestal and believe that they can do no wrong.
Sexual harassment at the workplace may include:
1. Verbal harassment of abuse.
2. Subtle pressure for sexual favors.
3. Sexist comments about the student’s clothing, body or sexual activities.
4. Unnecessary patting or pinching.
5. Leering or ogling at a woman’s body.
6. Constant brushing against a women’s body.
7. Demanding sexual favors accompanied by implied or overt threats concerning one’s job, marks, letters of physical assault.
Recently the Hon’ble Supreme Court in the matter of Rupan Deol Bajaj and Anr. Vs. K.P.S. Gill and Anr. 1995 (6) SCC 0194 has given directions to Chief Judicial Magistrate, Chandigarh to take cognizance upon the police report in respect of the offences under Section 354 and 509 IPC and try the case himself in accordance with Law. After a lapse of almost 8 years, a lady IAS Officer was successful in getting a senior police officer no less than D.G. Police, Punjab to the book, for outraging her modesty.
The Suppression of Immoral Traffic in Women and Girls Act, 1956 remains practically in suspended animation. There has been an alarming increase in trading of women. A woman can be purchased in the open market for half the price of a buffalo. Ashwini Sarin, an Indian Express Correspondent reported the purchase of Kamla, a mother of six children from the circuit house for two thousand rupees only. A large area of Dholpur provides girls in abundance for sale. The plight of homeless girls in protection homes, which are meant for their rehabilitation but where they are, treated inhumanly and as barterable commodities it pitiable.
The birth of a girl child is still regarded as contemptible and some parents do not even hesitate in trading the body of their girl child for a few worthless dimes. Inhuman conditions in Agra Protection Home compelled two eminent law professors Dr. Upendra Buxi and Dr. Lotika Sarkar to move the Supreme Court for redress. It is on the record of the Supreme Court that the inhuman treatment, mental and physical torture, turned 19 of the girls into mental cases. The protection homes set up for proper and adequate care for homeless and handicapped women seem to have been converted into centers of torture frequented by sex hungry law enforcement and other power wielding officials.
The nefarious practice of flesh-trade and sex-exploitation is not confined within the territorial limits of this country. The case of Tulsa, a minor Nepali girl highlights the planned and well-established practice of importing poor foreign girls into the vice dens of big cities in India where brothels are run on a large scale. She was kidnapped from Thankot, a nature village in Nepal, brought to Bombay and sold to the brokers operating in the red-light area of Bombay. After being brutally used and abused, and becoming afflicted of many venereal diseases, because of the continuous sexual exploitation, when she was seen to be unfit for the brothel, she was kicked out and left on the streets. Fortunately she was admitted to a Government Hospital by a philanthropist, who also informed her family in Nepal about her whereabouts.
Sheela Barse, noted journalist and social worker, on the basis of her intensive study of criminal exploitation of women in India rightly remarks- “Kidnapped children, abducted as teenagers or lured to cities in young adulthood in the hope of employment and the lives of thousands of women are thereafter destined to be circumscribed by the four wall of sleazy brothels. All other deprived sections of society get at least sympathy but for prostitutes there is only ostracisation”.
Licentious life is destined for them. The continuous fear of torture by brothel operators looms large over them; their rights get rusted by dilution of enforcement efficiency and apathy. Members of anti-prostitution squads are won over by the flesh traders and made to share the booty of the flesh trade. Instead of discharging their duty by taking prompt action even on the receipt of a complaint, they deliberately remain indifferent and rather shield the anti-social element and thereby allow and encourage the criminal exploitation of the unfortunate and helpless poor women.
The height of the inefficiency in the system is revealed by the nexus between criminal dons and top officials when it is reported that top police and judicial officers of Bombay were present at a lavish party hosted by the under-world Kind in a posh hotel of Bombay. A two hour long video film showed about 15 police officers including the Assistant Commissioner of Police and some high Judicial Officers attending the party and freely mixing around with criminals of the wanted category. When the custodians of law are hand in glove with those who are actually running the whole criminal show what can be the fate of the rights of the weaker sex.
While all rapes result in total emotional devastation, child rapes particularly inflict gross physical damage on the victim. Rape is the most horrendous of the sexual offences even more disasters than murder for the victim continues to lead a traumatic life. Its gravity is not in the injury to the body, alone but in the injury to self-esteem and self-respect. The physical battling and assault which accompany rape are not only what constitutes rape but it is the injuries added to the insult.
Victims of this sexual assault have survived a horrifying, humiliating, degrading, brutalizing, angering, demeaning and dehumanizing experience. Rape is the most serious violation of a person’s body because it deprives the victims of both physical and emotional privacy and autonomy. When the offence of rape occurs, the victim’s sense of self as well as her body is abused without consent. She loses her most basic human need right: Control of her physical and emotional of self. The victim’s psychological response to rape primarily reflects her reaction to violation of self. Therefore, they deserve to be treated with dignity and compassion and assured that their decision of getting the accused to the book is respected.
The prevailing view, which with great respect needs reconsideration is, that women who cannot be held as chaste or innocent are not raped as their consent is presumed. Rape has nothing to do with innocence and chastity, nor does it require blood to be spilt or minds to be lost. The act of rape is the most violent abuse of a woman’s body, privacy, modesty, autonomy and will. It is an act of unrestrained hostility and anger, an assault unique in the degradation it inflicts. The suffering, mental agony and trauma it causes is profound and the scars that are imprinted on the memory of victim never heal completely. The community and the law must be responsible for the scarcely veiled threat “They’ll never believe you.”
This attitude became only too evident by the various decisions of the Hon’ble Courts as in the case of Raju Vs. State of Karnataka, 1994 (1) SCC 0453 better known as Hassan Case, the Hon’ble Supreme Court, centered its decision on the concept of “victim-precipitated rape”, a concept in which the victim is regarded as the cause of the crime often on such flimsy grounds as the alleged provocation of her attire, or past sexual.
In State of Rajasthan Vs. Narayan 1992 (3) SCC 615, the Hon’ble Supreme Court however observed that, even if there has been a delay of two to three days in lodging the criminal complaint such delay is usual as in the “Indian Society, being what it is, the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since if involves the question of virtue and chastity of a married woman. A woman and her relatives have to struggle with several situation before a deciding to approach the police, more so when the culprit happens to be relative.” The Hon’ble Supreme Court, set-aside the acquittal order passed by the High Court and restored the order of conviction and sentence awarded by the trial court.
Distrust of rape complaints stems from the ease with which rape allegations can be made. There seems to be no reciprocal distrust stemming from the ease with which they can be denied and nearly always are. When a rapist leaves few physical scars on his victim, he usually claims in court that prosecutrix is lying, the allegations are false and that there was consent. The manner in which trials are conducted, gives the accused ample scope for showing that the woman’s behaviour was provocative and to cast sufficient doubt on her evidence. The attitude towards women who have been raped undoubtedly deters many victims from reporting their assault. Whether the victim conceals the rape of confronts the community with it, she is affected by the social implications of her involvement in such a sordid.
In a recent judgment i.e. Delhi Domestic Working Women’s Union vs. Union of India, 1995 (1) SCC 0014, the Hon’ble Supreme Court has analyzed the defects of the existing system. Firstly, complaints are handled are handled roughly and are not given such attention as is warranted. The victims, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly the court proceedings added to and prolonged the psychological stress they had to suffer as a result of the rape itself.
The Hon’ble Supreme Court quoted from Modern Legal Studies-Rape and the Legal Process by Jennifer Temkin, 1987 Edition, page 7:
“It would appear that a radical change in the attitude of defense counsel and judges to sexual assault is also required. Continuing education programmes for judges should include re-education about sexual assault. Changes in the substantive law might also be helpful in producing new ways of thinking about this type of crime.”
And Fox and Scherl, who studied “Patterns of response among victims of rape.” offered suggestions to help victims through the various stages of reaction. There is a typical emotional response to rape which occurs in three phases:
– acute reaction
– A period of integration and resolution in which the victim comes to terms with feelings of guilt and anger.
– Depression and numbness which the victim feels.
– Some may also need to go through a period of guilt and self-punishment.
The Hon’ble Supreme Court of India further indicated broad parameters in assisting the victims of rape.
1. The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure the continuity of assistance by ensuring that the same person who looked after the complainant’s interest in the police station represents her till the end of the case.
2. Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station. The guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
3. The police should be under a duty to inform the victim of her right to representation before any questions are asked of her and that the police report should state that the victim was so informed.
4. A list of advocates willing to act in these cases should be kept at the police station for victims who do not have a particular lawyer in mind or whose own layer is unavailable.
5. The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims are questioned without undue delay, advocates should be authorized to act at police station before leave of the court is sought or obtained.
6. In all rape trials anonymity of the victim must be maintained, as far as necessary.
7. It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss and some are too traumatized to continue in employment.
8. Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board. Whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.
Some steps that should be taken while dealing with such sexual offences and some suggestions:
1. The victim of a sexual attack should first and foremost be taken to any institute which is in the form of women’s and children hospital, so that the health and safety of the victim which should be the prime concern can be taken care of.
2. Going to a hospital as soon as possible after the assault is extremely important for several reasons :-
a. The victim may need immediate medical attention.
b. Tests for pregnancy, venereal disease and AIDS.
c. recording of medical for prosecution of the offence committed.
1. Preferably, during such a sensitive stage of after-offence care, a female attendant/nurse should be the one who should deal with the victim who has undergone such physical and emotional traumatic experience.
2. When the victim is interviewed by the police, there should always be a female police officer to conduct such interview, considering the emotional and traumatic state of the individual the questions generally asked at this time makes the victim recounting the assault, including what force, threats weapons, the assailant may have used, questions as to what happened before and after the assault may also be asked, which may deem harsh, invasive, insensitive, but which often are necessary for investigating the crime.
3. Lie detector test? A polygraph is a machine that measures bodily functions, such as heart rate, breathing rate blood-pressure. The accused person is asked firstly such questions that have nothing to do with the assault and then ask question concerning specific details of the assault. The changes in the heart-rate, breathing rate, and blood-pressure are used to indicate degree of truthfulness. Though results of polygraph examination are not admissible in the courts, but still can be quite helpful in giving right kind of leads to the police in their investigations.
4. Plea bargaining- The concept of plea-bargaining is new to Indian system, but although not an ideal solution, it may sometimes benefit the victim. In cases where it is difficult to prove all the elements of the higher offence for lack of sufficient evidence then the prosecution may plea-bargain with him to admit his guilt in a lower offence and be liable for a reduced sentence. The victim will not have to endure the trauma of a trial through which they are forced to relieve the trauma once under-gone.
5. Sweeping legal reforms are essential, not small adjustments to the sentencing policy or quibbling over age limits. Reforms must give equal status to the word of the complainant and the accused in court and must put into perspective the crime’s sexual element.
6. The corroboration requirement must be dropped as the present practice is grossly offensive to women, and discriminatory. Evidence relating to the sexual reputation of the complainant has to be made inadmissible. Consent should not be assumed on the basis of sexual reputation, sexual behaviour with other persons or lack of physical injuries. The law, as it stands today, does not take into account the mental anguish caused by sexual attack.
7. Public censure- In order to curb these vile urges which overpower men and lead to commission of sexual offences violating the mind, body and soul of the victims? I.e. female, the perpetrators should be publicly censured. The offender’s name, place of residence, the particulars of the offence, punishment imposed alongwith his photograph should be published in news papers and other sources of mass medial i.e. T.V. Radio, Local cable operators and even on Internet at the expenses of the offender. Sec. 74 C of the Indian Penal Code (Amendment) Bill, 1978 contemplates public censure; Sec. 375 to 377 must also be included in Sec. 74 C (3) of the 1978 Bill. This kind of adverse publicly of the accused, would deter future offenders to resist from indulging in such shameful crimes and the fear of maligning the name and status to his family may also keep a check on such reckless urges.
8. Gender education is necessary for it will promote understanding between males and females, which will encourage men to identify with women, which will remove the ease with which men can depersonalize women, which will blur the daunting and destructive edges of masculinity and femininity.
Analysis of the offender will provide some clues to deal with him. Researchers have established that majority of sexual offences are committed in cases where the female is known to the male. In these cases girls of tender age and development fall easy prey to elder male members. The other cases are either by way of retribution by a caste against another or by those who have developed a sadistic tendency.
The punishment factor of a prison sentence for rape is considerably undermined by its erratic application. Only a very small percentage of men who commit rape get punished for it by imprisonment. More than half the cases are not reported. Of the reported half the men do not eventually go to prison for the crime so long as half the men tried, do not deserved prison sentences the notion of rape-being one of the most serious crimes seems farfetched.
Dowry deaths, bride burning
A survey on “Why women burn? conducted by Sunjay Suri and Sevanti Niham, brings forth the oppressive attitude towards women on her giving birth to a female child. The survey published in parts, shows society treats women as a chattel and no effort is made to change the attitude of men towards women.
Of late there has been an alarming increase in cases relating to harassment, torture, abetted suicides and dowry deaths of young innocent brides. This growing cult of violence and exploration of young brides, though keeps on sending shock waves to the civilized society whenever it happens, continues unabated. There is a constant erosion of the basic human values of tolerance and the spirit of “live and let live” lack of education and economic dependence of women have encouraged the greedy perpetrators of the crime.
The Dowry Prohibition Act was enacted in 1961 and has been amended from time to time but his piece of social legislation keeping in view the growing menace of the social evil, also does not appear to have served much purpose as dowry seekers are hardly brought to book and convictions recorded are rather few.
Awakening of the collective consciousness is the need of the day. Change of heart and attitude is what is needed. If man were to regain his harmony with others and replace hatred, greed, selfishness and anger by mutual love, trust and understanding and if the woman were to receive education and become economically independent, the possibility of this pernicious social evil dying a natural death will not remain a distant dream only. The legislature, realizing the gravity of the situation has amended the laws and provided for stringent punishment in such cases and even permitted the raising of presumptions against an accused in cases of unnatural deaths of the brides within the first seven years of their marriage.
The role of courts, under the circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural errors or technicalities as then the criminal would receive encouragement and the victims of crime would be totally discouraged if the crime goes unpunished.
The courts are expected to be sensitive in cases involving crime against women. The verdict of acquittal made by the trial court in this case is an apt illustration of the lack of sensitivity on the part of the trial court. It recorded the verdict of acquittal on mere surmises and conjectures and disregarded the evidence of the witnesses for wholly insufficient and insignificant reasons. It ignored the vital factors of the case without even properly discussing the same.
An important aspect of human development or progress is to rise from its mere animalistic physical existence to reach a higher emotional, intellectual and spiritual plane. On the intellectual and spiritual planes of consciousness there is no question of sex discrimination. Sexual offences are also committed on an emotional plane, which will need a deeper look and serious efforts if we have to co-exist and undertake positive development. It is this lower nature with its animal qualities that must be conquered by the spirit within man in order that he may become truly a human being. The control of lower instinct is necessary in order that human being rises higher.
As long as the satisfaction of the appetite and lust of the flesh is included in man’s ideals and aims, he can never rise above the plane of animalism. Flesh here refers to man’s material nature which violates the spirit. Is opposed to an exclusive of it. Mere animalistic sexual expression has no more places in our civilization than would mud-huts serve as modern houses. But in our pseudo-civilization worse than animalistic sexual misuses are indulged in and condoned. Laws condemning them exist on paper but have no teeth to punish the guilty or warn the like-minded. There can be no question of real civilization until a relentless campaign against the domination of sexual urges is well on its way. A lessening of the overwhelming influence of sex is necessary before the race can claim a semblance of true culture and of becoming spiritualized, where there are no sexual offences.