Sexual Violence: Comparing Justice Verma’s Recommendations and the Govt’s Ordinance

Courtesy: Bekhauf Azadi campaign

Comparison of the JVC Recommendations With the UPA Govts Ordinance
the JVC Recommendations
UPA Govts Ordinance
For the first time in India, spelt out a constitutional Bill of Rights for women, and the means to ensure those fundamental rights to equality, freedom, and autonomy
Ignores the Bill of Rights
Recognised that sexual violence is not an act of sex or lust: it is an act of patriarchal power. Therefore, to reduce sexual violence, we must safeguard womens freedom and rights; and to ensure that perpetrators are punished, we must undo the impunity and protection for such offences that is built into the laws and into our system
Maintains the inbuilt ways in which laws protect powerful perpetrators
Recognised womens rights to autonomy: including her sexual autonomy and her right to choose her partners, friends, and spouses. Recommended changing the archaic and anti-women vocabulary of laws. Understood sexual violence as a violation of a womans bodily integrity and her dignity, rather than as outraging modesty, robbing honour or bringing shame.
Has many clauses that go AGAINST womens autonomy and freedom, and retains the anti-women wording of outraging modesty instead of molestation or sexual violence
Recognised womens rights to autonomy: including her sexual autonomy and her right to choose her partners, friends, and spouses. Recommended changing the archaic and anti-women vocabulary of laws. Understood sexual violence as a violation of a womans bodily integrity and her dignity, rather than as outraging modesty, robbing honour or bringing shame.
Accepted the changed definition of consent as recommended by JVC, BUT retained many of the substantial provisions that fail to recognise and respect womens consent in case of married women, 16-18 year-old girls, and women who complain against the powerful people such as judges, magistrates, police officers, bureaucrats, and army officers.
Redefined the meaning of consent: stating that unless a woman indicates Yes to sex, either by word or by gesture, no one can assume that she consented. In the present system, many rape cases go unpunished because a woman is presumed to have consented unless she has marks of injury on her body or on the body of the accused. She is presumed to have consented if she is married to the accused. A girl is presumed to be incapable of consent to sexual contact if she is 16-18 years old, even if her partner is of a similar young age,unless she is married to him. Moreover, she is presumed to be lying if the man she accuses is a public servant; a judge; a magistrate; or an army officer; that is why, in such cases, prior permission from the Govt is needed in order to prosecute the accused. Justice Verma sought to challenge and change these in-built, wrong assumptions that go against justice for women.
Accepted expanded definition and scope of sexual assault, and more severe punishment
Expanded the meaning of sexual assault to cover a range of forms of sexual violence: from sexual harassment to stalking to voyeurism (making MMS etc) to acid-throwing to rape by insertion of an object or a male body part. Recommended higher and more severe punishment for various forms of sexual violence.
Makes theperpetrator/accusedin the rape lawgender-neutral i.e both men and women can be accused of rape. This will mean that if a woman files a rape complaint against a man, he can file a counter-complaint of rape against her!
Recognised that thevictimof sexual violence could be gender-neutral (i.e could be female/male/transgender/hijra etc), but that theperpetratoris male.
All mutual sexual contact between young girls and boys of the age group 16-18 is automatically termed as rape. This means that innocent young boys will face rape charges, for no crime except that they befriended young girls of their own age. And a generation of young boys who grow up without learning to see girls as equals and as friends, will be more likely to be violent towards women as adults.
Recognised that young people between the age of 16-18 do, naturally, indulge in sexual experimentation, and that such sexual contact between young people by mutual consent cannot automatically be termed rape.
Legitimises marital rape i.e forced sexual contact by husbandagainst wifes consent. Therefore strengthens the idea of the wife as the sexual property of the husband.Retains the provision of lesser sentence (minimum sentence of 2 years) for a husband who rapes a legally separated wife!Therefore, even if a wife has taken the pains to separate herself from an abusive husband, the law will make excuses for him if he rapes her, on the grounds that she was once his wife, and so he can be excused for thinking of her as his property!Not only that, according to the ordinance, wives cannot accuse husbands of sexual assault but because of the gender-neutral provision, husbands can accuse wives of sexual assault! Not only that, husbands cannot get life sentence or death sentence for sexual assault even of a separated wife, but a wife accused by a husband of sexual assault, can under the ordinance get life sentence and even death sentence!
Recognises that rape happens even within marriage. Asserted that sexual contact, even within a marriage, must be with a womans consent; a wife is not her husbands property, and cannot be expected to have sex with her husband, against her will. Therefore, recommended removal of the existing exemption of marital rape from the rape law. Upheld the principle that in the case of rape and sexual assault, the relationship of the accused with the complainant will not be the basis for denying her claim of rape; neither can it be the basis for a more lenient sentence. Therefore recommended deletion of the provision of lenient sentence in case of rape of a legally separated wife by a husband.
Continues to protect the powerful. No provisions against candidates charged with sexual violence. Retains the requirement of prior permission for prosecution of public servants/judges/magistrates/army officers. So, no Ruchika Girotra (molested by a police officer), Geetika Sharma or Rupam Pathak (raped by MLAs), Thangjam Manorama (raped by army personnel) can expect justice!
Sought to get rid of protections for powerful offenders.Recommended that politicians against whom a charge sheet has been filed for sexual violence, be prevented from contesting elections.Recommended that no sanction/prior permission be required to prosecute judges/magistrates/public servants who are accused of sexual violence; and similarly that the AFSPA be amended to do away with the requirement for sanction/prior permission to prosecute an army officer accused of sexual violence.Justice Vermas argument is clear: no army officer nor any judge or public servant can claim to have raped in the course of his duty. As in any case, the Court can be the best judge, based on available evidence, of whether a complaint is false or true.
Senior police/army officers will not be investigated or punished for custodial rapes that are committed at their orders or with their knowledge in custody by their junior officers.
Recommended changes in the law based on the principle of command responsibility in case of custodial rape by police or army: i.e the principle that a superior officer will be held responsible if he orders or knowingly allows a junior officer to commit rape or sexual assaultagainst a woman who is in custody, or is in a conflict area. This principle is very important if one looks at the rape of Soni Sori (Chhattisgarh SP Ankit Garg ordered his men to sexually torture her) or the rape and murder of Thangjam Manorama in Manipur in the custody of personnel of the Assam Rifles. Such rapes could not have occurred without the knowledge and explicit orders/tacit consent of senior officers. Given the widespread prevalence of sexual violence in conflict areas, the JVC also recommended a review of the AFSPA, which is encouraging such violence. That AFSPA in any case has a provision for periodic review, which has however not been done.
Does not prohibit two-finger test, whereby a doctor puts two fingers into a rape survivors body to check if she is habituated to sex. In fact, the ordinances definition of rape (Section 375) legitimises this test, by stating that penetration or touching of private parts for medical purposes (without specifying the need to obtain prior consent of the patient) will not be considered rape. The rape definition in the ordinance also, strangely, justifies penetration of the body for hygienic purposes so now, many rapists can try and explain away rape as a lesson in hygiene!
Recommended changes in the existing medical investigation protocol rape survivor. Recommended prohibition of the demeaning two-finger test and other forms of medical examination that investigate womens past sexual history. Also recommended a protocol to ensure sensitive medical care of a rape survivor.
Accepts changes in judicial procedure, but does nothing in the direction of speedier justice
Recommended more judges, more courts to ensure speedier trials and timely justice; also changes in judicial procedures to make rape trials gender-just.
Did not recommend death sentence.
Includes death sentence for rapes that result in death or permanent vegetative state of the victim. In the case of death of the victim, the provision of death sentence already exists and is nothing new. Death sentence for causing permanent vegetative state is dangerous for women: since the risk of hanging for murder and rape are the same, it is likely to become an incentive for the rapist to make sure to kill the victim so that she cannot testify against him.
Made the Govt responsible for the failure to protect women from violence
a)recommended 5 years imprisonment for police personnel who fail to do their duty (i.e filing FIRs, pursuing a fair investigation), recommended comprehensive police reforms
b)recommended setting up of well-equipped Rape Crisis Centres; safe houses for women facing violence; forensic investigation; and juvenile justice homes
c)Spelt out the Govts duty to ensure safe and adequate public transport, and safety at bus stops and on streets, and a range of other governance measures.
No efforts to ensure police accountability or governance;
a)Punishment for failure to register FIR or biased investigation is just a token 1 year; no police reforms
b)No provisions for rape crisis centres, forensic facilities, safe houses, juvenile homes etc
c)No governance measures such as public transport etc to ensure safer public spaces for women

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