Just another brain-dead techie with views on everything under the sun!

Monday, June 14, 2004

Stop quibbling. Make the law!

Blogging has been touted as a potentially powerful tool for social change. Andrew Sullivan described it as
"... blogging is the first journalistic model that actually harnesses rather than merely exploits the true democratic nature of the web"
[source: andrewsullivan.com]
I want to try and see if these words really mean anything in the Indian context or if the potential of blogs stays just that... a potential!

There's a battle raging in the Indian blogosphere in the past few days. It started out as an innocuous discussion on the fallouts of BJP's loss in the recent general elections, went on to become a debate on what constitutes an 'ad hominem fallacy' and finally morphed into a no-holds barred slugfest on the topic of marital rape.

I do not want to comment on the merits and de-merits of the arguments and rants put forth in this whole debate about marital rape. Every person is entitled to his/her own views and criticizing them outright is not only boorish but also shows mental vacuity. Downplaying the horrors and the agony of rape is not only wrong but also insensitive. Similary blatantly misandrist views are grossly unfair and tend to wrongly generalize matters.

But my point is... given the chance, what kind of a law, against rape, would you formulate?! The current law under the Indian penal code stands as...
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First- Against her will.

Secondly,- Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly - With or without her consent, when she is under sixteen years of age.

Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

[source: indialawinfo.com]
As can be seen from the last sentence in that excerpt, the Indian Penal Code is incompetent to handle cases of marital rape. Actually, it explicitly excludes marital rape from the definition of 'rape'. As a result, any sexual abuse, violent or non-violent, among married/dating couples and generally among members of the family, remains outside the ambit of the law.

A Task Force was set up with great fanfare, in 2000 by the Women and Child department of the Indian Government, recommended several modifications to the rape laws in India. But the task force went out with a whimper and its recommendations lie forgotten somewhere in a dusty cupboard of some government office.

Simplistically speaking, the removal of the last line from the above excerpt from the IPC would effectively open the doors for prosecution of marital rapists. But is it so simple?? Globally, marriage is considered to be an implicit consent for sexual relations with one's partner. As a result, this argument is often used by husbands while defending themselves against the charges of sexually abusing their wives. The failure of the law to unambiguously define the word 'consent' in context of sexual intercourse is one of the biggest drawbacks of the law against rape. And simply repealing the exception to the rape laws will not serve the purpose. Moreover, there is no provision in the law to take the mental faculties of the victim and the perpetrator into account. As a result, simply defining 'consent' will not suffice either. Another question that needs answering is... who will own the burden of proof? Should it be the prosecution or the defence??

I've just scratched the surface. There are so many nuances and shades to this that the mind boggles. Especially since a traditionally patriarchical society like India will find it difficult to digest the notion of a husband actually 'raping' his wife.

I would like you all to suggest ways in which the current rape law under the IPC could be modified to include marital/dating rape.

I want to see if all this noise results in some sort of a constructive activity.


Blogger Ravikiran said...

Firstly the law does not exclude "members of the family" in general or even boyfriends. It only excludes husbands. As I've mentioned, I am for including husbands into the ambit. In practice, if I were a judge I would like to see a lot more proof if the accusation is against the husband (provided there is no other sign of physical violence etc.), but I don't see how that can be written into the law, so this higher burden of proof should be a matter of judicial precedent.

But more importantly, I would like to rewrite the law to remove the stupid condition of "penetration". The supreme court yesterday asserted that oral and anal penetration is *not* considered penetration. That is ridiculous. In fact I'd rewrite the law to cover a broader range of sexual assaults, whether or not penetration is involved. This might give the judge too much leeway in deciding what is rape and what is not rape, so I will put the proviso that penetration (of any kind) is certainly considered rape (no judicial interpretation allowed there), perhaps with a mandatory minimum sentence if penetration has taken place.

5:28 PM

Blogger Ravikiran said...

"Moreover, there is no provision in the law to take the mental faculties of the victim and the perpetrator into account"
But there is. If the victim is of unsound mind, it is rape.

And yup, the burden of proof should remain on the prosecution. (Both for proving that sex took place and for proving that consent was not given. ) This is standard for criminal cases and there is no reason to change it.

5:31 PM

Blogger Sameer said...

Ravikiran, your first point is taken. But I don't see why one should require more proof only because the accused is the victim's husband. The same amount of proof as in any other rape case should be sufficient to convict the husband if found guilty. At the same time, I strongly object to people who feel emotions should override proof and logic only because the accused is the husband. The Supreme Court assertion you mentioned is not only ridiculous but also dangerous! Finally, the rape laws in India devote half a sentence to the mental faculties of the victim without even considering those of the accused. Moreover, 'unsoundness of mind' is such a blanket term that it is very easy to bypass it!

8:47 AM

Blogger Ravikiran said...

As I already explained, the higher standard of proof is required because there is higher scope that someone is lying and because of the scope for misunderstanding.

As for unsoundness of mind, it is actually good that it is broadly defined. We don't want to keep changing it to keep up with medical advances.

I am sure the problem of unsoundness of the accused is covered elsewhere in the penal code.

10:13 AM

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Sameer/Male/27. Hails from India/Maharashtra/Mumbai/Prabhadevi, speaks Marathi, English and Hindi. Spends 60% of daytime online. Uses a Faster (1M+) connection. And likes Reading/Computers.