FACTS
AND MYTHS BY WOMEN'S GROUPS IN INDIA
THE CRIMINAL LAW (AMENDMENT) BILL, 2013, PROPOSED BY THE GOVERNMENT
The Justice Verma
Committee (JVC) report was a landmark statement, applauded by all citizens,
welcomed by all Political Parties. JVC was significant because it showed a
mirror to the Constitution of India, and reflected its wise and just guarantees
of women’s equality. Today the women and youth of India are looking with hope
and expectation towards Parliament, and towards all Political Parties. We urge
all Members of Parliament to pass a law upholding the spirit and letter of the
Justice Verma Committee; to pass a law that makes a step forward in our
collective struggle to end sexual violence in India.
Myth 1: The Criminal Law
(Amendment) Bill 2013 is against men.
Fact: The new anti-sexual
violence Bill is NOT against men. For our fathers, brothers, husbands, partners,
neighbours and colleagues are men too. Are these Men in our lives not committed
to seeking an end to the constant threat of sexual violence lurking around
every corner? Yes, men must, and men do
support this Bill. For this bill is against criminals. It is against the
scourge of sexual violence, and seeks to prevent and protect our society from
heinous sexual crimes like rape, molestation, disrobing and parading women or
stalking.
We
know that men too can be vulnerable to sexual attacks by criminal men. And we
welcome the Bill’s recognition that both men and women can be victims of acid
attack and provides protection to all ‘persons’ for these offences. But we
further ask you, our Parliamentarians, to recognize that men must also be protected against the crime of rape and custodial rape
committed by other men, and to change the definition of victim in section
375 and section 376 (2) to ‘person’ and not restrict victimhood in these
instances to women alone. Men and women are and must remain partners in this
battle against sexual violence. And all ‘persons’ deserve
protection of the law against rape.
Myth 2: If the age
of consent for sexual act is lowered to 16 years, this will encourage child
marriage, prostitution and trafficking.
Fact: The age of consent
for sexual relations in India has stood at 16 years for the last 30 years,
since 1983. The age was increased without adequate public discussion in the
Protection of Children from Sexual Offences Act, May 2012, 9 months ago, and
later, in the hasty Criminal Law (Amendment) Ordinance of Feb 4th
2013. The JVC report recommends that it be retained at 16 years as it always
has been in the IPC, to prevent criminalization of young persons for consensual
sex. Women’s groups are merely asking for it to be retained at 16 years, rather
than increase it unthinkingly to 18 years.
Retaining
age of consent at 16 years does not mean social or moral endorsement or
encouragement of teenage sexual activity. The law is not asking young people to do this or
that. This is merely an acknowledgement that if two young people consensually
decide to engage in sexual contact, we might want to teach them and educate
them but we do not want to treat them instantly as criminals, or consign them
to custody. For that is what ‘age of consent’ means – it means that a boy who
has sexual contact with someone below the age of consent is committing
statutory rape. If that age is now raised to 18, it means that boys of 16-18
years, or slightly older, will be held guilty of committing statutory rape if
they have consensual sex with another person who is also between 16-18 years.
In such cases, the judge will have no discretion under law and will be forced
to place such boys in protection home (if under 18 years) or in jails (18 or
above).
Indian
society does not wish to treat as criminals and rapists young men and women who
might engage in consensual sexual
acts. For we must recognize that ‘criminalizing as RAPE’, the consensual acts
of young adults, will make most vulnerable our young men, particularly those
from marginalized communities. Third party complaints of statutory rape against
young boys will force the Courts to condemn them to prison (if over 18) or
protection homes for juveniles (if under 18) for committing no crime other than
consensual sexual contact.
We
must retain the age at 16 because raising the age to 18 years does not provide
additional protection to young women against rape or sexual assault. It only
serves to increase societal control over the lives and decisions of young
persons, both young men and women. To protect their fundamental rights
including the right to choice and sexual autonomy and agency, the law must keep
16 years as the age of consent for sexual acts.
Why should the age of
marriage be 18 years and consent for sexual acts be retained at 16 years?
The
age of marriage must be retained at 18 years. Marriage is a serious commitment
and entails many long-term responsibilities of life, and it is appropriate to
keep the age of marriage at 18 years. But there is no merit or useful purpose
served by keeping one uniform legal age for every act of a human being.
Studies, surveys and research conducted across India, including in rural India,
all indicate that young people are engaging in consensual sexual activity
between the ages of 16-18 years. The anxiety and legitimate concerns of parents
on this count is real and valid. However, the answer to that lies outside the
law - in education in schools and within families, and communication between
the parents, teachers and young persons.
Retaining
the age of consent at 16 years is only to ensure that when teenagers engage in consensual
sexual activity, it does not lead to young boys being punished and imprisoned. Retaining
age of consent for sexual contact at 16 years does not have any bearing or
adverse impact on the efforts to prevent child marriage, to which we all stand
committed.
Will the age of
consent at 16 years lead to more trafficking and forced prostitution of women
and children?
It
must be emphasized that key to the definition of RAPE is the absence of consent of the woman. Each
case where there is such absence of consent must be treated as a crime and
punished.
In
the case of trafficking and forced prostitution this issue of ‘consent’ whether
at 16 or 18 is totally irrelevant. In cases of trafficking or forced
prostitution, the consent of the girl or woman at any age is neither free nor
voluntary; it is coerced and hence in the eyes of law does not amount to
consent. The issue of age is irrelevant in all cases of trafficking and forced
prostitution. As pointed out in the Justice Verma Committee Report, the police
and other powerful forces are complicit in the crime of trafficking and forcing
women and children into exploitative work. The 2013 Bill has special provisions
to deal with Trafficking and we must ensure that these are rigorously enforced
by the police.
Myth 3: The offences of
Voyeurism and Stalking will trap innocent men.
Fact: The offence of Voyeurism as defined in Sec. 354C
IPC, is very specific and pointed in scope and has no possibility of misuse or
abuse. In villages, towns and cities, we know that the poor do not enjoy the
luxury of a private bathroom in their homes. This makes the young girls and
women particularly vulnerable to sexual abuse even as they perform routine
activities of bathing, attending to the call of nature in fields and open
public places. They are always fearful of men who may use this occasion to
watch them or take pictures of them as they perform these private activities.
The offence of Voyeurism will punish
a man who watches or records a woman while she is in any private act where her
private body parts may be exposed. This offence seeks to uphold the dignity of
women and makes the violation of their fundamental right to privacy a crime.
Stalking: The crime of
stalking takes a serious toll on the life of women. Gripped by fear and anxiety
due to being repeatedly followed by a man, girls and women have been forced to
drop out of education, quit jobs and even change homes to escape the stalker.
The rape and murder of the young law student Priyadarshini Mattoo, is a grim
reminder that if the stalker is not stopped, he can rape and kill. Stalkers are
also known to throw acid on their victims, as a way to take revenge. By making
stalking a crime, the law can actually prevent rape and other forms of
aggravated sexual crimes and save innocent women from being brutally sexually
assaulted or killed. The codification of this crime will fill an important
lacuna in the present law. Only in
situations where a man repeatedly follows a woman, either physically or through
the Internet and this causes her fear or distress, will the crime of stalking
be recognised as such.