Finally, I need to say this out in words. The last few days have been nauseating.
The incident in Delhi has got us down on our knees. The whole nation, the whole masculine gender – we have brought unbearable shame upon ourselves. We have no place to hide; it’s our own bestiality staring right back at us. It’s not the brutality that devastates us. Yes, it does make the incident more grotesque. But what cuts through the skin (if they are not rawhides) is the realization of this cancerous malaise that is all around us and the consequential helplessness to be able to bring about meaningful change. The fact that no matter what you do, the system we live in perpetrates, allows, and even condones such acts. Despite the gore, despite the media, these things continue to happen throughout the country with alarming regularity – maybe Delhi is a few steps ahead of the rest of us.
What follows are my personal thoughts on what can improve the situation. I am not an expert on jurisprudence or gender violence so what I say may not stand up against cynics who would want to find loopholes in the argument. I am not a convincing writer either so some of this, I am sure, many will find immature; trite. But as a daddy, a son, a husband, a brother — this is how I truly feel today.
The problem today in India is not rape. It is sexual assault on women – and that comes in various shapes, sizes and colors. Maybe it is not even the assault per se, but the impunity with which it is perpetrated almost with a sense of right (haq) and righteousness.
The punishment is not the challenge here; the first hurdle is to prove the accused guilty of rape. We know how difficult that is given the extremely narrow physical definition of rape. More detailed coverage here. We have a reasonably fair idea how defence lawyers can utilize loopholes in the current existing laws and get away with it. How you can essentially humiliate and shame a woman publicly in the name of interrogation and get away with it. I do not need to argue this too much; 25% conviction is self-evidential. It is much easier to prove murder, statistically speaking.
Here are a few tenets I would like to propose (with the full knowledge that they will not cross the digital borders of my blog)
Define ONE punishment for a CLASS of sexual assaults REGARDLESS of the nature of the assault.
Who cares whether you technically “raped” someone or you came back home drunk and beat your wife black and blue or you poured acid on the face of a girl who spurned you. Who fishing cares ? You deserve to be punished. And severely punished. Crack your knuckles with pliers punished. Maybe you had the intent to rape a girl in the wheat fields but her cries (thankfully) attracted attention before you could get your trousers down and your antenna up. You deserve to be punished no less than a rapist.
I argue that a list of offences be created all of which attract the same penalty (more on the penalty later).
- Intent to rape that can reasonably proved
- Molestation or intent to outrage the modesty of a woman
- Physical assault on a woman that can be reasonable assumed to be with the intent of subjugation (there needs to be some riders on this)
- Physical confinement with the threat of physical assault e.g locking up a woman in a room
This list is far from comprehensive. What goes into this list, and with what granularity and what riders (important) is open to debate and needs to be dictated by a committee — composed primarily of women. May be this list grows or shrinks over a period of time. But the idea is simple – you have wronged a woman, you deserve to be exemplarily punished. And the punishment should be the same because we, the people of this country, will assume that you intended to wrong her in the greatest possible way; but (again, thankfully) could not because circumstances played against you.
I understand this is a clear deviation from our system of law (not just in India, but globally) where the quantum of punishment is usually proportional to the crime. But let’s not make crimes against women the usual stuff. What I am saying is, specifically for this class of crimes against women, debunk that.
The Punishment. I am not quite pro capital punishment. That’s a personal stance. Further, I think the current cry that rapists be hanged is a very more the result of the (valid) outrage rather than sensible thinking. It’s more about vengeance than justice. Maybe it is chemical castration, maybe it is life hard-labor imprisonment until death with no chance of parole.
Speed. No more than nine months should pass from the date of first report of the crime for the punishment to be announced if the accused is/are found guilty. After the passage of six months, the state government should pay the defendant (for lack of a better word, victim) a monetary compensatory sum for each day of delay. Law and Order is a state subject.
Presence is complicity. If you are proven to be at the spot of crime and the woman accuses you of complicity, you will be meted the same punishment if the principal accused is found guilty. You would be deemed to have directly and significantly aided in the perpetration of the crime.
I feel this can be a major deterrent. Many of these crimes are committed in groups because it is well established that animals derive strength in herd. It is imperative to break the backbone of this herd mentality.
FIR, Immediate arrest and non-bailable warrant. The Police establishment will have no option other than to register an FIR, arrest the accused (if available) immediately and produce him/her before an appropriate legal authority. The highest ranking officer in the Thana at the time of the incident report should be immediately served a legal notice if an FIR is not lodged. Any offence in this class will be considered cognizable, non-bailable and without provision for anticipatory bail.
Burden of proof. Today the burden of proof lies with the woman who has been wronged. Flip it 180 degrees. The accused must prove beyond reasonable doubt that he did not commit an act of sexual assault on the woman.
Pan-India applicability. Make this law applicable throughout the sovereign boundaries of our country including where there is Army rule such as Manipur and Kashmir. I dare say, they need it more. With due respect to our soldiers, the Army is for the people of this country, not the other way round.
Anti-invite clause. No ancillary factor such as clothing (read mini-skirts), time, location, character or profession of the victim (e.g a prostitute) or any other argument by the defence prosecutor which seeks to prove that the woman invited this upon herself will not be entertained in the courts. These cannot be used as a criteria by the defence prosecutor to prove the innocence of the accused. [This could even have the positive side effect of dampening flesh trade]. The defence will have to categorically prove adult consent beyond reasonable doubt.
I am cognizant that this path of thinking could lead to a number of misuses of the law (which one does not have) in that a number of innocent men/women could be dragged to court by women bearing malafide intention. Reputations can be destroyed, inhuman psychological pressure can be brought to bear on the accused, families can be destroyed. 498A is a classic example. There are many ways in which this can be brought down with insertion of appropriate misuse clauses. The ability to prove malafide intention and self inflicted harm by the defence can be an easy way out. All things considered, I say, the rate of such cases would be substantially less than the number of women who are having to face humiliation today.
Class equivalence of sexual offences makes it much easier for law enforcement agencies to bring the culprits to book and make it really difficult for defence lawyers to manoeuvre their way out on technicalities. You would immediately see a spike in conviction rates.
Now that is a true deterrent. The next team some perv feels that urge to tug the hands of a little boy inside his dhoti in a crowded mela, he should think thrice. One strike and you are out my friend. Anything close to a serious sexual assault and you are gone for good. Your lawyer can’t get you out on the grounds that the woman was wearing mini skirts. Or you had too much of chowmein that day.