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Dealing with Rape

Jan 28, 2013 Editorial

In India, PM Manmohan Singh had established a panel under Justice JS Verma to consider possible amendments of the criminal law in response to public anger after the rape and subsequent death of the student, who was assaulted with metal bars and dumped bleeding on a highway in New Delhi.  Remarkably, the three person committee wrapped up its work within 29 days and submitted its report to the government after receiving around 80,000 suggestions and submissions. There is much that Guyana can learn from the report.
Intriguingly, in view of the public rage provoked in India and other countries over the brutal gang rape, the report insisted that India needs to implement existing laws, not introduce tougher punishment such as the death penalty, to prevent rape. This recommendation was in line with the opinions of rights organisations concerned harsh new laws would not solve the rising number of reported sexual assault cases in India.
Even though officially titled, “The Report of the Committee on Amendments to Criminal Law”, the committee did not confine itself to criminal law relating to rape and sexual assault. In a groundbreaking departure, it comprehensively outlined the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.
If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction. The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the provision of safe spaces for women and children.
Entering the debate that is raging in many countries right now, including Guyana, the Report argued that “cultural prejudices must yield to constitutional principles of equality, empathy and respect”. It brings sexual orientation firmly within the meaning of “sex” in the constitution, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.
Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”
In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature. The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature.
Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape.
In rejecting the death penalty and castration, which had been suggested by some, the nature and quantum of punishment were not ignored. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum.

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