December 30, 2012

Dealing with Sexual Violence: A Primarily Legal Perspective

Also see: 
On VAW, Rape, Reform, and Rhetoric


A few random thoughts on sexual violence, amending the law dealing with it, and curbing it are contained below. They were originally written in the context of VAW. They are rife with personal opinions, and may be far from ‘right’. The original tweets are at twitter.com/nsaikia.


  1. Minors should not be routinely tried as adults no matter what the crime is.
  2. If we're going to fiddle with the age of consent (and even if not), 'proximity' should be an exception to statutory rape. A proximity clause would protect those of roughly the same age who are involved with each other.
  3. The focus should be on more certain punishment, not on harsher punishment (which will also enhance evidentiary requirements).
  4. Fast track courts are not guaranteed to provide better / surer justice but we do need more courts and better infrastructure. Placing deadlines on the dispensation of justice may not work out well especially if deadlines are short and/or inflexible.
  5. Existing bodies like the NCW should be restructured and possibly given more powers so that they can play a greater role in fighting sexual violence.
  6. Gender sensitization courses should be conducted for those involved in legal processes to ensure maximal familiarity with the nuances of VAW and sexual violence.
  7. Creating enhanced infrastructure, sensitization, etc. requires funding; there should be funds clearly earmarked for dealing with violence against women and sexual violence.
  8. If amended, the law should explicitly prohibit the use of anti-victim practices in cases involving sexual violence such as asking for medical proof of rape (i.e. refusing to recognise rape in the absence of medical evidence), bringing up the sexual history of a victim, or even recognising compromises/marriages between rapists and their victims (particularly as a mitigating factor) in relation to either conviction or sentencing.
  9. If amended, the law on sexual assault should recognise that there's far more to sexual assault than the 1860 definition and understanding of rape. The semantics don't matter, whether we call it rape or sexual assault is irrelevant, as long as we have the whole spectrum of sexual assaults included in criminal sexual violence. If amended, the law should also ensure that there are no groups against whom sexual assault is permissible like wives when raped by their husbands. Further, the law should do away with the criminalisation of any consensual sexual conduct between competent adults – Read: Section 377, IPC. However, the law should explicitly recognise both all forms of sexual assault (as mentioned earlier) as well as the entire range of possible victims: children, men, women (regardless of profession) – Read: Sex workers can be raped.
  10. When it comes to sexual consent, the law should be clearer about what does and does not amount to legally valid consent. Sexual consent should ideally take into account non-conventional lifestyles,  and have a clear, possibly separate, position regarding them. Regardless of consent though, the law should recognise a line beyond which sex, even if consensual is illegal where violence is involved. (In other words, ‘consent’ should not be used to mitigate liability if grievous injury is caused by one person to another during sexual activity.)
  11. If amended, the law should provide for any fines levied on a rapist by a court to be payable to the victim. It should also require rapists to pay their victims for all costs associated with the rape, both direct and indirect. Direct costs arising on account of rape include medical and legal costs; indirect ones may arise one account of lost income, etc..
  12. There should be infrastructure (for which there are funds allocated) which provides legal and psychological support to victims of rape. There should also be changes made to the educational system over the long-run to ensure syllabi do not contain content promoting gender inequity (which may contribute to depriving the victims of sexual assault of societal support).
  13. The law shouldn't prescribe death for rape; there's no certainty it will deter rape, and a chance that it may turn rape into murder. Castration by itself may not cause a man inclined to sexually assault another to stop doing so; the law shouldn't mandate it. Castration without imprisonment will only prevent a man from committing rape with his body; he can still rape with anything else. Castration with imprisonment is not required; prisons should be environments where it isn't possible to commit any form of sexual assault anyway. Only cutting off access to potential victims is certain to keep a rapist from raping; the law should mandate long prison terms.
  14. Once a rapist has been convicted and released, the law shouldn't make it virtually impossible for the rapist to live outside prison. Sexual offenders' registries, if introduced, should be accessible only on a narrow need-to-know basis, with the 'need' specified and permitted by law.

Note:
I've licensed this blog post under a CC licence so that legal use can be made of it without checking with me. However, if you do use it, I'd appreciate it if you could let me know in a comment or via eMail. Thanks.

Creative Commons License
Dealing with Sexual Violence: A Primarily Legal Perspective by Nandita Saikia is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License. Based on a work at http://coldsnapdragon.blogspot.in/2012/12/dealing-with-sexual-violence-primarily.html.