Wednesday, Nov 26, 2014

Not by a stricter law alone

Posted: August 29, 2014 12:22 am | Updated: August 29, 2014 6:26 am

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By Flavia Agnes

December 16, 2012 was a turning point in the history of the anti-rape campaign in India. Following the brutal gangrape of a young woman in a moving bus in Delhi, the country erupted into protests that had a common refrain — death penalty for rapists. The underlying presumption was that stringent punishment will act as a deterrent and reduce the incidence of rape.

A demand for stringent punishment was also raised during the first phase of the anti-rape campaign in the early Eighties, following the adverse Supreme Court ruling that acquitted two policemen who had raped a poor, 16-year-old tribal girl in a police station. The acquittal was based on the grounds that since there were no marks of injury on her body, she must have consented. The girl was dubbed a liar and her character was called into question. The public protests, though much smaller in scale, also resulted in reforming the antiquated rape laws in the country.

The 1983 amendments for the first time prescribed a mandatory minimum punishment — seven years for general rapes and 10 years for aggravated cases such as custodial rape, gangrape, rape of pregnant women and of children under 12 years of age. The maximum for both was life imprisonment, which meant 14 years. However, National Crime Records Bureau (NCRB) data belied the assumption that higher punishment acts as a deterrent, as the graph of reported cases showed an upward trend, year after year. Even worse, while there was an increase in the number of reported cases, a corresponding increase in conviction rates was lacking. In 2013, the NCRB reported a conviction rate of 26 per cent for rape cases, but our own research for Mumbai places this at a much lower level — a mere 10-12 per cent.
In addition to shoddy investigations and indifferent prosecutions, the victim’s past sexual history was advanced as a mitigating factor to plead for less than the prescribed minimum punishment, even in the rare cases where conviction was secured.

The 2013 amendments not only broadened the definition of rape to include sexual acts such as oral and anal sex and insertion of objects, but also prescribed even more stringent punishment, such as life imprisonment for the remainder of one’s life, a minimum of 20 years for gangrape and death penalty for repeat offenders.

How do these provisions play out in trial courts? It is too early to comment. However, as against the usual arguments advanced by the defence regarding the victim’s character and conduct to plead for acquittal, the prosecution has started advancing a new type of argument to secure conviction, “public sentiment”, “national honour” or “the prestige of a city”. The media hype created around certain cases adds to this. Disturbingly, cases in this category in recent times have a class attribute to them, where the accused belong to poverty-stricken backgrounds. In the Shakti Mills case, which was the first high-profile case after the amendment, the death penalty was continued…

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