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Monday, July 16, 2018

For women,not just by law

Structural changes in the criminal justice system are needed for the amended rape law to be effective

Written by RK Vij | Published: July 31, 2012 12:46:46 am

Earlier this month,the cabinet approved changes in the law relating to crimes against women. The word “rape” shall be rewritten as “sexual assault” in the law books. But how long these changes will take to filter through the criminal justice system is difficult to estimate. It has been 30 years since the law relating to rape was amended. Its definition was made more stringent and vast. Authorities in dominating positions were made more accountable. The burden

of proof was conditionally shifted to the accused. A new section to this effect was inserted into the evidence act.

These changes were triggered by the Mathura case,reported as Tukaram vs State of Maharashtra,1979. It involved the prosecution of two police personnel for rape. Mathura,a minor girl,was allegedly raped by policemen inside a police station. A medical examination showed that she had no injury on her person. Her clothes and those of the alleged rapist,however,showed traces of semen. The trial court acquitted the accused. The judge felt that the probability was that of an affair with consent. The Nagpur bench of the Bombay high court,on appeal,reversed the order and convicted the accused,presuming that “passive resistance” at a police station could not be equated with consent. But later,the Supreme Court acquitted the accused,saying that the prosecution had failed to prove each ingredient of the offence. Also,it was for the prosecution to prove that her consent was obtained by putting her in fear of death,or of hurt. This ruling,however,infuriated many women’s organisations and the government,respecting the sentiments of the nation,amended the law in favour of women.

The effect of the new Section 114A,in force since 1983,is that where the question before the court is whether intercourse between a man and a woman was with consent,and the woman states in court that it was against her consent,the court shall presume there was no consent. Thus,the burden of proof is shifted to the accused. If he is not able to prove that there was consent,he becomes guilty. The new provision applies to incidents of rape committed by a police officer,jail management or hospital staff with a woman under their custody or care,a doctor with his patient,gang rapes,and rape committed on pregnant ladies. The basic premise is that women under these circumstances are not able to put up sufficient resistance against sexual assault.

If we look at the conviction rate of such offences,the situation has hardly improved. The prosecution still has to prove every case beyond reasonable doubt and to establish proof of the sexual act in such cases. The common method of establishing intercourse between the victim and the rapist is the presence of sperm. However,in certain cases,even with the victim stating that she denied consent,the accused were acquitted because the prosecution could not establish the individuality of the sperm. The credibility of the woman’s consent is sometimes questioned and ultimately discarded on minor contradictions. Under such circumstances,seeking a conviction becomes a difficult task.

The matching of DNA is the only proof that can be said to be conclusive. Therefore,the foreign material,whether semen or blood (of the accused),collected from the person of the victim should be matched with the blood sample collected after the accused is arrested. Although the criminal procedure code (Section 164A) now makes it mandatory for the medical practitioner examining the victim to collect material for DNA profiling,this has not been implemented on account of lack of knowledge and resources. Not all state forensic science laboratories in the country have DNA testing facilities and each test is expensive. Unless such facilities are available in each state and enforcement agencies are given sufficient funds,legal provisions will continue to remain dormant.

It is also surprising that the CrPC provides that the copy of the decision of the session court cases shall go to the district magistrate whereas the public at large is of the impression that the police is responsible for not filing appeals with the higher courts. The High Court Rules and Order (Criminal) also contain similar provisions. Theoretically,the police have no say in filing revisions and appeals in criminal cases. These provisions ought to be suitably amended to allow the police to analyse court orders and file appeals and revisions in higher courts after seeking the prosecution’s advice.

The latest amendment to the CrPC proposes that the reports of sexual assault and outraging modesty shall only be recorded,as far as possible,by a woman police officer. This is welcome,but the amendment will be effective only if the country has sufficient woman police officers to record such reports. The National Crime Records Bureau’s statistics for 2011 indicate that women constitute only 6.5 per cent of the total police force in the country. The total number of senior policewomen is only 8,263 against 14,042 police stations in the country. Further,three states — Maharashtra,Tamil Nadu and Delhi — have more than half of these officers. In order to have at least one female police officer in each police station on an average,their strength must be more than doubled. Gender sensitisation for the judiciary,prosecution and police should be pursued simultaneously. Unless these structural changes in the criminal justice system are made,every amendment will continue to remain a mute spectator to the status quo.

The writer is inspector-general of police in Chhattisgarh

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