This article is written by Gitika Wadhwani, from Jagran Lakecity University, Bhopal. It is an exhaustive article that deals with the problem of rape and corrective measures to improve the future of rape laws.
Table of Contents
One of the most growing problems when it comes to the safety of women is sexual violence against women. And when we talk about sexual violence, one category of violence which is most rapidly increasing and is quite pervasive be it any country is rape. Rape is a serious offence against women. It does not only affect a victim physically but also affects them mentally and emotionally. It is a wrong against society at large and requires serious attention. Every country has its laws governing the offence but still, there are certain lacunas due to which the number of cases constantly seem to be increasing. There is a need for change in the approach to deal with the problem and for the effective functioning of existing laws governing the offence of rape. This duty to bring change does not lie solely with the legislators, public institutions, or judiciary. The collective effort of every individual associated with the administration of justice is required.
India and its perception of rape
India has been a patriarchal society for a long time and even after several attempts, people are still following the same old beliefs when it comes to women and their status in society. People are progressing and trying to change their outlook towards women but a large section of society is not accepting those changes wholeheartedly. Whenever the incidents of rape take place people try to blame women for those happenings. They believe that the dressing sense, the extrovert behaviour, late-night working out are all these are the reasons for women being raped.
There is a large section of society that treats women as a chattel of men and finds it appropriate to treat them as per their whims. If a girl is raped the whole burden of proof lies on her to show the absence of consent. She is further put in a miserable condition by constant interrogation and media reporters which results in low esteem, loss of dignity, and mental pressure on the victim, as a result, many cases go unreported. When it comes to the knowledge of people they tend to have a negative attitude and behaviour , towards the victim. It is considered as a stigma on her and due to such socio-cultural beliefs, people are not coming up with their grievances.
Erasing the word ‘victim’ from the society
There is a need to change the perspective to progress and become more acceptable. The terminology that people use does affect the psychology of people. The words we hear and use shape our minds and lives. We all have a particular way to look at things and define them and generally, it is shaped by our society in which we grow. There are certain words that are often linked with people based on gender, sex such as a beautiful girl, brave man, etc.
People have been gender-biased for a long time and from a similar stereotypical perspective the word victim is used for a long time for women, and men are always considered the perpetrator. This gender blind approach to look at people and define their roles has resulted in a lot of problems and affected the mental and emotional health of people. The word victim resembles some loss, injury and shows a kind of helplessness and weakness. It is believed that women are victims as they are considered weak and incapable. Referring to her through such words reminds her time and again that she has been through those things and also it creates a sense of fear, low esteem, frustration among the sufferer. Due to such a view, it happens at times where there are false allegations against some men. Men are accused of false cases of rape and violence by women that are considered true by society and courts because of stereotypical mindsets. As a result, it takes years for an innocent person to prove his innocence and he continues to suffer for years.
This gender-blind way that has been used for a long time to represent things needs to be changed. The word ‘victim’ is negatively used many times to stigmatize the woman and make her realize that she has been through something bad and often considering her responsible for the same. This in turn makes the situation worse by not letting her overcome her past. Also, it is a stereotype to believe that the word victim is a gender-specific term.
An analysis of the case Kadir Kabir Husen v. the State of Maharashtra
Facts of the case
In the case of Kadir Kabir Husen v. the State of Maharashtra (2021), there was an auto-rickshaw driver who with his brother sexually assaulted a girl after giving beer and some food to her and while the incident took place there was a passerby who is the complainant in this case who was stuck at a signal on his bike when he noticed a rickshaw with black curtains and heard a girl crying. He went and inquired to the rickshaw driver who responded saying that he is having passengers. The crying sound continued so the complainant pulled the curtain and saw a man was forcing himself upon a girl. He pulled him out when he refused to come out. Meanwhile, the traffic police came and the person was apprehended. The accused was charged under Section 354, 363 and 376 of The Indian Penal Code, 1860 (IPC) and Section 8 and 12 of The Protection of Children from Sexual Offences Act, 2012 (POCSO) and he pleaded for instant bail.
The contention of the applicant
- The counsel for the applicant contended that the girl was not a minor as there was no evidence to prove the same.
- The applicant contended that the girl was not raped and she has consented for it and was conscious during the happenings. Also, she was into the flesh trade.
- Further, they supported their argument with the medical records which stated “sexual assault with complete abortion”.
The contention of the respondent
- The respondent contended that the age of the victim is 16 years and was a resident of platform No. 1, Andheri railway station.
- She contended that she was in a drunken state and was forced upon her by a rickshaw driver and could not resist as she lacked the strength.
Major findings of the court
The court found certain things quite strange. When Additional Public Prosecutor was asked about the current status of the victim he stated that she still resides on Platform 1 Andheri railway station even after being sexually assaulted which is quite shocking. The investigating officer seems to be negligent of the legislations that mandate the state to ensure the protection of youth from any kind of exploitation and failed to take the girl to a rehabilitation home or take the assistance of the Juvenile Justice Board. The court, by considering all the circumstances, directed the investigating officer to take corrective measures by ensuring the necessary steps are taken concerning the victim and to have all the suspicions clear.
The future of rape laws and the corrective measures in Indian society
After the infamous Delhi gang rape of 2012, several amendments were made to the laws and provisions related to rape. Despite those changes, there are increasing cases of rape. One reason could be that laws are not implemented as effectively as they are legislated. Another reason is that India still has a long way to go to have an effective system that effectively deals with such issues.
The future of rape laws calls for a more strict approach. There is a need for corrective measures to be taken by all the functionaries of justice. The duty to ensure whether the laws are being followed or violated does not solely lie on the Judiciary but on all the other people who assist with the process. It is important from the initial stage when the FIR is filed that police and investigating officers take into account all the circumstances and ensure that in no case the remedies and protection available for the victim are ignored. The public prosecutor has a responsibility to represent the victim and be mindful of the rights of the victim. Victims should not be further left to suffer or be re-victimized by society, public authorities, or the accused.
There is a need for a gender-sensitive approach while dealing with a man or a woman and not a gender-blind approach to deal with the problem. Irrespective of gender or sex both should have an equal opportunity to present their part of the story. It is better not to pre-define that women are the victims, men are always the perpetrator or it is the women who invoke men and blame her for the entire incident. Whatever happens, efforts should be made to restore and rehabilitate the person and ensure justice. Further, it is important to set an example in society by giving adequate punishment to prevent such crimes. At the same time, the media must maintain the anonymity of the survivor.
Following ways can be used to prevent rape culture in the society and protect the survivor:
- A change in the perspective of society is required. People should not blame victim for rape and should have an empathy and understanding outlook towards the problem.The lawyers should work pro-bono to get justice for women where victims are not in a condition to afford the expenses of the case.
- The word victim should be avoided.
- Shelter homes and other rehabilitation homes should be made available and the survivor should be informed about all the facilities that she can avail.
- A proper investigation must be carried out in all cases.
- The case should be resolved in a time-bound manner.Fast track courts set up for dealing with the cases related to rape will help in speedy and effective disposal of cases.
- The victim should not be blamed.
- Laws must have zero-tolerance approaches towards sexual assault.
- Sex education is an important tool.
- Proper medical facilities should be available for the survivor.
- The media, judiciary, police officers, and prosecutors should perform their functions effectively.
- Women who have been victimized should have access to free legal-aid services and economic conditions should not be a barrier in accessing justice.
Women are not safe outside. There is continuous exploitation of women in the form of sexual abuse which can take a more serious form of rape. Despite the continuous efforts of the legislature, the law is lacking due to improper implementation and lack of social support. People are generally stereotypical when it comes to rape and criticize women for staying out late at night, wearing short clothes, going to parties, etc. This deteriorates the condition and sometimes encourages men to believe that the duty to control does not apply to them and they are at liberty to get provoked by their sexual arousal. This mindset requires a change and a balanced approach is needed to ensure the proper functioning of laws and the safety of women. At the same time, it is the duty of the police officers, public prosecutors, investigating officers, and defence lawyers to ensure that the parties have full access to justice and not be denied the remedies and rights due to the negligence of any functionary.
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