| Issue 21 Vol I, August 15, 2006 | Archive |
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Apathy of a rape victim
The comments emanated from the agony the weaker sex has been subjected to by the eternal aggressive behavior of the man particularly relating to sex. From the tribal head to the feudal lord, the raja, the King, were at liberty to keep as many women, of their choice, in their residence or their 'harem'. The institution of marriage, limiting the number of wives could easily be defied, command of the King being the law, the despot being above the law, the men of sources being capable of evading law, the women continued to be subjected to force and to be exploited. Society did endeavour to contain sexual harassment by enacting Penal laws and providing severe sentences, but the real apathy of woman starts after she is subjected to sexual harassment particularly rape. The trials, the stigma the scorn, add to the agony. The extent of crime is astounding in India and Delhi has been named as the rape capital with over 1,600 cases reported a yea back. Experts believe that for every case reported at least ten go unreported. Listen to the reaction of women watching news on Television, showing or naming a man charged with rape. "He should be shot at the spot", is the uniform reaction. Demand for death sentence of such persons has long been there. Why do people escape punishment? Rape is complete seizer of the woman for penile action. Law gives the woman a right of self-defence. Section 100 of the Penal Code provides that the right of private defence of the body extends to the voluntary causing of the death or any other harm to the assailant, if the assault is with the intention of committing rape. It is subject to restrictions provided in Section 98 that it does not extend to, youth, the want of maturity or understanding, the unsoundness of mind or the intoxication of the person doing that act or by reason of any misconception on the part of that person. It is further limited under Section 99 where the apprehension is not reasonable; this right is not to be exercised. A woman being subjected to an assault cannot be supposed to ascertain before acting in self defence, if the man is of unsound mind for reasons mentioned or that his apprehension is or is not reasonable, coupled with the fact that the over awe gripping her during assault does not leave her capable enough to judge, react or even counter assault much less causing his death with rare exceptions. Then the legal wrangling emerging from the definition of rape in Section 375. The rape being sexual intercourse with a woman, against her will, without her consent, or having obtained consent by fraud or putting her under fear of death or of hurt, or by making her believe that he is her husband when actually he is not, or when, while giving consent, she is of unsound mind, or intoxicated and is unable to understand the consequences of such consent or even with free consent when she is under 16 years of age. During evidence the assailant tries to bring his case under any of the exonerating exceptions or letting the victim prove beyond any reasonable doubt the commission of offence, prolonging the trail subjecting the victim to insensitive cross-examination. Some times of unscrupulous nature, in open court and in public view unless the court decides to hold the trial in camera. The worst effected is some times the married woman. Law providing that sexual intercourse by a man with his own wife, the wife not being under 16 years of age is not rape. Even when the husband is suffering from a virulent or infectious decease or divorce proceeding are going on, the act is not rape as the consent given at the time of marriage is implied in law to be continuing till the nuptial tie is untied. Some recourse is however now provided with the passing of The Protection of Women from Domestic Violence Act, 2005 providing some rights to the woman victim of sexual abuse by her husband or even by a man with whom she has been living under the same roof without marriage. The Act does not provide the misbehaviour as an offence but only entitles the woman to seek a restraint order against the husband or the man as the case may be or damages. The violation of restraint order would, however, be offence. The restraint order can direct the husband not to have physical contact with his wife. Further the Union Cabinet has approved the bill approving some changes in the criminal procedure for trial of rape cases. It is proposed that rape cases be tried by woman judges. The statement of witnesses is recorded by magistrates before trial and video recording shall be admissible. The victim is given right to appeal in case the accused is acquitted. The trial is to be in camera without exception to save the victim from embarrassment in open court by insensitive cross-examination and the trial to be a speedy trial. In the U.S.A. there is strong demand for trying a rape accused according to the procedure meant for civil cases in order to lessen the burden of proving the guilt beyond doubt, to have the version of the accused at the initial stage and to have a right to claim heavy damages along with. The female, the feminist, the elite, the conscious are all worried about crime rather increasing. A more serious effort is the urgent need of the day. Joginder Singh Toor, Advocate, jogindersingh_toor@yahoo.com |
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