Rape law: Are women activists barking up the wrong tree?

A bad workman invariably complains about his tools. Does the analogy hold good when a policeman cribs about the inadequacy of the law? Not really. He has no doubt many faults, including more than a streak of insensitivity and dishonesty while dealing with crime victims.

But you must remember that he is, at the same time, stuck with far too many archaic statutes which curb his professional response to crime. Both the Criminal Procedure Code (CrPC) and the Indian Evidence Act  are so loaded against the crime investigator that it is a matter of wonder we can still get a few offenders convicted by the courts.

Take, for instance, the  CrPC prohibition against keeping a suspect in police custody beyond 24 hours. The rationale: the police will otherwise resort to illegal custody of hapless suspects. Equally prejudiced is the Evidence Act’s stipulation that no confession made by an offender to a police officer will be admissible in evidence, unless it leads to the recovery of a material fact.

These and similar provisions of law are meant to quell dishonesty in the police. But they also have the unintended and undesirable effect of transforming a large number of honest policemen into being dishonest.

It is against this backdrop that we may have to examine the latest Cabinet clearance for changes in the law against rape. These have come about after more than a decade of debate over the Law Commission’s recommendations in their 172nd Report.

 Rape law: Are women activists barking up the wrong tree?

Women activists protesting against the recent Guawahti molestation case. PTI

There has been a mixed response to these changes from women activists. Their objection to rechristening ‘rape’ as ‘sexual assault’ and making the crime gender neutral is perplexing. They feel that ‘sexual assault’ makes the crime of ‘rape’ less grave. My belief is that they should be more concerned with the definition rather than the name given to the offence. They are right to assert that assaults on men are few and far between, a fact that perhaps does not warrant specific recognition of the phenomenon.

However, I still fail to understand why this new feature in the criminal law should excite them. It is nothing more than a recognition of perceptible changes in human behaviour and the near legalisation of gay marriages in the West, something that we could witness in our own country not long from now.

Gay alliances in matrimony are bound to bring in the menace of man attacking man in pursuit of sex. We already know how young boys are preyed upon by elders in positions of authority or influence. The latest scandal at Penn State University, where a football coach indulged in systematic abuse of boys for more than a decade, may cease to be an aberration very soon, but become a frequent occurrence in the most unexpected places.

The enhancement of the age of consent for sex from 16 to 18 is another concession to societal change to which we can hardly take exception. Enhancement of penalties, especially in the case of custodial rape, is a move in the right direction.

Generally speaking, therefore, the government’s move to tweak the law on sex offences is to be endorsed rather than criticised. Let us wait to see how Parliament reacts to the bill when it is introduced. I hope both the Houses will deliberate rather than rush through the process.

What amuses me, however, is the superficiality of some of the women’s organisations in discussing the subject in public. They seem to believe that strong penalties will deter crime against women. This is hardly the experience the world over. It is the certainty of punishment rather than severity that can bring down crime in the future. A spinoff is also that courts will demand a higher degree of proof when imposing a sentence as harsh as seven years.

Given the peculiar circumstances — especially the secrecy that envelops the predator’s conduct — under which sexual attacks take place, proving criminal behaviour in rape is a complex task. We cannot also be blind to the fact that, in a large number of cases, the offender is very well known, as a friend or a relative, to the victim. As a result, evidence collection and credible testimony by a victim or her associates become problem-ridden.

This is why a majority of sexual offences fail in court. We can possibly improve the situation by enhancing the quality of police investigation, again an exercise that needs great skill and perseverance at the investigator’s level. An occasional case that invites huge media attention receives fair police attention. But what about cases reported from rural India which do not excite TV channels or newspapermen, only because of the lack of glamour and difficult access to victims who are invariably intimidated into silence?

There is a real sociological problem here which no law can tackle. If pessimists, therefore, assail the proposed changes to the rape law as being merely cosmetic, we cannot get worked up. This is the hard reality of an India which wants to be modern but remains steeped in a welter of ancient beliefs and customs. If the police force reflects this contradiction, it is but natural, however frustrating it might be to many of us who look for a sleek and efficient law enforcement agency.

The writer is a former Director, Central Bureau of Investigation, and New Delhi.

Updated Date: Jul 21, 2012 14:04:40 IST