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Popular perceptions, Sexual Assault and the Law

I have found a general lack of information or understanding on how our legal system handles sexual assaults on women and issues thereof; This is an attempted discourse on the same:

I tackled this issue long ago, before I became a law student, in a Facebook post in June 2015, which is available here.

This is the post and my opinion on it, almost 2 years ago:


The Post in question

I saw this post in Womansera and was quite puzzled. Was our nation this Bad in Woman’s Safety? Are we a land of Rapists? So I decided to Check all nations mentioned one by one: Afghanistan:Rape in Afghanistan is a crime which can be legally prosecuted, but in practice it is very rarely reported, because of the immense risks that women face if they report it. Rape victims in the country face a double risk of being subjected to violence: on one hand they can become victims of honor killings perpetrated by their families, and on the other hand they can be victimized by the laws of the country: they can be charged with adultery, a crime that can be punishable by death. UAE: The Laws on rape are ambiguous And There is little or no Verifiable data. However, I found this: and i quote the relevant parts here: “In the UAE, as in some other countries that use Islamic law, a woman can only help convict the man who rapes her if the accused confesses or four adult men must testify as witnesses.So, when 24-year-old Marte Deborah Dalelv reported being raped by a colleague while on a visit to Dubai, the Norwegian woman was sentenced to 16 months in prison for having premarital sex, a crime in the UAE. She was pardoned on Monday by Sheik Mohammed bin Rashid al-Maktoum – the kingdom’s vice president.”Iran:A husband can kill his adulterous wife without punishment while a woman is punishable by death for a similar crime.According to Islamic law the killing of a virgin woman is prohibited. This reflects the objectification of women. In prison, if a virgin woman is to be executed, she is first “married” (raped) by one of the guards before execution. Afterwards the guard goes to the woman’s family and declares that she is their son-in-law. It is totally distinct from the process of obtaining confession or to humiliate the prisoner. The prison guards are simply obeying Islamic law.

China:The laws against rape in China have been criticized by numerous sources. Same-gender rape is not illegal in China, and loopholes in the laws allow child rapists to escape with light sentences. 31,000+ cases reported, compared to 24,923 rape cases were reported across India .

Yes, We do have a problem of rape. It’s not about What other countries are doing. It;s about what we should do. Instant Justice for Rape Victims must me made Available, but they must follow the rules, and procedure of law. Instant Punishment isn’t the way forward, it’s Change of mentality.

This post and posts like this are indicative  of a larger problem that I’ve noticed: the (well-intentioned) belief that harsher punishment deters criminals. This may seem to make sense prima facie. But if you are to base your data on empirical evidence, you will not arrive at a similar conclusion.

What do I base my claim on? A study by the National Research Council of the United States of America. [available here] The Study suggests that the effect of harsher punishments are at the best, modest.

(Of course, this study was in America, and we need to be cautious in the application of the results/conclusion of this study to India, but since there is an acute dearth of research material, one has to depend on the sources available. Also, This study concerns the possible deterrence effect of punishments, so it is possible to apply the results, in the absence of anything of the same variety domestically.)

 The post above suggests that Criminal Justice Systems in Authoritarian Oligarchy and Islamic Nations that apply Sharia are better than the system of our Democratic Republic. This is not a stupid, stupid comparison, as a 17 year old me with only a basic idea of the legal system and minimal research detailed. Yet this seems to be a prevailing view that many have.

But that is not true: and that is not the solution to the issues we face. What we face is something that is multilayered and the solution is not as simple as getting harsher instant punishment.

I am not by any chance saying that we face no issues in our criminal justice system. There are issues that sorely need to be addressed, yes. But none, in my humble opinion rather than the need for an effective police force. We lack this the most. The other issue is the swiftness of our Justice System. Our justice system is painfully slow, and a solution to that – more judges and speedier trials are a solution that are being mooted. The issue is however debated in social media in a rather barbaric manner, people vouch regularly for swift and instant justice. That is wrong. There is a reason we have the presumption of innocence. An innocent man should never be punished, and to hold on to that ideal, we cannot have random executions of anyone accused of a crime. Mob Justice is never the answer. A thorough process is necessary for a person to be convicted of a crime, not just a simple accusation and  circumstantial evidence.

Another issue is the insensitivity of the Justice system. sadly, this is never debated in Public circles or seen as an issue.

Now, regarding how to tackle this at the instant:

Firstly, there is disinformation like in the post attached. We need to know the facts of the issues at hand, which currently are not there. There needs to be an active discussion among all the stakeholders and civil society in general on how to deal with these issues. Secondly, we need to demand from our government an effective police force, independent of politics. Thirdly, we should remember that the systematic inequality that women face. I would like to rehash and reemphasize the points I made in The system is broken:

Organize yourself. Teach your children about the Importance of bodily autonomy. Teach them that mental, physical and verbal abuse is wrong. Teach them that all Humans have their dignity. Support your local Women’s self help groups. Support Women’s advocacy groups. AND DON’T STAY SILENT. SILENCE IS THE FIRST STEP TO ACCEPTANCE. NEVER NORMALIZE THESE INCIDENTS. DON’T VOTE FOR POLITICIANS WHO DO

I’d like to add one more thing :

Discuss issues, and be an informed citizen.

Looking to other countries and their experiences dealing with the issue of sexual assaults and rape is good, a positive step. But we must pick and choose those democratic countries that have had an experience dealing with this. Do not reduce all these complex issues into something as simple as having harsher punishment. What we require is swift and certain Justice.

As always,

धर्मो रक्षति रक्षितः Dharmo Rakshati Rakshitah

Those who protect Dharma will be protected by it. 

Further Reading


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