Enforce Existing Laws Diligently

In fact, the existing legislation on rape is adequate, rendering the need for the death penalty redundant. It is the will to enforce the law with diligence and without delay that allows offenders to get away with the crime.

Offences against women vary in nature. Rape, molestation, cruelty, dowry demand and bride burning are just some of them. However, except for rape and outraging themodesty of a woman (as the law quaintly defines sexual harassment), other offences are capable of being committed by women as well.

Rape is considered one of the more heinous crimes against women and the law has evolved with changing social values. For instance, amendments to Section 376 (which prescribes punishment for an offender) of the Indian Penal Code (IPC) have made special provisions to deal with situations like rape in police custody, rape by public servants, gang-rape, etc.

Offences against women in tribal and rural areas are committed more frequently than in urban areas. In rural areas, a large section of women are illiterate and from backward classes and with restricted to legal recourse, the offences often go unreported and are seldom seriously pursued.

Statistics indicate that compared to the actual incidence, less than half the cases are reported and a large number are hushed up for various reasons.

Usually, this is due to family and social censure, threats from offenders andinducements. Then, of the reported cases, some fail for lack of serious persuasions. Hence, it is only a negligible percentage of cases of rape that finally result in conviction.

It is precisely this poor conviction rate and not the lack of severity of punishment that accounts for the rise in the incidence of such offences. Hence, the present prescribed sentence of 10 years or life imprisonment for a rapist cannot be said to be inadequate.

The peculiarity of a rape case is that this offence is committed in privacy, where eyewitness are usually not present. The victim’s account coupled with medical and other circumstantial evidence is deemed adequate to prove the offence and punish the guilty. And, unlike other criminal offences, corroboration by oral evidence is not a must in rape cases.

Section 375 of the IPC defines rape and Section 376 prescribes punishment for rape. Rape as defined under Section 375 is: “A man is said to commit `rape’ who except in the case hereinafter excepted, has sexualintercourse with a woman under circumstances falling under any of the six following descriptions:

First: Against her will
Second: Without her consent
Third: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt
Fourth: With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married
Fifth: With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent
Sixth: With or without her consent, when she is under 16 years of age
Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape

For theaforementioned reasons, instead of making the offence punishable with death, there are other ways to get results. To ensure that in genuine rape cases the culprits do not escape punishment the following steps can be taken:

1) The victim should be encouraged by the police officer investigating the crime to speak the truth without exaggeration. Her version should be recorded with precision and without delay. It must also be ensured that she is not speaking under the influence of her parents or other relatives. Intervention by a reputed women’s organisation would help destitute victims.

2) Circumstantial evidence must be collected by honest and diligent means and medical reports should be obtained without delay.

3) Effective representation by the prosecution should ensure denial of bail to the accused in suitable cases.

4) After the chargesheet is filed, a reasonably good and experienced lawyer should be appointed to conduct the prosecution.

5) Lengthy and humiliating cross-examination of the victimshould be disallowed.

6) Recording of evidence must be done within a year from the date of the incident and the case must be decided within two years.

7) Whenever possible, women judges should be assigned such cases and proceedings should be conducted in camera.

The reality, however, is starkly different. Rape cases are kept pending for eight to 10 years. They are neither investigated diligently nor conducted effectively during trials. The victims grow into housewives or their in-laws would not want them to present evidence in court regarding sexual assault, which, they feel, is best left forgotten. But the casualty in such culpable delays and indifference is justice. The existing laws have sufficient teeth and are adequate enough to deliver the goods — only if the spirit in its enforcement is not lacking.

(A Majeed Memon is a senior criminal lawyer)