Rape, yes, the first thought that crosses the mind on hearing this word is a feeling that a rape victim has to go through daily.
According to the Black’s Law dictionary rape is defined as “The unlawful carnal knowledge of a woman by a man forcibly and against her will.”
Justice Arijit Pasayat has correctly quoted “While a murder destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”
Our sexuality or intimacy is the most private thing to a person and rape destroys the existence of that intimacy of a human being.
sexual abuse is happening daily, be it outside, at workplace or even the four walls of one’s home. Rape is under talked and diminishgly understood terms. Rape is an offence where the victim is treated like an accused by the society. Society watches a rape victim as someone who should be ashamed of herself just because she lost her “virginity”. Imagine the trauma as the victim is degraded because of being raped. One can’t imagine the torture or the mental harassment that a minor has to suffer because of being a rape victim. A child who is regarded as god’s sent.
The supreme law of land i.e., Our Constitution has recognized the importance to live life with dignity under Article 21[1]. When a children’s body is frayed, there is no hope left of living. Constitution of India recognizing the substance that Article 21 holds fails to rectify the errors made in the justice delivery process.
The famous Mathura rape case, where two police men brutally raped a 16 year old child in the compound of the police station located in Chandrapur, Maharashtra. Rape laws and the authorities are so corrupted that they were hesitating to file a complaint.
When the relatives of the child threatened to burned down the same police station where this brutal incident took place, the guilty police officers agreed to file the complaint. Sessions court favored the accused by supposing that because the girl was habitual to sexual intercourse, it was voluntary and rape could not be proved.
However, Bombay High Court set aside the sessions court judgment by stating that a submission by fear cannot be termed as a voluntary sexual intercourse and punished the accused Tukaram and Ganpat 1 and 5 years each. But, the apex court failed to understand the misery of the girl,Mathura and acquitted the accused stating the absence of raising an alarm as a valid reason.
Here, the court should have considered and recognized that a passive submission which may be induced by threat should not be counted as a valid consent or a free consent for that matter. A victim’s mind has hundred’s and thousand’s of situations running in her mind at that crucial point and any decision taken by her to protect her life should be welcomed rather than criticizing victim.
Under, The Protection of Children from Sexual Offences Act, 2012 – Minor is a child below the age of 18 years[2].
When a woman is raped, general statement that society gives is that “what was she doing at the place at such an hour in the night?” but, what in the cases of a minor, where the child does not even know about good or bad. Can the society suffice rape of minors by giving “provocation” as a reason as well?
I guess not and for that very reason, there is a stern need for laws that are austere and unbending in nature for minor rape cases.
Role of POCSO, 2012 in such cases
POCSO was formed with an aim to curb the crime against the children when government of India signed and ratified the convention on Rights of Child. This act especially deals with the cases of sexual abuse that children have to face and also ensure equal support and cooperation in a friendly manner from judiciary.
The Act has also specified different types of sexual abuses, as penetrative[3] or non-penetrative and also specified the circumstances under which an assault could be considered as an “aggravated[4] form of assault”. Special reference has been given to the children who are mentally unstable or suffer from a physical disability.[5]
When a child is abused, they are not only experiencing mental trauma but there is a chance of further abuse if the justice is not delivered to them and this happens where the police is not sympathized with such child victims or they fail to understand the gravity of the offence. Police officers handling child victims should not only be expert in investigation but should also be well versed in handling the victim and their family.
Another factor that hampers the justice process of child victims is their deteriorating mental health after such traumatization. Undoubtedly, there is a need for systemized structure that could save the child victim from social evils such as isolation, lack of timely advice and guidance when the culprit is their own guardian or from their own family.
According to POCSO, if any person has knowledge about an episode of sexual abuse against a children and that person fails to inform or file a complaint about the same, he/she maybe punished with 6 months imprisonment and fine, or both.
The same Act, casts a duty upon the police officer who receives any complaint about any such sexual abuse to make the requisite preparations for the urgent care of the children such as preparing shelter home or the necessary medical treatment which is to be given to such child.
POCSO, does not specify a gender being the victim of rape, but child in general is included.
2013 Amendment
Justice Verma Committee receives around 80,000 recommendations nationwide, when the topic of stricter punishment for rapist was bought to the attention of Indians after the Nirbhaya Gang Rape. Although the new amendment does not include anything about marital rape and it is still considered as legal.If we ask a question to ourselves that did laws become tougher after the 2013 amendment, the answer will be that tough is higher sentencing. Instead, the term tougher laws is a hoax. Before just including larger sentences and death penalty for violence, a study should have been made that would have studied the effect of these measures where they have been implemented.
Criticism
When rape happens, a soul dies then and there. Maybe law does not understand the varsity of the crime but the people do. Criminal law amendments that came after Nirbhaya Gang Rape sought to provide justice in the fastest and most appropriate manner possible but justice was delayed. It is true that justice delayed is justice denied.
Minor is a child whose mind and body has not developed fully. A minor is in the process of finding her physical comfort and incidents such as rape, they end the process then and there. The mental trauma that a minor rape victim has to go through cannot be understood. The constant pressure of society on the parents, the continuous statements that repeatedly hurt the dignity if the child puts the child at a place from which she can never recover.
There is an humongous need of change with the way that the minor rape cases are treated. These cases need to be treated with more severity and in the fast track manner. Sex with child below 18 years of girl is considered rape whether consensual or not but only framing the section will not be of any use if the justice is not delivered wisely.
Even after making such changes in the law, a 12 year girl was raped and tortured brutally, this calls for stricter norms. 2013 amendment was made keeping in mind the harsh reality of society, wherein a female is considered as an object that is present in the world to satisfy a man’s need.
Another important point that needs to be considered is , that the molestation and rape of a child is not gender specific. A child generally cannot comprehend the severity of such type of offence because of lack of maturity and as a result of which there are plethora of cases left unreported.
Suggestions
Awareness is the very first step which is mandatory to curb any crime in the society. The government should consider the views of the society regarding to rape and then create awareness regarding this.
For instance if we talk about people who are having conservative views or who are afraid about the deeds they do, they can be made aware about the devilish deed that rape is. When a minor is mistreated , it has a negative effect on their mind which in change increases the probability of them committing a crime.
Nudity in media and teenage consensual sex should be topics that are made accessible to people and should be avoided in practice.
People earlier used to believe that sexual abuse is only caused by strangers but family members are equally accused of raping minor. In such cases, parents should be the one who should talk to their children and give them the needed support.
Another major reason behind the rise in rape culture is the increase in pornographic material. People collect, distribute and learn from these pornographic materials which lead to them being violent as well that results in rape. POSCO has already penalized watching or storing any pornographic content of minor. But , Pornographic material that is available in the market today should be regulated wisely.
Conclusion
Earlier times, a child had no rights and there was nothing a child could do about the issues faced by them but 19th century changes a lot of things and granted child rights as well. Although the government’s role in ensuring child welfare expanded greatly during the nineteenth century, this transformation was not framed in terms of the personal rights of children. Instead, changes were justified through parens patriae, the state’s authority to stand in the parent’s place when the parent would not or could not discharge his duties toward his child.[6]
It is true that an offence can be easily ruled out but to end it , is a difficult task but it has to start somewhere and it should start now.
Thus, to prevent or minimize such rape scenarios, there is a need of systematic approach which could ensure timely justice to minor victims. Also, it is an urgent need to develop the health sector in this regard so that mental problems faced by such victims could be dealt with and they could be live a normalized life.
We need to make sure that the victim is saved for the trauma that is being cast upon her during the court process so that the path to the child’s rehabilitation and recovery is not hampered. Cases of minor sexual abuses, their protection and rehabilitation are much talked about and these talks has initiated a movement where the society is aimed to working for the benefit of such victims.
If children are to be kept children, with their free flowing mind and bodies, society has to end crime against children and this would only be possible with the proper coordination of authorities’ altogether.
Stricter Laws and speedy justice will ensure a decline in the rape cases graph for sure but only these two ingredients will not suffice . Society needs education and awareness regarding child rape so that one more five year, twelve year or fourteen year girl will not have to loose her childhood .
[1] Fancis Cralie Mullin v. Union Territory of Delhi 1981 AIR 746
[2] Section 2(d) of The Protection of children from sexual offences Act,2012
[3] Section 3 of The Protection of children from sexual offences Act,2012
[4] Section 5 of The Protection of children from sexual offences Act,2012
[5] https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf
[6] Sexual Offences Against Children: Emerging Legal Responses & Legislative Policymaking , Available at ssrn.com , Accessed on 22nd August 2020
article by – suchi sharma
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