Sometimes a “sorry” is not enough… Then what is?

In simple English a sorry is defined as a feeling of sorrow, regret, or penitence. The important word here is, the realization, that the offense one has done is wrong, and due to which one has a feeling of ‘sorrow’. This deep distress or sorrow should engender a feeling of ‘regret’ which ought to lead to ‘repentance’, which is displaying the sorrow and setting things right. ‘Repentance’ involves a commitment to personal change and resolving to live a more responsible and humane life.

The word sorry is a very wide word, encompassing sorrow, regret, repentance and ultimately a change in the offender. We come to a question now, why such a topic? Why is ‘sorry’ not enough? The reason friends is that the process above is not followed. The person condoning the offense ought to condone only after repentance. For an offender to reach the stage of repentance, a feeling of sorrow should emanate from within, which would only happen if the offense is classified as such and treated as an offense.

Are we classifying offenses as offenses in society? I doubt! Let’s take a recent case of a woman raping a minor boy. First this act is not even classified as rape in law. Forceful sexual intercourse by the woman with a minor is termed by media as forceful physical relationship. Playing down the offense reduces it’s intensity and will never evoke the feeling of sorrow in the offender.

Then we come to the laws, forceful sexual intercourse with a male is not even defined as rape. It does not even find a place in the Indian Penal Code section 375. As per IPC, rape can only be committed by a man thereby absolving all women of this gruesome offense. So a woman who commits rape is not even an offender.

Then we have a special law for protecting children from sexual offenses, Protection of Children from Sexual Offences Act (POCSO). In this sexual offenses are defined as penetrative sexual offence and non-penetrative sexual offence. The act of rape by a woman with a minor comes under the definition of non- penetrative sexual offence which has a very low prison term, thereby undermining the whole offense. (For the initiated, do read my article titled, To Rape a Minor or not…, Her Choice!, for a detailed analysis on the incident and Indian laws).

So now we come to the second part of the question, Then What? Then nothing, sorry is sufficient, it is us who have made it ineffective, it is us as a society who treat women offenders with kid gloves, leave them with a slap on the hand. No wonder the situation has spiralled to alarming proportions and serious crimes by women have increased exponentially (refer to my previous article titled ‘The Fairer Criminals’) over the past decade.

Still we propose gender biased laws and cannot truly embrace ‘equality’. If this is what we would do, off course people will ask questions Sometimes a “sorry” is not enough… Then what is? #sorry. (Written for Indiblogger’s #indispire)

Let us all Stand Up for a Cause…

To Rape a Minor or not…, Her Choice!

I just came across this article titled, Woman booked for ‘raping’ son’s teen pal, wherein it is stated that she spiked the minor boy’ss drink and then raped him (oh! Sorry, rape is a wrong word here. She forced the minor boy to keep physical relationship, as definition of rape does not include forceful intercourse with a male). She also made a video recording of the incident and used to threaten the minor boy with the video recording who was just 16 years of age. It is stated that she also threatened the boy with filing of a false rape complaint against him.

Due to the ordeal, the boy lost interest in studies and was unable to mix up in the family, his health deteriorated and his behaviour changed. The news article states that the probe is currently on, no information of arrest of the accused woman is mentioned.

A few questions that come to mind are:

1. Why is the identity of the woman not disclosed by the media? If it were a man, his identity including photo would be all over the media.
2. Why is there no information of arrest of the woman till now? If this was a man he would have been immediately arrested and people would have been on the streets. He could even have been lynched as has happened in the recent past in other parts of India.

This brings us to 2 conclusions:

1. We live in a society where male disposability is the norm. No one is concerned about the ordeal faced by this minor boy in his formative years. The incident is not even termed as rape. It is classified as forced physical relationship thereby undermining it.
2. Why is the perpetrator, who is a woman in this case, treated with kid gloves and not being subjected to ‘EQUAL’ treatment. Does equality only means getting more benefits?

Let us analyse the Indian Law in this aspect. Forced sexual intercourse with a minor comes under 2 statutes, Indian Penal Code and Protection of Children from Sexual Offences Act (POCSO).

Section 375 of the Indian Penal Code which defines rape states:

A man is said to commit “rape” if he-—

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or

applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:—

First.—Against her will.

Secondly.—Without her consent.

Thirdly.—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.

Fourthly.—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.

Fifthly.—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.

Sixthly.—With or without her consent, when she is under eighteen years of age.

Seventhly.—When she is unable to communicate consent

The starting of the definition is “A man is said to commit “rape” if he”, therefore only a man can commit a rape. A woman cannot commit such an act as per the IPC. Therefore the acts committed, such as above donot find a place here, hence the woman clearly cannot be tried for rape, which is precisely what she did. Therefore this brings us to a point of ‘Equality’; Article 14 of the Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”. Does the minor boy have the same level of protection? Is it equality? Is the law gender neutral? You decide!

Now let us analyse the provisions of POCSO. The statute defines 2 types of sexual assaults on minors: a) Penetrative Sexual Assault, and b) Non Penetrative Sexual Assault. Penetrative Sexual Assault is defined under section 3 of the Act:

A person is said to commit “penetrative sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person

If we analyse the definition of penetrative sexual assault, it can “ONLY” be committed by a man, a woman cannot commit such an act (every sub-clause starts with a ‘He’). Therefore in this instant case where the minor boy was sexually assaulted by this woman, it is not defined under penetrative sexual assault. Why; again the definition is ‘NOT’ gender neutral and the minor is not ‘EQUALLY’ protected.

Then, what crime is said to be committed by this woman? It is ‘non-penetrative sexual assault’. Yes that is correct it is a minor offense. Let us read the definition of sexual assault as per section 7:

Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

So in essence, such a gruesome act comes under the definition of non-penetrative sexual assault. Now what is the difference, would be the next question. The difference friends is the punishment.

The punishment for penetrative sexual assault is minimum 7 years extendable to imprisonment for life (Section 4). And the punishment for non-penetrative sexual assault is minimum 3 years extendable to 5 years.

So in simple terms we draft our laws in a gender biased manner so that criminal women are treated with kid gloves and let off without any repercussions. Further, crimes committed by them are not even defined as crimes (rape by women does not come under the IPC). No wonder serious crimes by women have increased exponentially (refer to my previous article titled ‘The Fairer Criminals’) over the past decade.

The 2000 American Association of University Women (AAUW) data indicate that 57.2 percent of all students report a male offender and 42.4 percent a female offender with the Cameron et al. study reporting nearly identical proportions as the 2000 AAUW data (57 percent male offenders vs. 43 percent female offenders).

Schwartz, Barbara K. and Cellini, Henry R have estimated as many as 63% of sex abusers may be female in their paper titled “Female sex offenders”. The sex offender: Corrections, treatment, and legal practice. Kingston, NJ: Civic Research Institute.

If the incidences of female sexual abusers are as high as 63% then why are the rape laws not gender neutral? Is “Equality” not a doctrine enshrined by our constitution?

Let us all Stand Up for a Cause…

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Source: Wikipedia

Note: Do feel free to comment on the article if you have any concerns with the same. Your concerns will be appropriately responded / updated

Taking Cognizance of Third Gender & their Basic Rights

Recently I came across a news article titled, India votes against gay rights for UN employees. The UN had provided certain benefits for same-sex partners of UN staff and a resolution for opposing the benefits was promulgated which was supported by India. And it brings us back to LGBT rights and the infamous section 377 of IPC.

On April 15, 2014, the hon’able Supreme Court of India passed a landmark judgement promoting the rights of the Transgender (TG) community in National Legal Services Authority v. Union of India and others (Writ Petition (Civil) no. 400 of 2012). As per para 113 of the judgement:

Therefore, gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.

Further, the para 114 states:

Further, there seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender.

Further, the para 115 states:

 In order to translate the aforesaid rights of TGs into reality, it becomes imperative to first assign them their proper ‘sex’. As is stated earlier, at the time of birth of a child itself, sex is assigned. However, it is either male or female. In the process, the society as well as law, has completely ignored the basic human right of TGs to give them their appropriate sex categorization. Up to now, they have either been treated as male or female. This is not only improper as it is far from truth, but indignified to these TGs and violates their human rights.

Having this backdrop in mind, the hon’able Supreme Court ordered that TGs be recognized as a third gender for the purpose of safeguarding their rights under Part III of our Constitution.

Let us now come to the question of marriage of TGs. Let’s analyse the marriage acts, for instance, the Special Marriage Act 1954 provides condition of a valid marriage in section 4 (c):

the male has completed the age of twenty-one years and the female the age of eighteen years.

The words used are specifically ‘male’ and ‘female’. There is no mention of TGs. Therefore only a male can marry a female as of date, though we do have a third gender – TGs. For the TGs to get the right to marry or enter into same-sex ‘partnerships’, the marriage acts needs to be amended or a new statute may need to be enacted giving these partnerships legal recognition. This would atleast ensure that the TGs can enjoy most of their essential civil rights.

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Do feel free to comment on the article if you have any concerns with the same. Your concerns will be appropriately responded / updated