February 18, 2020
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The Violated Body

Rape and the case for the death verdict. When should it apply?

The Violated Body
Illustration by Sorit
The Violated Body

In the endless ongoing debate surrounding the Nirbhaya gangrape case, certain important issues have been sidelined. Crucial facts have been subverted by the nationwide clamour for justice, redressal and retribution. Early in the day, someone was shouted down by the public for suggesting that there were different degrees of rape. I think the idea bears scrutiny. Yes, there are degrees of rape and I list the most heinous of them below. These are the ones that should deserve the death penalty or imprisonment for the rest of their natural lives without parole, as suggested in the new ordinance. These crimes are amongst the rarest of the rare.

The raping of a small child is obviously the worst possible crime imaginable. The mind boggles at the ghas–tly physicality of the crime. The child's body is yet unformed. She is helpless, fragile, unaware and, above all, trusting, and in no way able to fight or resist the attack. The damage is not only to the psyche of the victim but would, by its brutal nature, tear apart her very innards. This crime is tantamount to murder. How can such a rapist be let loose on society ever again? I read recently of a man who had raped a two-year-old being let out after 10 years only to do it once more, this time ending with murder.

The second category is fathers who ravish their own daughters. This is such depraved misdemea–nour that it deserves the most extreme punishment. The act goes against human nature and all social norms, an act so sordid where the protector turns devilish aggressor. Who can a girl trust if not her own father, brothers, uncles, grandparents, gurus and so-called godmen? This constitutes a total breakdown of the moral fabric of our society. It is also symptomatic of the hypocrisy in the holier-than-thou attitudes of many seemingly orthodox Indian men. Of course, the emperor of all heinous crimes is the father raping his own infant child.

In the rising crescendo of the blame game, one has lost sight of one disgusting but crucial fact—that the majority of sexual assaults in India occur in the seemingly safe haven, behind closed doors with the family. This then is our national shame. No police force can predict, pre-empt or protect a woman or child from such an onslaught. All that can be expected from the system is swift justice after the event and such harsh punishments that may act as deterrents for the future. At the moment the prevailing national anger is directed against the authorities rather than against the perpetrators; and the perpetrators are often right there in our own offices, homes and schools. How can these ubiquitous crimes be pre-empted?

The third category is, indeed, gangrape, because of the element of conspiracy and premeditation that it implies. This is the worst manifestation of mob violence and deserves the most stringent punishment. What the authorities could certainly do is stringently implement the existing laws on child marriage. Even today, child brides are being raped throughout rural India on a daily basis, are bearing babies at the tender age of 12 or 13 when they are still children themselves, and all this with the full sanction of society. After 63 years of independence, hardly any headway has been made in this regard. The government has failed miserably on this count, leading to disgraceful statistics on maternal and child mortality, and malnutrition levels that are below sub-Saharan Africa. Here too, the arrest of erring parents followed by harsh punishments could act as deterrents.

Lastly, a look at the contentious issue of minors being exempt from salutary punishment. I, for one, buy the argument that if he is old enough to rape he is old enough for justice. It is an open secret that our juvenile homes are a hotbed of iniquity and crime where small kids and older boy criminals are lumped together in the same dormitories; where no distinction is made between a pickpocket and a murderer, where the criminal elements are known to torture the younger children. There is scant attempt at educating or reforming these young thugs and they often operate as the convenient face of adult gangs and are let out again and again. Either change the laws to reduce the juvenile age to 16 or reorganise these borstals to make them effective institutions for reform.

While welcoming Justice Verma's report and the new ordinance, the court must also view with scepticism women in consensual relationships who could misuse the new laws to wreak vendetta on those who have spurned them. In a recent case, a woman claimed she had been raped over a period of six months but had travelled with the man to Shimla, presumably of her own free will. Surely, she could have retaliated, reported the crime or run away if she had wanted to!

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