Need to review Criminal Law Amendment Bill 2012

The Law Commission called for a thorough review of the provision of rape favoring a more gender-neutral and broad-based definition to cover all forms of acts like unlawful sexual contact, crimes of molestation and sexual assault, that fall outside the purview of rape. Further, it widened the gamut of sexual assault committed by people in positions of authority, private as well as public, and prescribed an enhanced punishment under section 376 of the IPC, which included imprisonment for life as well. Many of the commission's recommendations were incorporated in Criminal Law (Amendment) Bill.

The Union Cabinet has approved the proposal for introduction of the Criminal Law (Amendment ) Bill, 2012. The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code,1860, replacing the word `rape wherever it occurs by the words `sexual assault`, to make the offence of sexual assault gender neutral, and also widened the scope of the offence, sexual assault. The age of consent has been raised from 16 years to 18 years in sexual assault. Due to this development in law men are vulnerable to malicious women and there is perceived likelihood of some women who might exercise their malicious tendencies through false accusations of rape. Rape is a crime easy to allege and difficult to deny. Law always presumes that a prosecutrix of a sex-offence always tells the truth while the accused invariably lies. One important goal for any law reform is to make the law clear. The need for clarity is especially significant in the criminal law, where the consequence of infringement is the liability of incurring a penalty involving deprivation of liberty or property. This need is perhaps all the greater in respect of the law regulating sexual conduct. Persons contemplating engaging in a particular form of sexual conduct should be able to know, or find out without difficulty, whether what they are intending to do is, or is not, legal. There are two important issues in seeking clarity of the law in this context. The first is that each sexual offence must be defined in such a way that what it prohibits is directly stated. The second is that each offence must be comprehensive in scope; it should prohibit certain forms of conduct viz offence of shameless indecency ,lewd, indecent and libidinous conduct. I favour classifying sexual offences according to the specific type of wrong which the prohibited act does to the victim. In some countries the name of rape has been removed from the offence. New South Wales abolished the common law offences of rape and attempted rape and replaced them by four categories of sexual assault (supplemented by an attempt offence);

(1) inflicting grievous bodily harm with intent to have sexual intercourse;

(2) inflicting actual bodily harm with intent to have sexual intercourse;

(3) sexual intercourse without consent, and

(4) indecent assault accompanied by an act of indecency.

Criminalizing consensual sexual acts: if a girl below 18-year-old has consensual sex with another boy of the same age, the boy is considered to have committed rape . Even mere caressing and fondling will come under the definition of rape. There could be a situation where both can be perpetrators and victims at the same time. Teenage extravagant passion leading to mutual sexual exploration can potentially stigmatize them as criminal under this provision. Under the Indian penal code criminal responsibility starts at the age of seven. Its paradoxical that law has assumed that children are capable of scheming and executing a crime after 7 years, but not capable of consenting to sex with someone of the same age till they are 18.Apparently the age of criminal responsibility should also be at the upper end of this range, perhaps as high as 18. what has made 18 very special? In brief, the age of 18 is synonymous with:- legal adulthood/majority - right and obligation to vote - legal age for driving - minimum age to seek an employment and to lead an independent life. In England and in most liberal countries the age of consent to heterosexual intercourse is 16.

The importance of protecting children from sexual abuse cannot be brushed aside, but It will open the flood gates to trump up charges of rape even though the juvenile had consensual sex and the law is likely to be misused by both parents and police. The law pertaining to sexual offences should make clear what is and what is not consent in sexual activity. Exploring, expressing and learning to manage sexuality is one of the most important developmental tasks of the teenage years and occasional behavior based on poor judgment is obviously inevitable. Law on age of consent were originally framed to protect children from forced prostitution - a child empowerment, protection and preventative tool. But now it is likely to be used to criminalize virtually all innocent teenage intimacy.

Raising the age of consent threatens to criminalize the age of innocence. Child rights campaigners have often resisted the criminal prosecution of children on the grounds that it is not in Childs best interests. Even if they are held criminally responsible for their actions, children should not necessarily be dealt with in the same way as adults. The rationale for this being that. The proposed increase in the age of consent would become regressive and draconian as it tends to criminalize teenage intimacy and infatuation. It will repress the sense of delight that comes with obsession. Teenage obsession with another peer group is a vital part of character development. The need is to reform their behavior and not to punish them .I am afraid that feminist may not acknowledge this. A new exception has also been added - when penetration is carried out for proper hygienic or medical purposes it is not sexual assault ,thus it allows for gross misuse as defence for medical personnel who can be perpetrators of sex crimes. Clearly the amendments in IPC with regard to rape is likely to do great disservice to the society and will only lead to a destructive chain reaction. Once opened, this Pandoras box will be impossible to close.

BY: K.SURESH BABU

M.A.(CRIMINOLOGY).M.A.(DEFENCE STUDIES)M.A.(LABOUR STUDIES) B.L. ADVOCATE TRICHY

Email: (lawyersureshbabu@gmail.com)