stigma on rape victims [ child]
Rajan Salvi
(Querist) 24 November 2008
This query is : Resolved
STIGMA OF RAPE
In an appeal against conviction for the offence punishable u/s 376(2)(f) , I have taken some novel grounds . The Appellant is convicted for 10 years R.I. and all evidence points towards his guilt. I would be very much indebted if the esteemed Advocate members/law students express their LEGAL OPINIONS [preferably supported by citations. General discussion please excuse ]. Boldly I have taken the grounds, but I do not know if I am right or wrong. Please comment and help out. [ I am convinced that there are absolutely no grounds for defence ]
[e] In the alternative and without prejudice it is submitted that the Ld Judge ought to have convicted the Appellant / Applicant for offence punishable u/s 376 and 511 of the Indian Penal Code. This would have been right and proper in view of the stigma attached by the society to a rape victim. By doing so , the Ld Judge would have prevented further stigmatization of the victim from being branded as a rape victim causing her serious psychological harm. [ as a damage limiting exercise , this would be just]
[f] That a person whose s*xual feelings are aroused by small innocent children ought to be looked at as a person with low self esteem with a deranged mind. [ which is a product of an abused childhood] and while sentencing , psychological counseling of the accused ought to have been ordered so that after completing the sentence , the accused person is let back into the society , not as a pervert but as a normal human being. This is necessary because after sentencing , by coming in contact with criminals there is a likelihood of more serious harm being caused to the accused’s mental health. Life is too precious to be allowed to wither away because of an impulsive incident by an under privileged accused. No soul is unredeemable.
[g] Under section 376(2)(f) :- whoever commits rape on a women when she is under 12 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also liable to fine.
Definition of rape u/s 375 , first explanation ‘ penetration is sufficient to constitute the s*xual intercourse necessary for the offence of rape.’ Various High Courts have consistently taken the view that even slightest penetration is sufficient to make out an offence of rape. In Madam Gopal Kakkar v/s Naval Dubey , the Hon’ble Supreme Court has held that ‘ even partial penetration in the labia Majora or the vulva or pudenda which in the legal sense is sufficient to constitute the offence of rape’.
It is respectfully submitted that construing strictly the word ‘penetration’ in section 375 of the Indian Penal Code, it strictly denotes that considering the female anatomy, it is only the hymen and no other part of the female anatomy which can be penetrated. Hence the offence u/s 376 ought to be considered established only when the hymen is penetrated and the male organ enters the v**gina. Superficial attempt to penetrate the v**gina would amount to outraging the modesty / knowing the women carnally and would fall short of rape. Such an interpretation is in the interest of child victims so that no stigma is annexed to them through out their life.
[ while arguing orally I will say ‘maximum sentence may be imposed but stigma should not be there on the child victim. Coming from the appellant side I know it is strange , but then this topic needs discussion.
Rajan Salvi
(Querist) 28 November 2008
While searching , i have come till here. Lets see what happens in my case.
The 'Ultimate Violation of Self' : Reflections on Judicial Discourse on Attempted Rape
by Upendra Baxi
Cite as : (1998) 6 SCC (Jour) 1
In spite of the waywardness of adjudication, it has to be acknowledged that we have crossed many a milestone against judicial patriarchy since Mathura1. The Supreme Court of India's adjudicatory feat in State of Maharashtra v. Rajendra Jawanmal Gandhi2 merits both acknowledgment and applause. At the same time as we consider the itinerary of judicial proceedings in this case, it is clear that feminist sensibility is not evenly spread across the judicial checkerboard. Almost always the trial courts are deeply imbued with the mission of penalty in rape cases; almost always the High Courts mitigate (a look at the case recited by the Supreme Court in this very case, confirms the tendency of the trial courts to take the offence seriously and of the High Courts to reverse well-grounded convictions). And in a jumbled way the Supreme Court does, on the whole, though not with an integral consistency speak rigorously on behalf of the violated women.
II
The facts are almost always brutally simple. In this case, the prosecutrix, a student of fourth class, while returning from private tuition in the morning was accosted by the accused and asked to help him with his Maruti car. As soon as she approached the car, she was forcibly pushed into it and the accused tried to have sex with her.
The noteworthy feature here is theatre of attempted rape (increasingly present also in the commission of rape). And the Sessions Court sentencing discourse is luminous on the linkage of the regime of property which sites the rape behaviour: in this case, as is now rampant, the so-called peoples' car: Maruti. The political discourse on Sanjay Gandhi and the Maruti car, and commissions of inquiry, which followed, and the current bloodletting between Suzuki and Government of India, did not anticipate that the peoples' car would be a vehicle of rape. But so it has increasingly become especially when police regulations on putting dark colour screens on windows of the car are so effete. It will take me far afield to ponder the semiotics of names entailed: Jawanmal (roughly translatable as the youth wrestler) and the name "Gandhi", which as far as I know has never been associated with rape. The adjudicatory process, for obvious reasons, could not dwell on this symbolism of evil. But it would have been helpful had the learned counsel (Ms Indira Jaising) sought an additional relief criminalizing the acts of darkening the windowpanes of peoples' or any other cars and vehicles. It is true that even radical feminist agenda has to descend to such trivia but it is also true that that the technology of rape is also yuppie-mobile in an obscenely globalizing India.
Charged with the rape of a minor woman ("girl" still being the judicial expression of social identity), and under the Bombay (now Mumbai: the politics of renaming cities is another discourse) the District Court, Satara, passed concurrent sentences on both counts. The sentence, was appropriately severe: seven years' rigorous imprisonment and a fine of Rs 5000 under Section 376, Indian Penal Code, and six months' rigorous imprisonment under the Bombay Children Act with a fine (Rs 500). Interestingly, and probably for the first time in India, the "peoples' car" was "ordered to be forfeited and confiscated to the State".3 The learned Judge in Satara, unguided by the fierce global women's rights movement, reached a rare result: the property of rapists should stand confiscated.
The High Court upheld the conviction under the Bombay Children Act and enhanced the fine to Rs 40,000. But it reversed the conviction on attempt to rape. Rather, the accused was convicted under Section 354 of the Penal Code and sentenced to rigorous imprisonment already undergone (33 days)! And the Court ordered the ret
