Women's Day
Prosecution in cases of sexual harassment will never be successful, especially where there is no physical evidence to show proof, if only because of the design of the current legal and law enforcement systems which are archaic and hence patriarchal to the extreme. Case in point, under current Indian law, there can be no rape of a woman by a husband within the arrangement of marriage (Exception to S. 375 of the Indian Penal Code reads that "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."]. Or vice-versa. The only exception is when they are judicially separated and it is without her consent. This logic stemming from a pronouncement made in 1778 that "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract."
This aside, the point I seek to make is regards a better method to punish sexual harassment and deterrence. What I propose is to shift the onus of proof over any alleged act of sexual harassment, defined as may be appropriate, to the accused. A reverse onus clause, that "shifts the burden of proof on to the individual specified to disprove an element of the of the offence." This along with an economic disincentive (The idea of imprisonment is sufficiently delayed from the commencement of trial for it not be a credible deterrent. This is not to suggest that a fine be the only detterant. Just the preliminary one. Imprionment is still an option), specifically a fine (calculated on the severity of the offense so alleged) that will be placed, at the outset, in State escrow pending the outcome of the trial, might prove to be a better way to tackle the problem. Of course, the Malimath Report of 2003 goes so far as to advocate the negation of the presumption of innocence in certain instances, POTA being one. That may be going too far in changing the basic structure of our criminal justice delivery system.
Dilettante favours an amendment to S. 375 of the IPC and special fast-track courts to judge cases of spousal abuse [and sexual harrasment].
This aside, the point I seek to make is regards a better method to punish sexual harassment and deterrence. What I propose is to shift the onus of proof over any alleged act of sexual harassment, defined as may be appropriate, to the accused. A reverse onus clause, that "shifts the burden of proof on to the individual specified to disprove an element of the of the offence." This along with an economic disincentive (The idea of imprisonment is sufficiently delayed from the commencement of trial for it not be a credible deterrent. This is not to suggest that a fine be the only detterant. Just the preliminary one. Imprionment is still an option), specifically a fine (calculated on the severity of the offense so alleged) that will be placed, at the outset, in State escrow pending the outcome of the trial, might prove to be a better way to tackle the problem. Of course, the Malimath Report of 2003 goes so far as to advocate the negation of the presumption of innocence in certain instances, POTA being one. That may be going too far in changing the basic structure of our criminal justice delivery system.
Dilettante favours an amendment to S. 375 of the IPC and special fast-track courts to judge cases of spousal abuse [and sexual harrasment].
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2 comments:
Interesting. I guess I have to think about this a little. I am not sure that S. 375 should be changed, though what constitutes rape and lines of sexual harrasment in a marriage needs to be more clearly defined. Very simple point... it is considered harassment, if a man looks lasciviously at a woman at work. The same does not hold for a husband looking at his wife.
Also, I agree that justice needs to be served faster, but fines are never enough. If i hadn't moved to Delhi, I would have said, yes, money is a sufficient deterrent but now I know that no amount of money can be a deterrent. No amount. The punishment needs to be harsher. The courts need to act faster, and punishment for rape nothing short of death. Instill fear and show that there is no escape route. Fines, jail time, all give hope to people who committ these crimes and that can't be allowed.
I elaborated a little more on this in an article Iwrote a while back...
http://iamnovip.blogspot.com/2005/12/rape-whose-fault-is-it-analytical.html
The amendment sought was the repeal of the "Marital Rape" exception to S. 375. The concept of the "Fine In Escrow" was an adjunct to jail-time. Only, it would be effective at the outset, whereas a judicial inquiry and declaration on guilt would lead to jail-time and the fine. If he is found innocent, the escrow agent will repay the amount to the accused in question. Death might be appropriate in extreme cases, but it's hardly a Liberal response.
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