• Shreya Sinha


Updated: Aug 28, 2020

By- Akriti Choudhary, 3rd Year, B.A., LL.B (Hons.) Student at Institute of Law, Nirma University

For the first time, the concept of rape was only identified as sexual behaviour because it generally ignores the violence that tends to complement it. Sexual violence is, therefore, a very broad concept that includes rape too. Firstly, we need to begin by understanding the history and the essence of sexual crimes that have happened overnight. In India, following the significant amendments, Section 376 of the Indian Penal Code, 1860, retained the legal meaning of the word rape as "whenever a man performs sexual intercourse with a woman without her consent or will, it amounts to rape." Indian Penal Code, 1860 § 376.

Rape is still known as an 'act of force or superiority' in India because patriarchy plays a major role in the harassment of women. In 1860, sexual harassment of women was limited to peno-vaginal penetration as a major factor until recently when it took a significant leap due to improvements in sexual assault legislation; it currently encompasses penetrative such as peno-vaginal, peno-anal, peno-oral, body parts and non-penetrative such as controlling, rubbing, and kissing. For the past years, India is making legislation on the issue of sexual violence. It includes The Protection of Children from Sexual Offences Act, 2012 (POCSO), and many other acts and amendments to the already existing laws.

When an offender deliberately causes sexual harm to a minor, it is a crime known as Child Sexual Abuse (CSA). CSA can be in several types, including sexual penetration, genital, oral or anal sex of some sort with a minor, exhibitionism, pornography in front of the minor or pressuring the minor to masturbate, the creation of minors' pornographic videos, human slavery and all other sexual activity that affects the physical, emotional and mental health of the minor. In India, medical professionals lack understanding. They are unable to recognize the existence of sexual violence on the child that may be due to a lack of skills, knowledge, and training to detect it because sexual violence does not always appear openly. For example, there was a 14 or 15-year-old girl who unexpectedly gained a lot of weight and her parents had her tested, all the medical records were fine but when she was taken to a psychologist it was discovered that she was regularly abused and raped by her cousin and stopping this she had started eating a lot of food and added weight to look hideous. According to her, this was a solution to stop sexual violence.

In August 2019, India amended the POCSO Act, 2012, to allow the death penalty for rape of children under the age of 12 years. Swagata Yadavar, Death Penalty for Sexual Offences Up 53% In 2018. The implementation of the ordinance was the government's reaction to the worldwide condemnation of minors' abuses in the district of Kathua, Jammu & Kashmir, and Unnao, Uttar Pradesh. The cabinet said this change or adjustment was made because of the need to mitigate India's growing epidemic of CSA. The Union Law Minister, Ravi Shankar Prasad, gave his brief on the cabinet 's decision and said that this reform was introduced to ensure progress, improve the entire POCSO Act, and ensure responsibility for degradation of the childhood of innocent children does not fall upon the hormones.

Many questions arose after introducing the death penalty for perpetrators of CSA:

Will the death penalty act as a push for the change needed concerning CSA in the current social order of the society?

Will the death penalty rather lead to the murder of the victims to avoid the reporting and identification of the accused?

Since the POCSO has removed the burden of evidence, it has put the burden of proving the crime of sexual harassment on the victim instead of the defendant, in the worst possible sense, endangers the implementation of the death penalty. The reality that the POCSO trials' practicality shows us that it is still impossible for the courts to lift the presumption of evidence. There is also the possibility that the two-month time frame to finish the trial will only make the convicted walk away.

"There is no knee-jerk reaction to the new ordinance. The death penalty will act as a deterrent, but not in isolation. This is a welcome step, but you need to complete the whole process expeditiously", said Alakh Alok Srivastava, a Supreme Court Advocate. Id.

In India, the usefulness of punishment in decreasing crime is extremely questionable, given that for several reasons, the assurance of penalty itself is very small. Secondly, there is under-reporting of abuse and sexual harassment cases due to social isolation, deep-seated sexism, and a long-drawn and sometimes degrading prosecution and court process.

The Delhi High Court had schooled the government, saying the death penalty puts the victim in the way of further harm, as the culprits want to make sure the victims don't survive to bear the testimony. It is not a well thought out regulation.

For starters, a 12-year-old child was assaulted in the Paschim Vihar area on 4th August 2020. The accused attacked her with a pair of scissors and assaulted her. He stabbed her with scissors several times intending to kill her. The girl suffered injuries to her neck, head, and other areas of her body.

Research has consistently indicated that it is impossible to convict crimes against children since they are typically committed by those known to them. The research of the Center for Child and Law revealed that those known to the victims were guilty of the abuse in 70% to 80% of the convictions surveyed in a few states. Therefore, in most situations, the survivor or family members cannot file a lawsuit against their own families because of this intention. "It is a worry that the death penalty's implementation would worsen the issue of under-reporting," said Anup Surendranath, director of the Death Penalty Center at National Law University, Delhi.

The investigation for CSA progresses with the embarrassment and derogatory questions that the victim frequently encounters when having a complaint reported at the police department, by police officers who have no experience dealing with the victims. After the trial, there is insufficient therapy, a lack of sufficient legal and psychiatric care, and the habit of accusing the victim both publicly and covertly. Both causes lead to victims becoming violent or failing to begin appealing throughout the trial, resulting in a poor level of prosecution, diluting any potential deterrence by the death penalty.

As we know, India is a society that revolves around families, which means that they value their society's women and girls. When a crime like CSA happens, it shakes Indian citizens' beliefs. Thus, these rules and punishments need to be enforced to a significant degree such that no one dares to expose an innocent child to such cruelty as to endure. But one common argument against the death penalty is that there is no reliable evidence to prove the effectiveness of such a penalty being a deterrent, according to the Law Commission of India's 2015 report on the death penalty.

There are concerns that any penalty being enforced must be equal and rational. It is often claimed that lower-grade penalties will also contribute to the same desired outcome in certain situations.

None of those, as mentioned earlier points, undermines the seriousness of rape as a criminal offense. However, what needs to be done is not a short-term, headline-grabbing compromise to amend the legislation, but instead to work in seeking a long-term approach that strengthens the investigation and judiciary process, and shifts societal and social standards that also validate rape culture. Only then can we save our children?

(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)

60 views0 comments

Recent Posts

See All