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Much of the media is running a deliberate misinformation campaign against the new anti-rape Bill, and the openly anti-women organisations are the fountainhead of this campaign. Here is a quick guide to navigate the perplexed through the smokescreen of 'debates' on TV!
1) AGE OF CONSENT AT 16
Age of consent does not mean the 'age at which you are allowed to consent for sex'. It is a concept of criminal law that means, the age below which 'consent' will not be a valid defence against a rape charge. So if a 16-to-18-year-old boy is charged with rape, he will be convicted even if the girl tells the court she had consented!
Age of consent has not been 'lowered' suddenly from 18 to 16. Age of consent in India, since 1983, has been 16 years. It was raised to 18 four months back by the Prevention of Child Sexual Offences Act (POCSO), and a month back by the ordinance. Remember, the Bekhauf Azadi campaign opposed the move to raise it to 18 and the Centre has now seen sense and agreed to keep it at 16.
Age of consent at 16 does not mean 'licence' or 'encouragement' for teen sex.
The debate is not about whether 'teen sex is good or not' but about 'whether consensual sex between teens is to be defined as rape or not.' What is being drafted is a criminal law, not a moral or a social code. If the age of consent is raised to 18, it means that young boys aged between 16 and 18 years will be punished as rapist/sexual offenders even if their girlfriends of the same age say clearly that they consented to being touched!
What about the argument that age of marriage is 18, why should age of consent for sex be different?
Well, first, if a 16-to-18-year-old boy marries a 16-to-17- year-old girl and has sex with her, he is not convicted for any crime. So why should an unmarried 16-to-18-year-old boy of the same age face punishment as a rapist/sexual offender for consensual sexual contact?
At the age of 16 to18 years, it is true that pregnancy is not advisable medically. But it is equally true that mutual attraction between the sexes is absolutely natural at that age. What is needed is to equip youngsters to understand their body, respect and not despise that attraction but also to deal responsibly with that attraction. What is not needed is to criminalise that attraction and brand innocent young boys as rapists just because they have consensual sexual contact with a young girl of their own age. Boys who are thus wrongly branded as rapists for a consensual relationship will only end up fearing/hating women and a distorted perception of sexuality and women and therefore will be more likely to become violent towards women!
Moreover, we live in a world where moral policing is a huge danger to young people's lives and choices. Under the POCSO, a third party (parents, moral policing outfits, khaps, anyone) can file a complaint of rape against a young teenage boy and the judge in Court will have to convict the boy ignoring the girl's plea that it was with her consent. That is why many judges have pleaded that the age of consent be retained at 16 and not raised to 18 so they are not forced to convict young kids of rape even when it is obvious that the sexual contact was by consent. Some instances of judges' opinions are listed here:
Think of the latest Tata Sky ad, where a brother is shown deciding whether or not to 'give permission' to his sister to go out for dinner with a guy. If age of consent is raised to 18, making any sexual contact between youngsters automatically 'rape', these brothers who want to control their sisters' freedom will use it to accuse any boy/male classmate/friend who befriends their sisters! So will the gender-biased police forces who anyway harass couples even for sitting in parks together! Raising age of consent to 18 years will give the police another tool by which to extort bribes through threats of rape charges against such couples.
Will keeping age of consent at 16 encourage trafficking and rape? Of course not, since trafficking and rape are a crime, no matter what the age. Age of consent is only the age below which consent cannot be a valid defence in a court of law. If it is raised to 18, young boys, especially from dalit/oppressed castes, will face rape convictions for consensual relationship with any girl.
It is advisable to amend the law whereby a man who is four years or more older than a 16-to-18-year-old girl can be convicted of statutory rape, irrespective of the consent of the girl since an older man can sexually exploit a young girl.
Voyeurism is not 'staring'!! Uploading a photo of a girl on facebook etc is not voyeurism either. If a man makes a sex MMS or clicks a nude pic of his girlfriend and circulates it, it will be voyeurism, since it violates her privacy. If a woman is in a changing room in a clothes shop and there is a secret peephole or secret camera allowing some man to spy on her, then it is voyeurism. Ram Singh, the main accused in the Delhi gang-rape case, too was allegedly a voyeur, a neighbour of his told Reuters that "Sometimes, while we were changing clothes or bathing, he would peep into our house. When confronted, he would be very rude and say it's his right to stand anywhere." Basically, voyeurism is spying on someone in a way that violates their privacy. This law protects men too.
What is stalking?
Think of the film Darr. Tu han kar ya na kar, tu hai meri sanam is stalking. Repeatedly following someone, sending threatening mails/texts warning of acid attacks or rape/murder - that's stalking and it is a terror many women face with no remedy yet.
We struggled on the streets, not just to punish rapists but to prevent rapes and murders and acid attacks from happening. Remember Priyadrshini Mattoo? She made repeated police complaints against Santosh Singh for stalking her. But there was no law under which he could be arrested for stalking and so he went on to rape and murder her.
Acid attacks as well as rapes and murder (like the killing of Radhika Tanwar at Dhaula Kuan) are often preceded by stalking.
Why should repeated stalking be non-bailable?
It should be so because a stalker who is willing to throw acid or shoot someone dead, will go ahead and do it double quick if a woman files a complaint. It is important he is arrested before he can do what he threatens.
Stalking is easier to prove than murder or rape! Stalking often has witnesses and documented evidence (threatening letters, recordings of phone calls, etc). Only on the basis of this will the crime be proved and someone punished.
4) FALSE COMPLAINTS
If a woman files a false complaint against a man, what legal remedy does he have?
Legal remedies already exist in the IPC sections 182 and 211. These legal remedies to punish false complaints exist because there is not a single law that is not misused.The question is: why include a special provision against false complaints separately in the law against rape and sexual assault? Such a clause would only deter women from filing any complaints.
Let's remember, it's because of our movement that this Bill came into being. It's not an anti-men Bill, it's a Bill to protect all people, including men, from sexual violence. That's why we have asked that the victim in the Bill be kept as gender neutral (the Bill has again made it gender-specific, i.e only women can be victims and we are asking the government and Parliament to correct this).
It's thanks to our struggle that the government has agreed to change what was worst about the ordinance.
The accused in the rape law has been retained as 'gender specific' (because women do not rape men); age of consent has been retained as 16; the Bill clarifies that the prior sanction protection will not be available for public servants who are chargesheeted for rape (I have to verify this once I actually see the final Bill); stalking, voyeurism, acid attacks, disrobing are all recognised as sexual crimes.
There are other battles, of course, that we must continue to fight for full implementation of the Justice Verma recommendations. But the Bill in its present shape is a huge achievement for the movement. Let us defend the provisions we have won while continuing to demand the ones that are left out.
More about Kavita Krishnan
Kavita Krishnan is the secretary of All India Progressive Women's Association (AIPWA) and is a central committee member of CPI-ML (Liberation).
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