Legal Drift

LAW NOT ONLY FOR LAWYERS BUT FOR THE LAYMAN

rape victims

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Even Padman Cannot Save These Women From The Practice of Chhaupadi

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Hats-off to the Padman team for bringing up the sensitive issue of menstruation in India. I always thought periods was a word more dangerous than “Lord Voldemort” and those who dare to speak about it, open pandora’s box. But now things are changing and not only are we speaking about menstruation but are embracing it too. Sadly this is not the case with everyone. The taboo of menstruation and the draconian practice of Chhaupadi are claiming lives of many females.

As per the old Hindu Custom of Chhaupadi, a menstruating female is considered impure and is therefore banished from her house during her periods. She is made to stay in a goth (temporary mud huts with limited resources), stables or caves during this period. A menstruating female is considered untouchable and it is believed that her impure touch would render everything worthless. She is forbidden to enter her household, touch men, animals or plants and consume certain food articles. Similarly no one can touch her during her periods. Thus even if a female becomes ill, she is not properly taken care off as everyone banishes her.

The practice is still widely followed in few parts of Nepal and has claimed many innocent lives. A nineteen year died of snake bite during her stay in the goth. Another girl died of the suffocation caused by the fire she had lit to keep herself warm during a chilling winter night. Other females have died due to hypothermia, malnutrition, animal attacks, severe bleeding, robbery and rapes.

Reasons for Practing Chahupadi – 1. Fear of God – The people believe that the god would punish those who don’t follow the Chhaupadi Pratha.

2. Banishment from the Society – There is an obvious fear that the society would banish those families who don’t follow the custom.

Impact on Females – The females suffer from physiological, mental and emotional stress. The conditions in the goth are deplorable. The mental, physical and reproductive well being of the females are compromised as they suffer due to poor hygiene, poor nutrition, heavy workload and lack of security. Their basic human rights are being denied to them.

Law Against Chhaupadi In the year 2005, the Supreme Court of Nepal declared the practice of Chhaupadi illegal. A legislation passed by the Parliament effective from August 2018 states that “A woman during her menstruation or post-natal state should not be kept in chhaupadi or treated with any kind of similar discrimination or untouchable and inhuman behaviour”. Anyone who forces a women to follow Chhaupadi may face a three-month jail sentence or a 3,000 Nepalese rupee fine or both. The law will be effective from August 2018.

Conclusion The social workers, government and youth of Nepal are spreading awareness about this evil practice of exile. The execution of the law would be extremely challenging. The main problem is that the females are conditioned and made to believe that they become impure during their periods. Changing this mindset is the government’s greatest challenge. The law is still ambiguous as it does not specify the discrimination meted out to the menstruating females and therefore its implementation is surely challenging. It is ironical that god made all of us but yet when we menstruate, we are forbidden by some to enter temples. It is hoped that like the law eventually ended the evil practices of sati and jauhar in India, the law will be successful in ending the practice of Chhaupadi in Nepal.

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Male Rapes – Some Myths, Statistics, True Incidents and Legal Insight

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A True Story

Is Rape attempted only on females? I would request you to think again. Male rapes are not fiction created in novels and movies. What happened in Shawshank Redemption can happen to anyone at any place.

Shikhar (name changed) was popular at his college for being a philanderer. He had multiple girlfriends and at age of 22, he had everything a student could aspire for. He shared his room with two of his classmates. His relations with them were not cordial. He had some unresolved issues with them. One night when he was sleeping, he realized that his room mates were tying him to the bed. He was repeatedly raped (sodomised) by both of them that night.

The incident changed Shikhar’s life completely. Even after two years, he hasn’t dated any girl or talked about sex with his friends. The very talk of sex upsets him. He also tried attempting suicide once to get rid of miserable life. Only two of his friends were aware of what happened to him that night, but even they were unable to console him in this situation. Similar to other instances of male rapes, the matter went unreported.

Male Rapes: Some Shocking Statistics

About 10% of rape victims are men. Findings From the National Violence Against Women Survey, US points out that 71% of male victims were first raped before their 18th birthday; 16.6% were 18-24 years old, and 12.3% were 25 or older. U.S. Bureau of Justice Statistics (1999) estimated that 91% of rape victims are female and 9% are male Human Rights Watch Report suggests that 22% of male inmates have been raped at least once during their incarceration; i.e. around 420,000 prisoners each year.

History of Male Rapes

In some societies the victorious soldiers were given a right to rape the defeated enemy. The act demonstrated a total control over the defeated warrior. It was believed that whether consensual or forced a male who has carnal intercourse looses his manhood and is thus incapable of becoming a ruler or warrior. Gang Rapes of a male as a punishment was awarded for crimes like adultery in Rome and Violating the sanctity of Harems in Persia and Iran.

Who are the Victims?

Most of the people believe that males are victims of rapes only in jails, prisons and hostels but statistics reveal that these are not the only places where males get traumatized. A large number of males become victim of sexual assaults and forced sodomy in their own houses, pubs and armed forces.

The perpetrators avail the benefit of their victim’s vulnerable condition. A popular notion prevails that a male is supposed to protect himself and if he fails, he has lost his manhood. Like most of the rape victims, these victims start holding themselves responsible to the injustice done to them. The thought that “they have lost their manhood” results in their continuous victimization. Most of them start doubting themselves and may even fail to have healthy sexual lives with their spouses. A very few cases of male rapes are actually reported. The offense is considered difficult to prove and the perpetrators are often acquitted. Out of 852 cases that were reported to police in the UK, only 44 perpetrators were prosecuted. Ironically, the victim who confesses that he had been raped or sexually assaulted is punished by the entire society. The feeling of guilt and shame makes him detest himself and his very existence. The rape is not only committed on his body but also on his mind, soul and spirit.

Indian Penal Code and Male Rape

Section 377 of the Indian Penal Code is the only section that criminalized all acts of carnal intercourse. The section penalizes both consensual and forced sodomy. The minimum punishment awarded of such crimes 10 years which may extend to life imprisonment. The Delhi HC in its leading judgment of Naz Foundation v. Government of NCT and Ors stated that the provisions of Section 377 I.P.C will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors. Even if the judgment is upheld by the honorable SC, the section can be evoked to punish sodomists, pedophiles and zoophiles.

The only laws that remotely address to the problems of child assault in  the country are sections 376, 377 of Indian Penal Code and some sections  of the Information Technology Act, 2000.  But there is no specific law that can punish pedophiles or can compensate the victims of such events.

The Section 375 of Indian Penal Code does not include males as rape victims. Recently the government decided to amend the definition of rape and replace it with sexual assault instead. They believe that the amendment would give the section a wider jurisdiction and scope. But it is criticized that the proposed amendment would further harm the interests of the rape victims.

Conclusion

It is unfortunate that till now people associate manhood with sexuality. Manhood is not lost by a victim who was sodomized but it is lost rather it does not exist in the perpetrator who committed this heinous act.  It is a myth that only gay men commit such crimes. The offender can be bisexual, straight or homosexual. India definitely needs separate laws to deal with male rape or forced sodomy and child assault. Majority of such crimes remain unreported and therefore awareness must be spread in this regard. The benefits availed by female rape victims under the Cr.Pc must be also extended the male victims. Helplines and Online-help can be provided which may prove helpful in providing psychiatric help to them.

Ignoring Male Rapes won’t change anything but accepting it would surely make a difference.

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Improper postmortem can lead to the death of justice

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A dead body was found in a remote village of Madhya Pradesh. It had been discovered in a well after seven days of the death of the deceased. It was in a heinous condition and the people were even scared to look at it. The matter was reported to the police. The constable went running to the house of the government doctor who was posted in the village.

There was party organized at his house. Everyone a couple of doctors, their wives and children were enjoying some quality time with each other.

The news was indeed pleasure to none. The other doctors immediately decided to leave the party as if the doctor on duty was disowned by the whole community.

The doctor also realized the pain and trouble he had to undertake to carry on his duty. Therefore he choose a convenient way out. Instead of fulfilling his duty deligently, he decided to stay and delegate his work to the drunk peon in the hospital. Consequently, the report lacked necessary details which could have been sufficient to arrest and prosecute the guilty. This is a true story was narrated by Dr. Satpati (a leading medical expert in postmortem).

The story is not a myth but an ignored reality. In most of the cases the accused is given the benefit of doubt due to lack of evidence. The laxity of police officials, investigating team and medical experts are the prime reasons for injustice and judicial failures.

The concern raised in the story mostly deals with the disinterest doctors have in examining dead bodies and rape victims. It is important to note why doctors are disinterest in carrying on their duties? The answer is simple conducting postmortem is not exactly the part of their duties. India lacks medical experts in areas of postmortem and rape. Thus these duties are often delegated to a government doctor who is on duty in a village or district.

The traditional Indian notions that dead bodies are to be dealt only by untouchables, still exists in the mindsets of the people. Hence like everyone else, the doctors also try to ignore or delegate their duties to not so expert “drunk peons”. The results are disastrous, it not only provides an easy exit to the offender but also results in gross miscarriage of justice.

Another problem which must be addressed is the lack of knowledge in legal practitioners about forensic science. Most of the times the judge, the lawyer and the accused have no knowledge to check the veracity of a medical experts testimony. Moreover the language of law is alien to the medical experts and the medical language is a stranger to the lawyers. This communication gap often leads to miscarriage of justice. The medical experts are aware that it is difficult to challenge their opinion and even if they act ignorant, careless or venal they have almost no accountability.

Dr Satpati in his lecture told that it is easy to discover truth, if proper investigation is undertaken and minute details are noticed. A connection must be established between the wound and injury to the weapon discovered. The difference in pattern of wounds can be used to figure out the number of weapons and thereby helping in deducing the number of attackers. The pattern of wounds are also helpful in deciding veracity of cases specially when the wounds are self-inflicted. The date of infliction of injury can be figured out by noticing the color of the wound. The color of the wound changes in the VIBGYOR pattern similar to that of the rainbow. Thus a corresponding link can be established between the day of the crime and the time elapsed thereof.

It is unfortunate that most of the times the evidence is not destroyed by perpetrators but by the guardians of justice. This defect can be cured only by appointing some more medical experts who specialize in  areas of rape and postmortem. A collaboration must be developed between the legal (judges, students and lawyers) and medical experts. This must be initiated by imparting some basic knowledge on medical forensics to law students. Medical ethics is a term which is more related to field of medicine than medicines itself. The medical experts must not only treat it as their professional duty but also their moral duty. It is not the interest of the dead that they keep at stake. It is the faith of millions who believe in the medico-legal system that is risked.

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I’m dating you doesn’t mean you can date rape me.

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Sara went to a bar to party with few of her friends. When she went to rest room one of her friends. Jacob carefully poured a colorless, odorless and tasteless powder in her drink. Coming back she consumed the drugged drink without knowing its consequences. Next morning she found herself in the bed of the accused. Under the effect of the drug she knew about nothing that had happened the previous night.  The accused possessed some photographs of the previous night, which he used to threaten and blackmail the victim. The victim was victimized for months and due to the fear and guilt she remained silent and confided in nobody. Ultimately she committed suicide to get rid of this miserable condition. This story may become a reality in life of any woman. Date rape is something we feel would never happen to us but it is a dangerous mistake to believe so.

It is unfortunate that many victims of date rape or acquaintance rape commit suicide. Recently a 15 year old girl committed suicide when she was gang raped by her boy friend and his friends. Bijal Joshi rape case which formed the headlines in 2004 was no exception. The lower court has recently awarded the five accused (Sajal Jain, Sugam Jaiswal, Ashok Jaiswal, Chandan Jaiswal and Karan Jain with life imprisonment. Bijal Joshi (24 years) was allegedly raped by her boy friend Sajal Jain and his four friends on the New Year’s Eve in a room at Hotel Ashok Palace, Ahemdabad. When the police took no notice of her complaints, she committed suicide leaving a suicide letter which mentioned the names of all the accused.

It is estimated that around 70,000 college students in the United States are victims of drug rapes or sexual assault every year. Mostly drugs like Rohynol, Ketamine and GHB are administered to commit such crimes. They are also known as predator’s drugs or club drugs. Their effects are generally permanent and a woman may not be able to conceive ever if administered such drugs.

Rohynol:

1. Its effect starts within 10 minutes of ingestion which can continue up to eight hours.

2. It may cause difficulty in walking, nausea, confusion, dizziness, muscle relaxation, slurred speech and impaired judgement.

3. However it is banned in U.S., it is legal in almost 60 countries including U.K. and Mexico as it is used as a medicine for insomnia.

Ketamine:

1. It is administered through injections in veterinary practice .

2. Causes hallucinations, numbness, aggressive behaviour, vomiting and dream-like effects.

3. It is available in both liquid and powder form.

GHB:

1. It is available in powder or liquid form and is easily slipped into a drink.

2. It causes unconsciousness, dizziness, drowsiness,sweating, nausea and respiratory problems.

3. Although the drug is odorless and colorless, it is quite salty.

How to protect yourself?

Don’t accept or share drinks. Never leave your drink unattended, even if you are going to the washroom. If you find something suspicious in your drink pour it out immediately. Have a non-drinking friend with you at a party. Don’t hesitate to take help, if you feel you have been drugged. Choose taking drinks from a closed container and not from a pitcher.

What must be done by a date-rape victim?

1. If you believe that you are a victim of date rape take medical help. A urine test within 72 hours of the administration of the drug would reveal the presence of drug in your system.

2. Inform the police. To avoid any sort of harassment by police, consult and take help of  a N.G.O .

3. Don’t hold yourself responsible for the tragedy. Counseling would definitely help you to get over your guilt.

4. Suicide is no option. It is not the victim but the perpetrator who deserves punishment.

Indian Penal Code

Although we don’t have any specific laws related to Date Rape or acquaintance rape, the section 375 of Indian Penal Code, clearly states that sexual intercourse without the consent of victim is considered to be rape. It further states that, if consent for sexual intercourse is obtained by intoxication; then also rape would be deemed to have occurred. The minimum punishment for rape as prescribed under Section 376 is seven years. Hence a victim may take the benefit of the above section.

Criticism

It is unfortunate that some people believe that rape was justified if a woman asks the male out. Some of the perpetrators claim that they had right to have sex with their victims. Both the arguments are highly flawed; a man does not own his date. It is not obligatory on a woman to have sex with her partner. A relationship does not necessarily mean sexual relationship.

To prevent date rape a woman must be vigilant and careful. “Betrayal occurs only where there is presence of trust.” Both young males and females must be taught about sexuality in educational institutions. The risk factors and legal consequences related to rape must be discussed with students. It is the moral responsibility of every individual to inform police, if he or she feels that a woman is administered a club drug.

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