Featured Proper Amendment to Rape Law is the Need of the Hour

[Nilgiri]

(Just like another forum that shall remain unnamed. )

Lately I have been using the words "Earlier Gathering"...hehe

 

[Saiyan0321]

Last time we talked about implementation. Here are two major Amendments that, i believe can help in implementation or atleast some part of it so let me copy it here. Its an Article i wrote that should be getting published.

Since the horrific motorway case, the country is united in calling for legal reforms however most have missed the mar on what kind of reforms are needed. As calls for Death sentence (Already applicable since Women Protection Act 2006) and Public Hanging (Declared UnIslamic by the Supreme Court), the calls for proper and adequate reforms lay ignored. I have written extensively on the subject and would reiterate that the problem lies in implementation of these laws rather than the laws themselves. The government must implement these laws in a proper fashion. In 2012, as Rape cases grew in India, calls for proper legislations became the voice of the people of India and the government passed the ‘Protection against Sexual Violence Act 2012’ which greatly amended the laws that governed Rape and the procedure for its trial and evidence. Pakistan has also passed such progressive laws such as the Women Protection Act 2006 and Criminal Amendment Act 2016 (Also known as Women Protection Bill 2016). Both of these laws have played an important role in Rape Conviction however the need of the hour is to make sure the laws are properly implemented and this can be done by bringing forth two major amendments.

The first amendment is where we need to take a leaf out of India’s legal book. India suffered from a major problem and that was that rape cases weren’t being reported especially those cases which were incestual by nature and this under-reporting created a form of bondage over women where everybody whether for honor or social stigma, would tell the victim to not report the incident. Rapes of minor were greatly impacted by this however in 2012, the government passed the ‘Protection Against Sexual Violence Act 2012’ which amended section 39 of the Indian Criminal Procedural Code and declared that everybody must report an act of Sexual Abuse to the police and failure to do so would lead to imprisonment of 6 months or fine. The greatest problem was faced by Medical officers back then as they couldn’t report to the police without an express consent of the victim or guardian and thus would be forced to witness the happening of great injustice however post the amendment the medical officer must also immediately report to the police if such has happened. Pakistan has similar legal flaw where there is absence of express legal obligation to inform the police in case the victim or the guardian of the victim does not wish to call the police. In fact the Medical SOPs have it in their form that the doctor must note down whether the police was informed or not where it is held as Yes/No/Survivor does not want to report to the police. The Consent of the victim is needed for medical legal examination and if she denies, then the MLE cannot be forced on her and this is stated in our law and while this is the right of the victim, the medical officer is not duty bound to inform the police on this matter. Lawyers are forced to go roundabout by utilizing 166A and 166B against them but without an express legal obligation, a doctor will not inform the police. A proper amendment is needed here to make reporting of such as part of Medico-Legal formality and make it legally bound upon all to report such crimes so that the culture of non-reporting is immediately halted especially in cases where the victim is minor or the Rape is of Incest nature. Ofcourse the state should setup proper prosecution of such and look to punish the perpetrator irrespective of the wishes of the victim and this was held as such in Supreme Court in 2013 as well but implementation was again the problem since primary evidence is witness statement and while the law has made it easier for this by removing four witness requirement and announcing conviction simply on the statement of the victim and its corroboration however if the victim or in case of minor, her guardian is not supportive then the law is powerless and to combat this situation we must bring forth another amendment.

The second amendment that is needed is to make both DNA and the MLE a form of primary evidence. This will make sure that even if the victim is not supportive, the evidence based on DNA and MLE will allow for the continuation of the case and will make sure that perpetrators will not escape justice. The reason why the MLE must be made as such is to help the evidence collected by DNA since DNA only states that a sexual intercourse had happened and if a perpetrator is in custody then it is conducted by him however the MLE is where the doctor highlights the wounds on the body of the victim which can help strengthen the case against the perpetrator. Even DNA alone and MLE as corroborative evidence would help bring proper conviction to such cases. Ofcourse proper kits should be provided to hospitals and a proper forensic must be setup to combat as such however the legal loopholes in the law would be plugged.

Many have stated that it is the state that must act and the failure or apathy of the state is the reason behind the lack of implementation however do the people offer no responsibility? They are not free from such. If a law is not implemented then we must pressurize our lawmaker to make sure that such law is implemented. We complain to them for roads and sewerage systems however we never talk to them when a police official refuses to file an FIR. We never ask them as to why the doctor refused to do our MLE. We, as a nation, must pressurize our power centers to make sure laws are implemented and demand amendments and proper amendments so that the government will also know that they must pass proper legislation to combat this problem and implement it properly and failure to do so would lead to them losing their mandate. That the people desire security and rule of law. If this impression is not sent, then all legislations passed will remain an eyewash.

I actually took inspiration from Indian law on Section 39 which makes reporting obligatory.

@Joe Shearer @Nilgiri @Cobra Arbok

 

[Nilgiri]

Last time we talked about implementation. Here are two major Amendments that, i believe can help in implementation or atleast some part of it so let me copy it here. Its an Article i wrote that should be getting published.

Since the horrific motorway case, the country is united in calling for legal reforms however most have missed the mar on what kind of reforms are needed. As calls for Death sentence (Already applicable since Women Protection Act 2006) and Public Hanging (Declared UnIslamic by the Supreme Court), the calls for proper and adequate reforms lay ignored. I have written extensively on the subject and would reiterate that the problem lies in implementation of these laws rather than the laws themselves. The government must implement these laws in a proper fashion. In 2012, as Rape cases grew in India, calls for proper legislations became the voice of the people of India and the government passed the ‘Protection against Sexual Violence Act 2012’ which greatly amended the laws that governed Rape and the procedure for its trial and evidence. Pakistan has also passed such progressive laws such as the Women Protection Act 2006 and Criminal Amendment Act 2016 (Also known as Women Protection Bill 2016). Both of these laws have played an important role in Rape Conviction however the need of the hour is to make sure the laws are properly implemented and this can be done by bringing forth two major amendments.

The first amendment is where we need to take a leaf out of India’s legal book. India suffered from a major problem and that was that rape cases weren’t being reported especially those cases which were incestual by nature and this under-reporting created a form of bondage over women where everybody whether for honor or social stigma, would tell the victim to not report the incident. Rapes of minor were greatly impacted by this however in 2012, the government passed the ‘Protection Against Sexual Violence Act 2012’ which amended section 39 of the Indian Criminal Procedural Code and declared that everybody must report an act of Sexual Abuse to the police and failure to do so would lead to imprisonment of 6 months or fine. The greatest problem was faced by Medical officers back then as they couldn’t report to the police without an express consent of the victim or guardian and thus would be forced to witness the happening of great injustice however post the amendment the medical officer must also immediately report to the police if such has happened. Pakistan has similar legal flaw where there is absence of express legal obligation to inform the police in case the victim or the guardian of the victim does not wish to call the police. In fact the Medical SOPs have it in their form that the doctor must note down whether the police was informed or not where it is held as Yes/No/Survivor does not want to report to the police. The Consent of the victim is needed for medical legal examination and if she denies, then the MLE cannot be forced on her and this is stated in our law and while this is the right of the victim, the medical officer is not duty bound to inform the police on this matter. Lawyers are forced to go roundabout by utilizing 166A and 166B against them but without an express legal obligation, a doctor will not inform the police. A proper amendment is needed here to make reporting of such as part of Medico-Legal formality and make it legally bound upon all to report such crimes so that the culture of non-reporting is immediately halted especially in cases where the victim is minor or the Rape is of Incest nature. Ofcourse the state should setup proper prosecution of such and look to punish the perpetrator irrespective of the wishes of the victim and this was held as such in Supreme Court in 2013 as well but implementation was again the problem since primary evidence is witness statement and while the law has made it easier for this by removing four witness requirement and announcing conviction simply on the statement of the victim and its corroboration however if the victim or in case of minor, her guardian is not supportive then the law is powerless and to combat this situation we must bring forth another amendment.

The second amendment that is needed is to make both DNA and the MLE a form of primary evidence. This will make sure that even if the victim is not supportive, the evidence based on DNA and MLE will allow for the continuation of the case and will make sure that perpetrators will not escape justice. The reason why the MLE must be made as such is to help the evidence collected by DNA since DNA only states that a sexual intercourse had happened and if a perpetrator is in custody then it is conducted by him however the MLE is where the doctor highlights the wounds on the body of the victim which can help strengthen the case against the perpetrator. Even DNA alone and MLE as corroborative evidence would help bring proper conviction to such cases. Ofcourse proper kits should be provided to hospitals and a proper forensic must be setup to combat as such however the legal loopholes in the law would be plugged.

Many have stated that it is the state that must act and the failure or apathy of the state is the reason behind the lack of implementation however do the people offer no responsibility? They are not free from such. If a law is not implemented then we must pressurize our lawmaker to make sure that such law is implemented. We complain to them for roads and sewerage systems however we never talk to them when a police official refuses to file an FIR. We never ask them as to why the doctor refused to do our MLE. We, as a nation, must pressurize our power centers to make sure laws are implemented and demand amendments and proper amendments so that the government will also know that they must pass proper legislation to combat this problem and implement it properly and failure to do so would lead to them losing their mandate. That the people desire security and rule of law. If this impression is not sent, then all legislations passed will remain an eyewash.

I actually took inspiration from Indian law on Section 39 which makes reporting obligatory.

@Joe Shearer @Nilgiri @Cobra Arbok

We need lot of oversight on the cops I feel too, they are the first point of (authority) contact for a victim to get the case going.

Some number of them need body cams while on duty (at station or otherwise) and plenty of CCTV in all their stations (tamper proof) so there can be judicial oversight of what their actions are like handling criminal reports (at whichever criminal desk they have)....so say with rape it can be cross correlated for later and punishment taken on any if there is found to be a slipup or travesty when a victim comes to them.

There need to be an active local journalism network (independent of govt) to also apply requisite pressure for govt judiciary to check specific time logs of police activity....i.e somewhere to go of sustenance for a victim if police are dismissal of it (rather than relying on the story becoming big enough for media to pick it up as most simply dont). Some big pressure need to be put on the cops and bad cops need making examples of.