Archive for rape

Death Penalty for Child Rapists in India: Populist, Hasty, Counterproductive

by Shardool Kulkarni, a law student at the University of Mumbai

This January, an eight-year-old girl hailing from a minority shepherding family in India was abducted, gang raped and brutally murdered in the Kathua region of Jammu and Kashmir. In the subsequent months, the incident generated polarized reactions in India and around the world, with public outcry juxtaposed against the response from individuals in authority and alleged politicization of rape owing to the victim’s minority status. The ensuing public discourse has placed the ruling dispensation headed by Prime Minister Narendra Modi under intense scrutiny, particularly in relation to the government’s stance and policies regarding child rape.

In April 2018, the Criminal Law Amendment Ordinance, 2018 was promulgated. The said ordinance brought in several changes to the existing legal framework pertaining to child rape in India, the most significant being the imposition of the death penalty as punishment for rape of a girl below the age of twelve years. The move, while hailed by some as an example of the government’s toughened stance on child sexual abuse, was criticized by academics, judges, NGOs and legal practitioners as being likely to worsen the plight of victims of child sexual abuse.

Disincentivising Reporting

The Kathua rape case involved the victim being abducted, drugged, gang-raped and brutally murdered by eight persons, including four policemen. However, it is pertinent to note that this is not the norm when it comes to instances of child sexual abuse: according to the National Crime Records Bureau of India, 95.5 percent of rapes are committed by persons known to the victim. The perpetrator of abuse is not the figurative shadowy stranger who strikes fear into the minds of the public, but rather the more closely known devils such as parents, older siblings, teachers, neighbors, or family friends. Victims of rape aged below twelve years are also unlikely to report a crime unless an older family member does so on their behalf. The likelihood of this happening is already low and could be diminished further if the consequence of reporting is the death penalty. As such, the amendment is likely to push the already underreported crime of child sexual abuse deeper into the chasm of unspoken, unacknowledged secrets of Indian society.

A Death Sentence for Victims?

The ordinance seemingly also ignores the possibility that making the act of raping a girl below twelve years punishable by death, a punishment usually reserved for murders, could encourage perpetrators to kill their young victims. Rape is an exceedingly difficult crime to prosecute if the only witness in most cases, the victim, is dead. While it may seem counterintuitive that a rapist would murder his or her victim and increase his or her chances of being sentenced to death, the heightened risk of being caught if the victim survives and thereby receiving the death penalty anyway could, in the opinion of some, prompt more rapists to kill their victims.

Indian students protest against rape in India in 2015. Sexual assault of women has been an ongoing issue in India. // Sajjad Hussain // AFP Photo

Following the enactment of the Criminal Law (Amendment) Act, 2013, the term “rape” has been accorded a wider connotation, including not only the traditional notion of penetrative sex but also other forced sexual acts such as fellatio. Thus, “rape,” as defined by the Indian Penal Code, is unrelated to the risk of death and need not necessarily be an act that may result in the death of the child owing to the sheer physical violence accompanied by it. Placing the punishment for raping a child on the same pedestal as the punishment for murdering a child might simply incentivize more abusers to ensure that their victim does not live to tell the tale.

Gender Bias: An Evidence of Populism and Apathy

Most media outlets in India carried news of the government’s decision on child rape. Interestingly, the ordinance only makes the rape of girls below the age of twelve years punishable by death, casting a blind eye toward male victims who constitute 52.94 percent of the victims of child sexual abuse in India. This sidelining of male victims points to a knee-jerk response to momentary outrage, a clear manifestation of the skewed discourse surrounding sexual violence that too often turns a blind eye to male victims. 

Subsequent to the promulgation of the ordinance, the Central Government announced its intention to amend the Protection of Children from Sexual Offences Act (POCSO) in order to make the changes brought in by the ordinance apply to male victims as well. While the move is a welcome one, it further highlights the fact that the policy in question was a hasty move.

Death Penalty: An Ineffective Deterrent

In its 262nd report, the Law Commission of India concluded that there was no evidence to suggest that the deterrent effect of the death penalty was any better than that of life imprisonment. In the United States of America, for example, states that did not impose capital punishment for homicide were found to have lower homicide rates than states that did impose capital punishment. As such, the presumption that the death penalty acts as an effective deterrent is fundamentally flawed.

Moreover, presuming that death penalty does indeed deter child sexual abuse, the deterrent effect is watered down significantly in India by poor case disposal and conviction rates. In its 2016 report titled “Crime in India,” the National Crime Records Bureau revealed that the conviction rate under the POCSO Act is an abysmal 28.9 percent. To make matters worse, pendency in cases of child rape was 89.6 percent. Moreover, there are no witness protection programs in place, and no probe has been made into the functioning of Child Welfare Committees set up by the government. Imposing stringent punishments becomes meaningless if the law remains a mere dead letter.

Several persons in authority responsible for the ruling dispensation, including two ministers in the State of Jammu and Kashmir, protested against the arrest of the accused in the horrific Kathua rape case. The apathy of the police authorities, the statements made by persons in power and the communal color that the entire incident acquired created a strong public sentiment against the ruling party on the issue of child rape. In this light, the Criminal Law (Amendment) Ordinance, 2018 can only be regarded as a hasty and populist move to placate the outraged public without addressing, and moreover possibly aggravating, the plight of the innocent victims of these horrific human rights violations.

 

Shardool Kulkarni is in his penultimate year as a law student of the five-year law course at the University of Mumbai. He holds the distinction of being the youngest Indian to have deposed before a parliamentary committee in Indian legislative history. In the past, he has worked as a law trainee under Justice F. M. I. Kalifulla, Judge, Supreme Court of India, and as an Attaché to the Office of the Speaker, Lok Sabha, Parliament of India.

Sex Work in South Africa: Shaming Sex Workers Away From Human Rights

By Maria E. Hengeveld, graduate student of human rights at Columbia University

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southafrica1Think about this: If the Netherlands, the country that was one of the first to legalize sex work thirteen years ago, still benefits from its capital’s red light district as one of its main attractions for both national and international tourists, what kinds of questions does this raise about the treatment of sex workers outside the regulated district? For one, it suggests there are very few places on this planet where the shaming and ridiculing of both sex workers and their clients is not socially acceptable.

The Dutch red light district remains a site where women who earn their money through sex—some by choice, some by force—is objectified and ridiculed. It’s fun to walk past them, amusing to observe them, and outright hilarious to shame and fool them[1].

We call it stigma.

Notwithstanding the violations and harsh realities that many sex workers in the Netherlands continue to endure (especially those who are working against their will),  sex workers’ stigma reveals itself in different, and often even grimmer ways in poorer, less equal and more violent countries, where sex work remains illegal.

The South African Context

While the country’s Constitution, ratified in 1996, has often been credited as being the most liberal in the world for safeguarding the rights of vulnerable groups, sex workers remain excluded from constitutional protections. Forced underground, their profession’s stigma reveals itself in daily violations of their basic human rights. This means rape. It means beatings. It means extortion and an increased risk of HIV/AIDS.

How? Angie, a 54-year old street-based sex worker from Cape Town explains. Drawing on 20 years of experience, she says that out of all the risks, brutalities, condescension, and threats she and her colleagues face, most sex workers fear the police the most. According to Angie, “They target you, threaten to arrest you and then demand bribes or sex.” She went on to explain, “After raping the girls they often drop them in deserted areas.”

She also noted “to not leave any trace of evidence, they often use condoms, which they throw away afterwards.”  And just as condoms serve as a tool for erasing a sex crime, they are simultaneously used as evidence for sex workers’ alleged criminal activities. According to Angie, many police men consider carrying many condoms as proof of sex workers exchanging sex for money; one reason why many girls decide to either take less condoms with them or hide them somewhere near their base.

sexworkers

Nosipho, a 29-year old mother from Durban, whose cousin introduced her to sex work on the streets of Durban’s Morningside area in 2008, affirms the terror-tainted relationship with the police.

“We are so used to the beatings and the rapes that, once it’s over and you make your way back to the other girls, you can only try to laugh about it. If you’re raped so many times by clients and police men you develop some sort of flow of coping,” Nosipho acknowledged.

This tends to be the case, unless the brutality is out of the ordinary such as the one night in Durban, only a few months ago, when Nosipho encountered the police. “As always,” Nosipho recalls, “we were well aware of the necessity to not provoke any cops that night, so when I noticed a police car driving towards us, I quietly walked away. This one cop called on me, ordered me in his car and took me to the Burman Bush, a deserted and terrifying place where many girls have been found dead.”

She was given a choice to give him the sex he wanted or be left on her own. Nosipho recalled, “He started to touch me, pulled up my skirt and raped me anally. I couldn’t stop screaming from the pain. Afterwards, I had no option but getting back into his car again.” Because sex work is a criminal offense and given the ever-present risk of incarceration, there was no place to report the abuse Nosipho had suffered.

She also did not think that visiting a clinic for medical help was an option. Nosipho lamented, “The nurses treat you like dirt, will call you ‘bitch’ in front of everybody or tell you that, as a sex worker, you ask for getting raped.”

Next to shaming, many sex workers have complained about the reluctance and refusal of public health centers to provide sex workers with STI tests or treatments for injuries. “And meanwhile”, Angie continues, “people accuse us of spreading HIV.”  Next to exposing them to police brutality, condoning public shaming, and legitimizing the violation of their right to health in clinics, the current criminalized state of the profession also severely weakens sex workers’  negotiating position towards clients. This renders them substantially more vulnerable towards abuse, blackmail, diseases, violence and extortion.

Angie explained, “I remember this very quiet night, when I had hardly any business. A client told me to get in his car and took me all the way to Athlone, where he demanded sex without a condom.  He said he wanted flesh to flesh sex. When I refused he pointed a gun to my head. I didn’t give in, though. Then he decided to only pay me half of the agreed price and dropped me somewhere in Wynberg, very far away from my base.”

Other clients take advantage of sex workers’ exclusion from legal protection by pretending to be cops themselves and demanding sex or money in exchange for letting them go. By rendering sex work illegal, South African laws justify these discriminatory, derogatory and abusive treatments of sex workers. Treatments that not only take a physical and financial toll, but also have the ability to deeply affect sex workers’ sense of self. “You internalize the idea that what you’re doing is wrong,” says Nosipho, “and that you’re a naughty girl, when you’re really just trying to make a living and take care of your children, which is the reason many of us start the work in the first place.”

sweat

One organization that offers support for sex workers is the Cape Town based non-profit organization SWEAT (Sex Workers Education and Advocacy Taskforce). SWEAT defends and promotes the human rights of sex workers through advocacy, community outreach, skill training, education, legal assistance, counselling and active lobbying for decriminalization. By engaging in dialogues with community leaders, health clinics, trade unions, parliamentarians and police, they seek to empower sex workers and create a more humane work environment. According to SWEAT’s advocacy officer Ntokozo Yingwana, this plethora of violations that sex workers face at the hands of clients, clinics and police are a direct result of the current criminalized state of sex work. She argues that “with regards to funding and supporting programs that protect sex workers’ rights, government’s hands will be tied as long as the work is criminal.” This means that access to condoms, ARVs, STI tests, tailored counselling, and mental health support remains extremely hampered.

Decriminalizing sex work will also positively impact the highly problematic relationship with the police. As Angie put it, “the police will have to take our cases.” And beyond the spheres of the practical, the legal and the physical, there’s the dignity factor too. According to Nosipho, “decriminalization would mean we are recognized as human beings. Everyone makes us believe we’re not worth anything. If we are recognized by law, and if clients know we can report them to the police if they violate our rights this will change the power dynamic between us. The Constitution must recognize my right to choose my profession. That’s all I want.”

And it’s not like South Africa legislation is unfit to move in the right direction; Section 12.2 of the South African Bill of Rights grants all citizens the right to security in and control over their body, but extending this right to transactional sex needs a political champion of the cause. Amidst widespread social and emotional anxieties about sex work, the fear of HIV/AIDS, arguments about the trade’s inherent exploitative nature, and the framing of the matter as a moral or ideological issue, Ntokozo explained that a politician’s push for sex workers’ rights, “could mean political suicide.” Yet, elevating sex work to the legal sphere will in fact empower sex workers to demand safe sex and enables the state to offer targeted health support and sensitize the public, police and clinics.

Thus, whether South Africans like it or not, it is time they recognize that sex workers will always be around and that they are human beings, with a right to health, protection, dignity, and autonomy over their own bodies. Angie and Nosipho’s stories urge South Africans to no longer let emotions, ideological interests, and sexual moralism trump basic human rights. But there is reason for optimism. On May 16th, the external Commission for Gender Equality (CGE) sided with SWEAT and announced they favor the repeal of all laws against consensual adult sex work, thereby explicitly calling for decriminalization. Ntokozo, evidently welcoming this move, believes it provides them with a “strong tool for lobbying” and convincing the government that sex workers’ rights are, indeed, human rights.”

Honor your commitment to equality for all, South Africa. Decriminalize sex work.

Maria Hengenveld studies women’s rights at Columbia University. She is interested in youth and gender in Southern Africa and writes for different websites, such as Africa is a Country and Dutch feminist magazine Tijdschrift Lover

This article previously appeared on “The Feminist Wire” on June 21, 2013. 


[1] Respected newspapers have referred to sex workers’ clients as ‘whore-walkers’ (hoerelopers) on some occasions.