by Harmanjot Kaur
Crime is simply defined as the opposite of altruism.[1] Criminal law, especially related to sexual offences has been the cynosure of intense debate. While there are various theories on the causation of crime, today we need to understand why people get deviated. Critical analysis of the crimes will not only help us in understanding the psychology of criminals but also help us in devising ways for the prevention of crime. Research has shown that the main reasons include unemployment, rising competition, paternal conflicts, domestic and even substance abuse.
What is recidivism? Recidivism is defined as the persistent and excessive re-engagement in the same crime whether convicted or not. Traditionally, it was related to less heinous crimes such as theft, forgery, chain-snatching, etc. However, ranging from Nirbhaya Rape Case to Kathua’s Rape Case, we have observed that ‘rape’ although is a heinous crime, but due to its increased frequency, it’s taking the shape of a recidivistic offence. Rape is not only molestation of the genitals without consent but also an attack on the bodily integrity of an individual. In the recent post, we have observed another instance of violation of the right to privacy and the dignity of an individual as stated in the Puttaswamy case. Additionally, the status of WhatsApp chats as secondary or corroborative evidence has been challenged.
Notwithstanding, the increased crime rates, analysis of the data by NCRB envisaged a poor rate of conviction due to the lack of proper evidence and testimony.
Recidivism: Rape taking a new shape
Today, rape is not just a matter of uncontrolled lust, but a means to represent the patriarchal dominance. However, we cannot claim it as merely a perverse effort to satisfy the ego. The ‘feel-good hormone’ and increased testosterone levels rooting for the temporary gratification can be classified as one of the main biological causes. Understanding the rationale indicates the presence of many psychological, social, educational, and environmental reasons for it. This is due to the absence of social and emotional connections in the fast-pacing world. Maslow’s Hierarchy opinionated five basic needs to keep a person motivated viz; physiological, safety, love, esteem, and self-actualization. All along, in today’s world, the crime rates have been steadily increasing because of the lack of fulfillment of these basic needs. Supporting this research studies on juvenile delinquencies present us with the evidence that if not treated with due care and tenderness at the infantile age, these offenders anticipate as incorrigible criminals in the latter halves of their lives. According to Kohlberg, an individual’s moral development is defined as a definite process. This includes pre-conventional morality, conventional morality, and post-conventional morality. The initial two are based on obedience and punishment. The latter has more deviated toward universal principles of morality. This is similar to the ‘Theory of Personality’ by Sigmund Freud.
Criminology Literature on Recidivism
John W. Mannering described recidivism as a persistent crime related to antisocial, aggressive, highly competitive and egocentric behaviour.[2] Supporting this argument, Dr. Sutherland linked it to the social psychology of offenders and the inadequate reformative techniques. A study by Prof. Goring established a view that there is an inverse relationship between the increased degree of recidivism and lower Intelligence Quotient (I.Q.). However, this view was opposed by Prof. Gillin.[3]
Jurisprudence established in Rape Laws: An Overview
Firstly, ‘rape’ is a crime not just against an individual but society at large. It is a violation of human dignity and the ‘right to life’ as guaranteed by Article 21. This was portrayed by a bench of three judges in the case of Shri Bodhisattwa Gautam v Miss Subhra Chakraborty.
Secondly, the arduous part lies in the collection and scrutinization of the evidences. Keeping an eye, on the strenuous task of collecting evidences, the Apex Court in the case of Shamabhai Madhurbhai Koli Patel vs State of Gujarat held that the court would not disbelieve the fact that the rape had been committed merely based on the doctor’s lack of proper evidence. Improvising the ways to escape conviction, there are various ways articulated in order to use limitations of the innate judicial system. This can be done by marrying the rape victim. In all probability, it will be raining. Numerous jurists are still doubtful as there can be no guarantee of a bonafide intention, respectful treatment of the rape victim as the wife of the rape-doer because of the aggravated assault seeking revenge for the rape charges. It is a violation of the dignity and honour of the affected party and Section 320 CrPC. Conceivably, it would give rise to offences such as marital rape, which has no explicitly reckoned provisions in the Indian Law. Therefore, in the case of Narinder Kumar vs State of Punjab, the Apex Court held that no compounding under rape or attempt to rape can be imagined.
Thirdly, it is the violation of Article 2 of the United Nations Declaration of Human Rights which entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion.
Fourthly, consent plays a vital role as it entitles the rights and privileges endowed upon the person. The elucidation of the term ‘consent’ comes into question. However, this provision is not immune from criticism as there is a clear indication of coercion and undue influence due to the societal pressure, family, honour and reputation in this domain. While one of the key features under Section 114A of the Indian Evidence Act is the presumption of no consent in the rape cases. Indeed the jurisprudence of onus of proof in rape cases lies on the victim, but it is very difficult to collect evidences and establish ‘irrebuttable evidence’ in the court of law.
Fifthly, in the recent case, the WhatsApp chats were taken into consideration as evidence. The distinction between a ‘friendly-banter’ and a ‘consent’ is often treated as a grey area. Section 88A of Indian Evidence Act, 1872 purports the electronic media as just a corroborative evidence. While the acquittal based on WhatsApp chats was not reasonable; the instances such as phone tampering, lost device, proper condition of the device had been ignored.
Lastly, the procedure one has to go through for treatment or for the evidence is very loathsome. One such test is the two-finger test is defined as unscientific because it breaches a woman’s right to privacy, mental and physical dignity as established in Lillu @Rajesh & Anrs. vs State of Haryana. Furthermore, the decent treatment of complainant is often omitted, counting on the traditional definitions such as sanskari girl and izzat attached to it. The psychological and mental disorders is often a neglected field in forensic science. Similarly, the trauma has a severe impact on the rational thinking of the rape victim as in Post-Traumatic Stress Disorder (PTSD). The scope, exceptions and provisions should be laid efficiently in order to inscribe them in the ambit of law.
Conclusion
In the light of the above discussion, we have observed the life of a rape victim. It is quite plagued, ignored, humiliated, admonished, and tormented. Ironically, according to recent studies, it has been recorded that 70% of the rape in the United States is committed by someone the victim already knows. Additionally, the scope of Section 376(2)(f) and Section 376(2)(k) should be clearly demarcated. It has been found that many times there is a relationship of respondent superior and because of the fear of getting fired from the job, many cases go unreported. In addition to it, there are popular cliché such as ‘Ghar ki Baat, Ghar Mae’ and ‘Log Kya Kahengae’ because of which many cases of domestic violence and marital rapes are often ignored. In order to combat it, specialized training should be imparted on the Magistrates and the health workers to instill sensitivity towards feelings, image and reputation of the rape victim.[4] The guidelines set by Directorate of Forensic Science Services (DFSS) under MHA should be followed. A shift to the alternative forensic tests as recommended by Mallimath Committee can be used as an alternative to collect evidence pertaining to the case.
The narrow focus has led to the flawed understanding of the rape victims, which results in overlooking the gravity of the situation. If the temporary myopia is the problem in certain sections of law, it should not limit its long-term effects. To curtail defects of the Inquisitorial System, a shift focusing on the rigorous procedure of the Adversarial System is suggested.[5] ‘Mud-slinging’ and attack on the person’s character in the rape cases could be restricted by following a proper and adequate system of justice.
[1] He16-95.pdf, http://www.des.ucdavis.edu/faculty/Richerson/BooksOnline/He16-95.pdf (last visited Jul 12, 2021).
[2] Recidivism Among Perpetrators of Sexual Assault INSPQ, https://www.inspq.qc.ca/en/sexual-assault/fact-sheets/recidivism-among-perpetrators-sexual-assault (last visited Jul 11, 2021).
[3] Intelligence and Crime - Criminal Justice - IResearchNet, Criminal Justice, https://criminal-justice.iresearchnet.com/crime/intelligence-and-crime/3/ (last visited Jul 11, 2021).
[4] (Mallimath Committee “Criminal_justice_system. Pdf” n.d, 273 Recommendation)
[5] International_Statistics_on_Crime_and_Justice.pdf, https://www.unodc.org/documents/data-and-analysis/Crime-statistics/International_Statistics_on_Crime_and_Justice.pdf (last visited Jul 11, 2021).
Comments
Post a Comment