Reforming Sexual Offences in India: Lessons in Human Rights and Comparative Law

Griffith Asia Quarterly, 2 1: 37-56, 2014

Posted: 27 Jun 2015

See all articles by Simon H Bronitt

Simon H Bronitt

Sydney Law School, The University of Sydney

Ashutosh Misra

Griffith University

Date Written: 2014

Abstract

This paper scrutinizes India’s outmoded laws governing sexual offences, how they impact on women and how they deny access to justice for members of vulnerable groups in society. The authors posit that public concern over a perceived ‘epidemic’ of sexual violence ignores the prevalence (and immunities) granted to sexual violence that occurs within the family. The authors argue that the marital rape immunity in the Indian Penal Code (IPC), which is one of the few codes in modern democratic systems that accords males a right to rape wives with impunity, preserving an outdated view of gender relations and female sexuality that denies some women the right to denial based on marital status. The essay’s comparative account reveals that Indian criminal law is seriously ‘out of step’ with legal developments in the UK, Australia and elsewhere. For instance, denying marital immunity to rape of a child bride (under 15 years of age) and in cases where a court has issued a judicial separation, offers cold comfort to the majority of women whose husbands may still claim a legal privilege to rape. The development of rape laws in India since the 1980s, the authors conclude, show that reform invariably follows from a crisis, such as the 2012 brutal rape of a physiotherapy student in New Delhi. Bronitt and Misra note that crisis-drive reforms tend to highlight the community's concerns about leniency of punishment, rather than providing better laws, procedures and tools for investigation and supporting the victim. The authors recommend that public debate in India must be shifted away from viewing sexual offences as crimes against public morality, decency or modesty. Instead, sexual offences reform must be viewed through a human rights prism, which is consistent with India’s international obligations, seeking to eliminate both gender and sexuality-based violence and discrimination.

JEL Classification: K00

Suggested Citation

Bronitt, Simon H and Misra, Ashutosh, Reforming Sexual Offences in India: Lessons in Human Rights and Comparative Law (2014). Griffith Asia Quarterly, 2 1: 37-56, 2014, Available at SSRN: https://ssrn.com/abstract=2623352

Simon H Bronitt (Contact Author)

Sydney Law School, The University of Sydney ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://https://sydney.edu.au/law/

Ashutosh Misra

Griffith University

170 Kessels Road
Nathan, Queensland QLD 4111
Australia

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