Critical Analysis: Gang Rape Brings India’s Sexual Assault and Rape Laws Under Scrutiny

 

Women throughout India say that their gender makes them vulnerable to attacks. (New York Times)

Women throughout India say that their gender makes them vulnerable to attacks. (New York Times)

On Sunday, December 16, 2012, in New Delhi, six men gang raped and brutally beat a 23-year old female university student resulting in her death. These events re-ignited an ongoing debate concerning India’s sexual assault and rape laws. The Indian government indicated that in 2011 they received more than 220,000 reports of violent crimes against women. However, government officials suspect that the actual number may be much higher. Women hope that this unfortunate incident will bring stiffer penalties to deter future rapes and assaults.

New Delhi authorities charged five of the six suspects with murder and several others offenses. They are investigating whether the sixth suspect is under the age of 18 and, therefore, a juvenile under New Delhi law. Although the crimes committed are punishable by death, India has been slow to execute prisoners. Currently India has hundreds of prisoners on death row. Groups such as Amnesty International, a non-governmental human rights organization, insist that the death penalty is not the solution. They face an uphill battle as citizens are outraged at the treatment of Indian women and demand an immediate overhaul of laws regarding rape and assault.

Numerous international lawmakers consider India’s laws governing rape to be narrowly defined and rooted in tradition. In many cases, it makes the possibility of conviction unlikely. The law lacks clear and concise sentencing guidelines and provides for a judge’s discretionary judgment in sentencing. Lawmakers have expressed frustration with evidentiary matters during court proceedings. The lack of sufficient evidence has a tendency to transform the trial into a battle of the genders where the men often win. Given the issues outlined, it is not surprising that the lawyer of three of the suspects charged urged them to plead not guilty.

In representing the accused, Manohar Lal Sharma stated, “[w]e are only hearing what the police are saying. This is manipulated evidence. It’s all on the basis of hearsay and presumption.” This accusation of manipulating the evidence outraged many of India’s citizens because a companion of the victim witnessed the entire attack and suffered injuries while pleading with the six individuals to stop. Further,a DNA test confirmed that the victim’s blood matched the blood found on the clothing of the accused. In response to the DNA findings, two defendants offered to testify against the others in exchange for a lighter sentence.

The out-pour of support from around the world serves as a glimmer of hope for women in India. Although they know that the process is gradual, they are optimistic that the future will bring change. The government formed a panel of legal experts charged with the task of reviewing suggested amendments to India’s rape and assault laws. The suggestions include sentencing guidelines, harsher prison sentences, and chemical castration. Either way, India needs a definitive definition of rape and sexual assault. Hopefully these preventative changes come in time because even after this horrific incident, another Indian woman was gang raped by seven men.   

Tausha Riley is a 2L at the University of Denver, Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

 

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