NEW DELHI: Can a rape accused get away by claiming that he had penetrated a woman's vagina for "proper hygienic or medical purposes"? The hastily promulgated ordinance replacing rape with the broader and gender neutral offence of "sexual assault" has given rise to such a bizarre possibility.
This is because of the ill-thought-out definition of sexual assault, which encompasses a wide range of non-consensual sexual acts, whether they involve penetration or just touching. The howler in the ordinance is where it says that any of those acts would fall outside the purview of sexual assault if "such penetration or touching is carried out for proper hygienic or medical purposes".
The caveat is so loosely drafted that, far from protecting the rape victim, it could serve as a major loophole for anybody accused of committing sexual assault. The government's intention might have only been to provide a safeguard to medical professionals touching or penetrating the vagina in the course of their work. Since there is however no such clarification in it, the safeguard can be exploited by any person who "penetrates his penis", "inserts ... any object", "manipulates any part of the body", "applies his mouth to the ... vagina" or "touches the vagina".
As feminist lawyer Madhu Mehra put it, "The exception that has been cited in the definition is absurd, given that the penetration of penis into vagina or anus is never done for hygienic or medical purposes, and given that consent is anyway mandatory for all medical procedures. One wonders why the government pushed through the ordinance even before thinking through its definition of sexual assault in the new Section 375 IPC."
The government does have the onus of justifying this notion of exempting any penetration or touching done for hygienic or medical purposes, as no such exception was recommended by the Verma Committee in its definition of rape. This caveat did not figure even in the Bill introduced by the government in December.
Another glaring anomaly in the ordinance is its creation of three different provisions dealing with molestation. If somebody were to touch a woman's breasts, he could now be tried under any of these provisions: Section 375(e) dealing with the touching of private parts, Section 354 dealing with the outraging of woman's modesty or Section 354A dealing with sexual harassment. Since these provisions carry different levels of punishment, the discretion that the ordinance will be placing in the hands of the police is a recipe for abuse.
Rushed, ordinance is half-baked, may help rapists
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Rushed, ordinance is half-baked, may help rapists
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Rushed, ordinance is half-baked, may help rapists
