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Introduction
This research paper introduces the discussion of legal responses to
violence against women. It provides the context for the more detailed
examination of those legal issues to which the courts can respond. Its
objective is to show the many ways in which violence is relevant to
legal disputes, even where it is not the direct issue and even though it
is often ignored. First, it discusses examples of different legal
remedies that have been, or might usefully be, invoked in cases in which
violence is the central issue, the reason for bringing the legal action.
The examples illustrate briefly the possible role of areas of law other
than criminal or quasi-criminal law. The paper presents examples of
cases where, while the legal issue before the court did not directly
involve violence, the judgment reveals that it was an underlying factor
in the case. In these examples violence was not a focus of the
discussion in the case but it emerges clearly from the judgment.
Violence
and the law
As it explains, violence by men against women is a longstanding problem
and remains widespread. Until recently it was sanctioned by the law's
indifference. While it may not be possible to envisage a complete and
comprehensive legal response to violence, either by the Commonwealth or
the State and Territories, the level of tolerance of it in different
areas of the law needs to be examined and addressed. A brief reading of
judicial decisions across a range of different legal issues shows that
violence is quite often a part of the background or context of a legal
dispute but it is either ignored or treated as irrelevant. This is not
to say, however, that courts always ignore or miss the violence in cases
involving domestic relationships when the case is not one legally
classified as 'about violence'. Indeed, the cases discussed below
indicate that courts can respond to male violence against women.
However, it was obvious from the response of women to the law that such
judicial sensitivity to issues of violence was by no means uniform.
Gender bias
and the judiciary
The Senate Standing Committee on Legal and Constitutional Affairs has
recently examined the issue of gender bias in the judiciary. Its May
1994 report concentrates on issues of sexual violence against women. The
Committee found that stereotypes deriving from historical, social
attitudes which did not accept women's status as equal, autonomous
citizens continue to be used. While the Senate Committee focused on
particular cases of sexual assault that had received widespread media
coverage, they suggested that it was not an adequate response to the
issue of gender bias merely to hold individual judges responsible. They
saw the problem a real, significant but largely unconscious problem of a
systemic nature calling for multiple solutions.
Violence
and legal education
In traditional legal education, violence against women is not typically
a subject in the law course in its own right nor, more importantly, is
it a topic in a general compulsory course such as property law,
contract, equity or administrative law. While it is an essential and
comparatively visible part of criminal law in courses in Australian law
schools, it should also be a prominent part of all traditional law
subjects. Violence is often part of the context of a case, or essential
to understanding the dispute between the parties, even while it is not
the central focus of the case. The federal Department of Employment,
Education and Training (DEET) has recognised this by providing funds for
the development of course materials on key thematic areas, including
violence, for inclusion in core subjects within the law curriculum.
Violence
extends beyond the criminal law
As a result of the ways in which legal categories are structured, there
is a tendency to see violence as relevant only to the criminal or
quasi-criminal law, largely the responsibility of the States and
Territories, and not to consider it as having any relevance to a range
of other non-criminal law issues. There may well be a tendency not to
recognise it at all in other areas. There has been considerable law
reform effort in Australia around criminal law issues such as rape and
sexual assault, violence by men against women in the home, child sexual
abuse and homicide laws. The focus has been on male violence against
women in its clearest and most direct forms. This work, evident in the
reports of various task forces, committees and inquiries, including the
National Committee on Violence Against Women, has been essential to make
violence against women a more prominent concern in traditional criminal
law. There has been much less attention to violence which arises less
directly in the law and may take other forms. For example, women are
subjected to a variety of different injuries. They may be harmed in
their workplaces and the streets by sexual harassment. They may be
vilified or infantilized or sexualized in media representations. They
may be harmed in a seemingly infinite variety of forms of pornography.
They may also be injured through medical abuses, particularly in
relation to their reproductive capacities. As young women, they may be
distinctively harmed by the juvenile justice system. Abuses against
women are perceived as a 'by-product' of war. Yet male violence against
women is routinely ignored outside criminal or quasi-criminal areas.
Legal
responses to violence against women
The law can respond to violence against women in a number of different
ways, as an examination of violence against women in the home
illustrates. These responses include enforcement of existing criminal
laws, such as the law of assault; resort to quasi-criminal laws, such as
the use of protection/restraining/apprehended violence orders; the use
of administrative law remedies, such as a writ of mandamus to compel
police to exercise their powers under the criminal law in appropriate
cases.
The broader
use of tort law
Existing torts
There have been some successful attempts to address violence in the area
of tort law, or civil wrongs. Actions for negligence have been brought
in cases where the defendants have breached their duty to protect women
at foreseeable risk of violence. Examples include an action against the
police for failing to protect women against a known rapist and actions
against landlords for failure to protect tenants from rape and other
forms of assault. Negligence actions are potentially available against
any body or person with a responsibility to protect the community or
provide a safe environment, for example, a school or university, an
occupier of a public building, or perhaps a local government authority
with responsibility for street lighting. The tort of trespass to the
person, which includes assault and battery, has also been used directly
against perpetrators.
Developing
new torts
Tort law may also have the potential to develop other responses to
violence. For example, in the UK there is currently debate over whether
the law relating to nuisance and the tort of intentional infliction of
emotional distress can deal adequately with harassment or whether a new
tort should be developed. Tort law could develop 'a category sui generis
for injuries suffered by individuals because they are women', using the
understanding of social injury.
A new
framework
There are many possible responses to the problem of violence against
women and a variety of legal doctrines in which violence emerges as an
issue. A complete legal response to violence might require a
substantially reconstructed legal framework with a new category solely
for the purpose of dealing with violence against women in all its forms.
This is beyond the scope of what can be achieved in this reference.
The
emergence of violence against women
In many cases violence against women may not be the issue before the
court. However, a history of violence may emerge from a discussion of
the background of the case. It can become a central part of the context
of the case. The first three examples below form a case study of how
aspects of the non-criminal law respond to 'domestic' homicide. These
and the other examples here show how, by examining violence against
women only through criminal or quasi-criminal law, its extensive
incidence and effects in other legal and social contexts can be easily
overlooked. The examples may also illustrate the link between violence
and women's economic inequality.
Violence
against women in case laws
Now I shall deal with the facet relating to offences against women. The
offences are of various types. They find mention in many enactments.
These under- mentioned provisions are enumerated in Indian Penal Code,
1860:
¢ Section 304-B ----- dowry death
¢ Section 354 ----- Assault or criminal force to woman
¢ Section 361 ----- kidnapping from lawful guardianship
¢ Section 366 ----- kidnapping, abducting or inducing a woman
¢ Section 372 -----selling minor for purposes of prostitution
¢ Section 376 ----- rape
¢ Section 376-A ----- intercourse by a man with his wife during
separation
¢ Section 376-B ----- intercourse by public servant with woman in his
custody
¢ Section 376-D ----- intercourse by any member of the hospital with any
woman in that hospital
¢ Section 494 ----- remarriage
¢ Section 498 ----- enticing or taking away or detain a married woman
¢ Section 498-A ----- dowry cruelty
These are the main offences under
the IPC against women. Certain offences are general against all women
and certain offences are applicable in respect of married women.
Assault or
criminal force to woman
Te apex court in State of Punjab v. Major Singh,
while dealing with section 354 had interpreted the term 'women' denoting
female of any age. It further held that an offence which does not amount
to rape may come under the sweep of section 354, IPC.
In this context the decision rendered in the case of
State v. Musa is worth noticing. The
aforesaid offence caught the eye of the nation when a senior police
officer misbehaved with another senior officer belonging to the IAS
cadre. The lady officer was slapped before the members of the elite
society. Their Lordships (Supreme Court) observed that the observations
made in the FIR were neither absurd nor inherently improbable. Finally
the accused was acquitted.
In Rupen Deo
Bajaj v. Kanwar Pal Singh Gill, the Supreme Court said that the
offence under this section should not be treated lightly as it is quite
a grave offence. In certain western countries privacy to person and even
privacy to procreation are regarded as very sacrosanct rights and if
this offence is studied in that prospect the offence would clearly show
that it affects the dignity of women and, therefore, the accused of this
offence, when proved, should be appropriately dealt with.
In People's
Union for Democratic Rights v. Police Commissioner, Delhi, Police
Headquarter and another, the supreme court after holding that the
accused was guilty of offence under section 354 of IPC, awarded, to the
victim, compensation which is to be recovered from the salary of the
guilty officers.
Rape
Presently, I shall deal with the regard to offence of rape. Offence of
rape is regarded as one of the most heinous crimes.
Every person's physical body is a temple in itself.
No one has the right to encroach and create turmoil. When there is any
kind of invasion or trespass, it offends one's right. The right of a
woman to live in her physical frame with dignity is an epitomization of
sacrosanctity. An impingement or incursion creates a sense of trauma in
the mind of the person. Not only does the body suffers but also the mind
goes through such agony and tormentation that one may not be in a
position to forget it throughout her life. She becomes a different
person in the eyes of the society for no fault of hers. That apart the
offence of rape is an offence which creates s a dent in the social
marrow of the collective and a concavity in the morality of the society.
In State of
Haryana v. Mange Ram, their lordships (Supreme Court) gave
emphasis highlighting that the evidence in the case of this nature
should be appreciated on broader probabilities and the judge should not
be carried away by insignificant contradictions.
In State of
A.P. v. Ganula Satya Murthy, the Supreme Court made an
observation that it is an irony that while we are celebrating women's
rights in all spheres we show little or no concern for their honour.
Their lordships further observed that the courts must deal with rape
cases with utmost sensitivity and appreciate the evidence of the
totality on the background of the entire case and not on isolation.
An aspect which needs to be stated
here is that a woman who has been raped is not an accompliance.
She is the victim of a carnal desire. In a
case of rape, corroboration need not be searched for by the judge if in
the particular circumstances of the cases before him he is satisfied
that it is safe to rely on the evidence of the prosecutrix. If the
prosecutrix is able to give a vivid account of how she was subjected to
sexual harassment and the intercourse, the same can be placed reliance
upon and the conviction can be recorded.
In State of
Maharashtra v. M.M. Madikar, it has been empathically laid down
that there is rule or prudence requiring corroboration of the victims in
a case of rape.
At this juncture I may state that
sometimes the trial courts give emphasis on absence of physical
injuries, lack of corroboration by medical evidence, non-raising of
alarm, no evidence of showing resistance and such other ancillary
factors. From these angles the prosecution is disbelieved or the court
arrives at the conclusion that there is consent.
The apex court in the case of
State of H.P. v. Mange Ram, has clearly
laid down that if the prosecutrix submits her body under fear or terror
the same would never amount to consent. In the said case their lordships
also held that in the absence of any violence to the body of the victim
in all circumstances would not give rise to inference of consent.
In State of
Rajasthan v. N.K. , wherein the supreme court held that the
absence of injuries on the person of the prosecutrix is not necessary to
falsify the allegation or be regarded as an evidence of consent on the
part of the prosecutrix.
Dowry
cruelty and dowry death
The other offences which relate to women and have become wanton and
excessive are offences under section 304-B and 498-A. the apex court has
given a broader meaning to the concept of cruelty enshrined under
section 498-A of ipc. A case may not fall under section 304-B when
ingredients are not fulfilled but when cruelty is otherwise proved, the
trial judge is entitled to record a conviction under section 498-A. The
ingredients which are necessary to be satisfied for an offence under
section 304-B are as follows:
¢ The death of the woman is
caused by any burns or bodily injuries.
¢ Occurs otherwise than under abnormal circumstances.
¢ And the aforesaid two factors spring within the seven years of
the girl's marriage, and
¢ Soon after her death, she was subjected to cruelty and harrased
by her husband or his relatives; and
¢ This is in connection with the demand of dowry.
Homicide
and violence outside the criminal law
One of the best known legal aphorisms is 'no man shall profit from his
own wrong'. A common example given of this is the rule that a person
cannot benefit under the will of someone that person has killed.
However, the circumstances of some homicide cases, in which women have
killed their husbands after a long history of abuse; have confronted
some courts with the dilemma of how to apply this principle. For
example, in a case the Supreme Court of Victoria was confronted with an
application for probate by a woman named in her husband's will as his
executor who had pleaded guilty to manslaughter. The judge noted that he
had before him materials from the criminal proceeding, which
demonstrated that the relationship involved violence or threats of
violence directed by the deceased to his wife.
The cumulative effect of the
deceased's behavior was to engender in his wife a very real and
understandable fear of him.
After reviewing a number of authorities concerned with the principle,
the Court decided, in view of its finding that her level of moral
culpability was markedly diminished, that this was not a case in which
the rule should operate to prevent the granting of probate. Similarly,
in the NSW case Public Trustee v Evans, the Court decided that the
forfeiture rule should not apply where the applicant had been subjected
to a prolonged history of violence prior to the killing.
Social
security
A co-ordinated response to domestic violence requires a rethinking of,
among other things, housing and social security policies. In the context
of social security, a history or current fear of violence may arise as
an issue in a number of ways. For example, a sole parent may not wish to
pursue child support from her former violent partner because she is in
fear of him. This is a matter, which has been recognized by the
Department of Social Security in its guidelines as forming a valid basis
for an exemption from the obligation to pursue support from her
ex-partner. Alternatively a woman may be overpaid entitlements as a
result of pressure by a male partner to make a claim to which she is not
entitled. It has also been suggested to the Commission that women who
fear violence from their ex-partner may be more likely to plead guilty
when confronted with criminal charges relating to overpayments, which
may themselves flow from the violence by a partner. In one case
recounted, a woman had pleaded guilty as she believed that this would
prevent her ex-partner from finding her. It was suggested that if she
had been prepared to plead not guilty and the matter gone to trial, she
would most likely have been acquitted. It appears that there may be many
situations in which men's violence against women (and children) may be
central to the context of a case but not formally be an issue for
decision. The Department of Social Security is preparing guidelines for
staff on dealing with clients who are the targets of violence. However,
this recognition of the impact of violence on clients has not been
incorporated into the legislation which governs entitlements.
Suggestions
and observations
# A wider social movement of educating women of their rights, to conquer
the menace, is needed more particularly in rural areas where women are
still largely uneducated and less aware of their rights and fall an easy
prey to their exploitation.
# It is expected that the courts
would deal with such cases in a more realistic manner and not allow the
criminals to escape on account of procedural technicalities or
insignificant lacunae in the evidence as otherwise the criminals would
receive encouragement and the victims of the crime would be totally
discouraged by the crime going unpunished.
# The courts are expected to be
sensitive in cases involving crime against women. The verdict of
acquittal made by the trial court in the case is an apt illustration of
the lack of sensitivity on the part of the trial court.
# Another fact is delay in filing of
F.I.R. in a case of rape it is dependent upon the facts of each case.
The victim does not immediately rush to the police station to lodge an
F.I.R. she has too overcome the trauma. There is consultation with the
family members and a decision is taken. All these circumstances are to
be kept in mind.
# It is noticed that some judges
unnecessarily gives emphasis on the presence of spermatozoa in the
victim's private parts. It is to be borne in mind that the definition of
rape has a different connotation. A mild penetration would meet the
ingredients of the crime. There may be several circumstances which
affect the presence of the spermatozoa and hence, emphasis on the same
is unwarranted.
Conclusion
Violence is a part of the background to many legal disputes, even though
it is less frequently the central issue before a court or tribunal. The
examples above are merely illustrations. Many others could have been
chosen to make the same point.
Other areas of federal law which
warrant some further scrutiny in this context include banking and
insurance, and the now well-recognized phenomenon of 'sexually
transmitted debt', or unconscionable guarantees; customs law regulating
the importation of pornography and other material which is violent or
contributes to the maintenance of women in a position of disadvantage;
broadcasting law and the ways in which vilification of women is dealt
with; employment, law and the centrality of sexual harassment as an
occupational health and safety issue.
Bibliography
(*) Joti journal, October 2002, Vol.3,
Judicial Officers' Training & Research Institute, High Court of Madhya
Pradesh, (2002).
(*) Agnes, Flavia, Law and gender inequality- the
politics of women rights in India, Oxford University Press, New
Delhi, (1999).
(*) Graycar, R., & Morgan, J., The Hidden Gender
of Law, Federation Press, Sydney (1990).
(*) Commonwealth to Stamp Out Gender Bias in Law
Curricullum, Media Release from Minister for Employment,
Education and Training 23 March 1994.
(*) Manorama Yearbook, 2003, 38th
publication, Malayala& Manorama, Banglore, (2003).
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The
author can be reached at: raghav_nliu@legalserviceindia.com
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