Summary of LALIT s comments on the Sexual Offences Bill submitted to the Select Committee of the National Assembly
LALIT has written to the Clerk of the National Assembly on 28th June 2007 to make a formal request to depone before the Select Committee of the National Assembly on the Sexual Offences Bill (No. VI of 2007).
Below is a summary of what LALIT intends to argue before the Select Committee, when we are called before it.
The very strong public reactions to the above Bill expose the difficulties that surround legislating in areas that are strongly influenced by different "codes of morality". As in the case of abortion, there is widespread, albeit retrograde, belief that legislation should be in line with this or that code of religious morality. The law is thus seen as a state repression mechanism to enforce religious or public morality, whatever it might be, at any given time. The public debate has also sometimes been marred by "legalistic" arguments that too often consider criminal behaviour and its consequences as a purely "courtroom" problem.
But over and above the difficulties relating to the nature of the public response to a specific proposed piece of legislation, the very concept of sexual offences poses some very special problems.
While the Bill aims at defining criminal offences and establishing appropriate sentences, it also has to specifically exclude, or decriminalize, consensual sexual activities in private between adults, and innocent sexual experimenting by adolescents; the latter posing particularly problems in the face of widespread and worldwide hysteria about paedophilia, and perhaps posing special problems in our society where up to 26 years ago, girls could be married off at the age of 15 years (or even less, with permission of the Court, or for religious marriages which were very common).
The role of legislation also include a republican duty to re-state the secular essence of the law. While the law does not determine morality, there is a dialectic relation between the law and the historical development of socially acceptable codes of morality.
Definition of the sexual nature of offences
Most criminal acts that are referred to as sexual offences are in fact more related to sadistic domination and power relations, rather than to sexual gratification as such. But whatever the motivation of the acts, there is no doubt that they can have consequences that relate to the future sexual behaviour of the victims.
Legislation should perhaps aim primarily at establishing and protecting the physical integrity of individuals from interference and violence. Any violent or coerced invasion of that integrity constituting the primary offence, thus moving away from the concept that the victim participated in some sexual activity against his or her will.
Comments on three distinct areas of the Sexual Offences Bill
1. Sexual assault on persons under 16 and under 12:
This section raises the problem of "consent" by a person between the ages of 12 and 16, when it comes to sexual touching, excluding penetration. It is worth noting here that the existing legislation ( attempt upon chastity, CC 249) also establishes the age of 12 as the cut-off point, when it comes to consent. The difficulty here is how to decriminalize innocent adolescent petting, without opening the door to predatory sexual assault by paedophiles.
There could possibly be a solution if an additional paragraph establishes that consent can only be given in relation to a person who is a minor (aged under 18 years).
It should be noted that a victim aged between 2 and 16 would still have the residual right to press charges when consent has been denied to a predator of less than 18 years of age.
2. The amendment of Section 250 of the criminal Code, to exclude sodomy as a crime on the same footing as bestiality.
This section of the Sexual Offences Bill has also attracted widespread controversy. We definitely believe that it is appropriate to define forced anal penetration as rape, and decriminalize consensual anal intercourse between adults in private. This decriminalization is essential to bring legislation in line with the fundamental right to privacy which is guaranteed by the Constitution.
The repressive response to the widely publicised rise in reported sexual offences is, in our estimation, wrong; new legislation should avoid simply reflecting the existing hysteria. It should attempt to introduce social dynamics that could alter the balance of forces in favor of potential victims. Harsher sentences of 45 or 60 years have inevitably brought about an escalation in repression: Section 23 relating to false declaration of sexual offence carries a penalty of up to 10 years penal servitude. Although we can see the logic of this escalation, there is no doubt that this section will be used to discourage victims from pressing charges under the SOB. We must also point out that "False and malicious denunciation in writing" (CC297), and "Effecting public mischief" (CC298), both carry a penalty of less than a year imprisonment and a fine not exceeding 2,000 rupees.
But these very harsh sentences also introduce a new danger for victims of sexual violence: more rapes could be followed by murder, to eliminate the only witness who could identify the rapist and expose him to 60 years in jail, more or less what he would get for cold blooded murder in any case.
We suggest that, instead of these ridiculously long jail sentences, some form of compulsory psychological and psychiatric follow-up would be more useful and socially responsible.
Jails should also be transformed from centres for incarceration to centres for rehabilitation. Very long sentences are known to make prison life well nigh unbearable for all prisoners and all prison guards, alike.
28 June 2007