Gender Based Violence Laws and Remedies Available

SEXUAL VIOLENCE LAWS: REMEDIES AVAILABLE

WHAT IS VIOLENCE?

Behaviour intended to exert control and power over someone who can be a family member, household member (domestic help), intimate partners, colleagues or any other person, in private or in public. One feels violated, whether or not others can see or feel it. Once, a few times or several times. Can be in a subtle or structural form. Language: Violence against women

SEXUAL VIOLENCE IS A FORM OF GENDER BASED VIOLENCE

TYPES OF GENDER BASED VIOLENCE Violence against women & girls Violence against people from LGBTQIA community Domestic violence Intimate partner violence Indirect (structural) violence Physical Psychological Sexual Economic

WHAT ALL GENDER BASED VIOLENCE LAWS AIM TO DO Prevent Protect Support Prohibit Redress VIOLENCE OF ALL FORMS Promote Enforce Monitor EQUALITY & NON-DISCRIMINATION

DOES THE CONSTITUTION PROVIDE FOR PROTECTION AGAINST VIOLENCE?

The progress of any society depends on its ability to protect and promote the rights of its women. Guaranteeing equal rights and privileges to women by the Constitution of India had transformation of the status of the women in this country. marked the step towards the [Satish Chander Ahuja v. Sneha Ahuja, Supreme Court of India, 15 Oct., 2020]

RIGHT TO EQUALITY/NON-DISCRIMINATION (ARTICLES 14, 15 & 16) Right to Equality (Art. 14): Right against discrimination. Equality before the law & equal protection of the laws. No discrimination on ground only of sex (Art.15) Equal opportunity (Art. 16): Nobody shall be ineligible for or discriminated against for any employment or in any office merely because she's a woman/LGBTIQIA. Special provisions

RIGHT TO LIFE (ARTICLE 21) Right to live with dignity (Art. 21): Right of women/LGBTQIA to live life free from violence, safe abortion, right to autonomy etc. Fundamental duty of every citizen to renounce practices derogatory to the dignity of women (Art. 51-A)

VIOLENCE IS THE WORST FORM OF DISCRIMINATION

UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendation No. 12: Violence against women, 1989 Considering that Articles 2, 5, 11, 12 and 16 of the Convention require the States parties to act to protect women against violence of any kind occurring within the family, at the work place or in any other area of social life, Taking into account Economic and Social Council resolution 1988/27, Recommends to the States parties that they should include in their periodic reports to the Committee information about: 1. The legislation in force to protect women against the incidence of all kinds of violence in everyday life (including sexual violence, abuses in the family, sexual harassment at the work place etc.); 2. Other measures adopted to eradicate this violence; 3. The existence of support services for women who are the victims of aggression or abuses; 4. Statistical data on the incidence of violence of all kinds against women and on women who are the victims of violence.

SEXUAL OFFENCES UNDER THE INDIAN PENAL CODE

Rape: Without consent and against the will of a woman: Penetration of the penis, to any extent, into the vagina, mouth, urethra or anus of a woman or if he makes her to do so with him or any other person; or Insertion to any extent, any object or a part of the body other than the penis, into the vagina, the urethra or anus of a woman or if he makes her to do so with him or any other person; or Manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any body part or if he makes her do so with him or any other person; or If he applies his mouth to her vagina, anus, urethra or makes her to do so with him or any other person. Consent of the woman invalid under the following circumstances: When consent has been obtained by putting her or any person in whom she is interested, in fear of death or hurt. When the man knows that he is not her husband and she gives consent because she believes him to be her husband. When she is unable to understand the nature and consequence of the act to which consent is given due to intoxication, administration of any stupefying or wholesome substance or due to certain mental unsoundness wherein she is unable to understand the act to which she gives her consent.

Outraging modesty: If a man assaults or uses criminal force on any woman with the intention of outraging her modesty or knowing that it is likely to outrage her modesty If a man utters any word, sound, gesture, exhibits any object with the intention that it is heard or seen or intrudes the privacy of a woman Sexual Harassment: If a man makes physical contact and advances, demands or requests for sexual favours, shows pornography against the will of a woman or makes sexually coloured remarks Disrobing: If a man assaults or uses criminal force against a woman with the intention of disrobing her or compels her to be naked

Voyeurism: If a man watches or captures the image of a woman in a private act or disseminates such an image, he shall be punished under this section. A private act includes an act where the victim does not expect to be observed by the man or any other person at his behest. If a woman has consented to the capture of the image but not to dissemination, still the dissemination will be punishable. Stalking: If a man follows or contacts a woman or attempts to do so despite a clear indication of disinterest by her, or monitors the use of internet, email or other electronic communication by her Sexual intercourse by husband upon his wife during separation: If a husband, living separately (with or without a decree of separation) from his wife has sexual intercourse with his wife, without her consent shall be punished with a stringent punishment.

Abetment and Attempt to commit the above offences is also punishable. Confidentiality: No person can print or publish any matter in relation to these proceedings except with prior permission of the Court. Marital rape not recognised: Still comes within the definition of cruelty under S. 498-A, IPC and DV Act

Cruelty (Section 498-A) Husband or relative of husband of a woman subjecting her to cruelty: When the husband or the relative of the husband of a woman, subjects such woman to cruelty Cruelty means Anything done wilfully that is likely to drive a woman to commit suicide Grave injury or danger to her life, limb or health (can be physical or mental) harassment with the intention of forcing her or any person related to her to meet any unlawful demand for any property or valuable security or if she or any person fails to meet the demand.

WHAT TO DO

Cognizable offences: Police bound to register FIR and investigate. Can be registered from the hospital by survivor or any other person. Accurate words to be used to describe the incident. Non-cognizable: Approach court and seek directions for the police to start the investigation. Simple assault etc. come within this category. Utility of NC complaint: Record (proof) of violence Non-compoundable offences

Scheme for financial assistance and other support to Rape Victims: Scheme of National Legal Services Authority for compensation to rape survivors. Support to Victims during Investigation and Trial: Legal aid. With recent amendments, a government official from Women & Child Development Dept. Or an NGO can be designated as a support person to help the victim during the procedures of investigation and trial.

The Protection of Women from Domestic Violence Act, 2005

Who can claim? A woman in a domestic relationship with the person committing violence (domestic relationship is when they live or at any point lived together in a shared household when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family)

Definition of domestic violence under the DV Act, 2005 Act, omission or conduct Harms or injures or endangers the health, safety, life, limb or well-being (mental or physical) or even if it tends to do so. It includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse

What is physical, sexual, verbal & economic abuse?

(i) physical abuse means any act or conduct which can cause bodily pain, harm, or danger to life, limb, or health and includes assault, criminal intimidation and criminal force; (ii) sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman; (iii) verbal and emotional abuse includes (a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and (b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested. (iv) economic abuse includes (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled or which the person requires out of necessity. It will include her household necessities and that of her children, stridhan, property, payment of rental related to the shared household and maintenance; (b) selling away her stridhan or any assets, movable or immovable property, shares etc. in which the woman has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by her or her children. (c) prohibiting or restricting continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship. It includes access to the shared household.

Domestic violence also includes: harassing, harming, injuring or endangering in order to force a woman or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security Even if she feels threatened Otherwise injuring or causing harm, whether physical or mental, to the woman.

Order of protection: Restraining the husband and his family members from committing violence or from coming anywhere near her. Live in the same house: A woman cannot be thrown out of the house by husband or in-laws or father. Maintenance Custody Compensation: For any harm or injury caused due to domestic violence Stridhan: Right to her clothes, jewelry, money etc. that belongs to her. (+criminal breach of trust)

The Protection of Women from Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013

What is sexual harassment? Sexual harassment includes unwelcome sexually tinted behaviour, whether directly or by implication, such as (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

What to do if you are being sexually harassed at workplace? File a written complaint to Internal Complaints Committee/LCC. You can either ask for an enquiry to be conducted or choose to conciliate. If you ask for an enquiry, the the Complaints committee has to conduct a detailed investigation within the workplace and recommendations to the employer. The Complaints Committee has the discretion to suggest the penalties after hearing both the parties. Right to appeal against the order of the ICC/LCC for further reliefs under this Act. ORGANISED SECTOR: Internal Complaints Committee (ICC) at each office or branch of an organization employing 10 or more employees. UNORGANISED SECTOR: At the district level, the Government is required to set up a 'local complaints committee (LCC) to investigate and redress complaints of sexual harassment from the unorganized sector or from establishments where the ICC has not been constituted because the establishment has less than 10 employees or if the complaint is against the employer. give their decision along with the

ACCESS TO JUSTICE

Lack of recognition of the issue and its devastating impact Fear Resigned state of mind because of internalisation or hegemonic control Societal attitude Social stigma A Division Bench headed by Gita Mittal, CJ (retd.) took suo motu cognizance of increasing domestic violence cases against women during COVID-19 lockdown. Even at the best of the time, women and girls face tremendous barriers in accessing means to meet for help and securing justice. Illiteracy, financial incapacity, ignorance of available assistance, family and societal barrier,; fear of formal institutions like police, insufficient legal aid, lack of information, etc impede women and girls from accessing resources against domestic violence being faced by them. the biggest obstacle to a woman seeking assistance against abuse and domestic violence is the fact she has to go against intimate domestic partners or her own family members. The lack of enforcement as well as alternative source of residence also impedes women filing complaints with officials or the police. There is also a huge trust deficit.

High Court suggested following measures to grant immediate assistance: (i) Creation of dedicated funding to address issues of violence against women and girls as part of the COVID-19 response by the Union Territories of the Jammu and Kashmir and Ladakh. (ii) Increased availability of call-in services to facilitate discreet reporting of abuse. (iii) Increased tele/online legal and counselling service for women and girls. (iv) Designated informal safe spaces for women, say grocery stores and pharmacies, where they can report domestic violence/abuse without alerting the perpetrators. (v) Immediate designation of safe spaces (say for instance empty hotels/education institutions etc.) as shelters for women who are compelled to leave their domestic situation. These shelters must be treated as accessible shelters. (vi) Giving urgent publicity to information regarding all of the above measures as also the availability of the facilities for seeking relief and redressal against the issues of domestic violence. (vii) Increasing awareness campaigns on all aspects of the issues.

The Court also passed certain directions on various authorities: (a) Secretary, Department of Social Welfare; Governments of UTs of J&K and Ladakh; and the Member Secretary, J&K State Legal Services Authority, will submit a report informing about the steps taken regarding domestic or any other kind of violence being faced by the women on account of the implementation of the COVID-19 lockdown. (b) Secretary, Department of Social Welfare, Governments of UTs of J&K and Ladakh and the Member Secretary, J&K State Legal Services Authority will examine suggestions and also the innovative measures taken by countries world over and the spotlight initiative taken up by the United Nations. They will take a view regarding requirements and steps to be taken to mitigate the sufferings of the victims of domestic violence in the Union Territories. (c) The Secretaries of the J&K Legal Services Authority shall call for list of all cases involving cases of domestic violence which are pending as complaints with the police stations in the Union Territories or in the courts and ascertain the safety and well being of the complainants. (d) All the courts in the UTs of J&K and Ladakh shall treat cases of domestic abuse as urgent and proceed with the matters in accordance with the Circulars issued regarding the procedure to be followed ensuring social distancing.

District Legal Services Authority, Jammu has established various Helpline numbers to facilitate those in distress. The helpline numbers can be approached any time by any Women, elders, Senior Citizens, Children for providing them legal aid/assistance, counselling on domestic Violence.

WHAT CAN YOU DO?

Creating safe opportunities for women to share their experiences Speaking out and breaking the silence collectively Working for policies that confront the issue Supporting and taking support of community organisations who share our goals Respond responsibly to instances of violence around you

THANK YOU