SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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charged as an offence. It stated that alteration to the definition of rape by a process of judicial interpretation, could result in confusion in the minds of the prosecuting agency and the courts and therefore desisted form doing so. As noted above, the Delhi High Court has urged that the government of India implement the report of the Law Commission. In India, the Goa Children’s Act 2003 is the first to include the idea of graded sexual assault (see discussion above). In Bangladesh, the Suppression of Violence against Women and Children Act 2000 introduces the offence of “sexual oppression” which is defined as, “any person with a view to illegally satisfying his sexual lust by any of his organ or matter touches genital organ or any part of body if a woman or child or violates her modesty such act of that person shall constitute offence of sexual oppression.” A minimum rigorous imprisonment term of 3 years which may extend to 10 years and a fine are prescribed as punishment. In Sri Lanka Section 365B of the Penal Code criminalises “grave sexual abuse”, an act of sexual gratification by the use of one’s genitals or any other part of one’s or another’s body or any instrument or any orifice, which does not amount to rape under Section 363, and is done without the consent of the other person, with the consent of the person obtained coercively or when the other person was of unsound mind or intoxicated. Punishment is prescribed as rigorous imprisonment up to 20 years and compensation as determined by court to the injured person. Where the abuse is committed against any person below 18 years of age the punishment shall be rigorous imprisonment between 7 and 20 years. 515 5.7 Hate crimes (both state sanctioned and state excused) In Bangladesh and India there have been increasing incidents of acid attacks on women. The frequency of the incidents led to the enactment of the Acid-Offences Prevention Act, 2002 516 in Bangladesh with a view to “make provisions to prevent acid-offences strictly.” The Act imposes severe penalties, including the death penalty or rigorous life imprisonment with a fine of one lakh rupees for causing death by throwing acid or bodily injury where, “his/her sight or ear is damaged fully or partly or face or breast or sexual organ is disfigured or damaged.” 517 For bodily injury where a joint/member of the body is disfigured, damaged or injured, a minimum punishment of seven years that may extend to and a fine of 50,000 taka is prescribed. 518 Punishments for throwing or attempting to throw acid even where there is no injury are prescribed and persons abetting any of these offences are punishable to the same extent. 519 515 Section 365B, Penal Code, 1883 (Sri Lanka) 516 Act II of 2002. The English version of this statute available to the authors is an unofficial translation obtained from the website of the Asia Pacific Forum on Women, Law and Development (APWLD) at http://www.apwld.org/pdf/acidoffences2002.pdf. The unofficial translation was cross- checked with local lawyers in Bangladesh who noted that the translation was missing the complete Section 5(b) which reads as follows: “Any part or joint of his/her body is disfigured or damaged or injured, he shall be punished with, imprisonment for either description that may extend to fourteen years but not less than seven years of rigorous imprisonment and in addition he will also be punished with fine not exceeding 50 thousand taka.” 517 Section 5, Acid-Offences Prevention Act, 2002 (Bangladesh) 518 Ibid. 519 Sections 6 and 7, ibid. 116
The fined amount is to be given to the survivor or successor as the case may be. 520 Fines can be realised by selling or auctioning any movable or immovable property of the convict. 521 There are strict provisions regarding investigations including timelines for investigation and for legal action for negligent investigations. 522 Bail is possible in very limited circumstances and strict timelines are imposed also for the trial with daily hearings and completion within 90 days. 523 Where an accused person is absconding trial may also be possible ex-parte with certain conditions. 524 Bangladesh also passed the Acid Control Act, 2002 to regulate the sale and use of acid by requiring businesses selling acid to obtain a licence and provide treatment for acid victims, rehabilitate them and provide legal assistance. This law sets up a National Acid Control Council with district committees and establishes a Fund to provide treatment to victims. 525 However, a verified English translation of this law was not available for the purposes of this report. Several cases related to acid-throwing have made their way into Indian courts. An ongoing matter in the Supreme Court has drawn considerable attention with the court coming down heavily on the government for its lack of action and also suggesting the enactment of laws similar to those in Bangladesh. 526 A judgment is awaited in this case. In State of Karnataka by Jalahalli Police Station v. Joseph Rodrigues 527 the Karnataka High Court dealt with a case of acid attack where both sides appealed against the punishment imposed by a lower court, the accused seeking to mitigate the sentence and the State seeking to enhance it. In discussing the nature of the offence, the court held that the fact that pouring a large quantity of acid on a person’s head is likely to cause death must have been known to the accused or must be inferred and the offence would fall under the category of attempt to murder. Discussing acid attacks, the court stated, “Even otherwise, the Court cannot shut its eyes to obnoxious growing tendency of young persons like accused resorting to use corrosive substances like acid for throwing on girls, causing not only severe physical damage but also mental trauma to young girls. In most of the cases the victim dies because of severe burns or even septicemia or even if luckily survives, it will only be a grotesque disfigured person, who even if survive lives with mangled flesh, hideous zombie like appearance and often blind if acid is splashed on face and suffer a fate worse than death.” 520 Section 9, ibid. 521 Section 10, ibid. 522 Sections 11 and 13, ibid. 523 Sections 15 and 16, ibid. 524 Section 18, ibid. 525 ‘Combating Acid Violence and Rape’, Law and Our Rights – The Daily Star, Issue No: 35, 1 September 2007, available at http://www.thedailystar.net/law/2007/09/01/index.htm 526 ‘Acid attacks on women: India to learn from Bangladesh,’ Thaindian News, 28 April 2008, available at http://www.thaindian.com/newsportal/uncategorized/acid-attacks-on-women-india-to-learn-frombangladesh_10042926.html and ‘Apex court initiates move to regulate acid sales’, Thaindian News, 30 October 2009, available at http://www.thaindian.com/newsportal/uncategorized/apex-court-initiates-move-to-regulateacid-sales_100267934.html 527 MANU/KA/8317/2006 117
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THE INTERNATIONAL COUNCIL ON HUMAN
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6. ACCESS TO HEALTH SERVICES IN REL
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ABBREVIATIONS AIDS ART ARV CEDAW CE
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in the regional reviews. This is a
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provide for information and distrib
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B. METHODOLOGY In keeping with the
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elevant and key laws and judgments;
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The inability of many sexually stig
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Equality irrespective of a person
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The centrality of women’s rights
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social standing, religious belief,
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according to the physical condition
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Constitutional Court in The Nationa
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protections or statutory law. There
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However it also noted that every Ri
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concerned with declaring that the h
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without guaranteeing the personal p
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to enlarge the meaning and content
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a concept has wider dimensions than
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Such conduct mentioned in clauses (
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embraced the complainant and asked
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does not sever the ties between the
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The potential recognition of same-s
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Similarly, seeking out sex educatio
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condom). Across such laws, the defi
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jurisdictions. Nepal, a country wit
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the conviction of the accused for s
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with an unmarried woman is not puni
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physical characteristics (virginity
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interventions and safeguards such a
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The opinion of the National Commiss
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was married to she would acquire im
Page 65 and 66: to consider the case of a woman see
Page 67 and 68: oth parties and deems all marital p
Page 69 and 70: female who has not attained 12 year
Page 71 and 72: Article 16 of the Universal Declara
Page 73 and 74: In Bangladesh, polygamy is allowed
Page 75 and 76: immovable property. The above propo
Page 77 and 78: consummation of marriage. The incap
Page 79 and 80: Violence, especially sexual violenc
Page 81 and 82: gender norms which many remand home
Page 83 and 84: female or a female to a male. It in
Page 85 and 86: from other forms of inequality as w
Page 87 and 88: c. Whereas victims of violence in h
Page 89 and 90: courts. 350 According to the Commis
Page 91 and 92: The Act provides for the appointmen
Page 93 and 94: Rani 383 it was held that a shared
Page 95 and 96: The Act specifies imprisonment of 6
Page 97 and 98: property jointly or separately held
Page 99 and 100: upees or the amount of the dowry wh
Page 101 and 102: however, is that, of the 10,000 dea
Page 103 and 104: Addararachchi 439 the court conside
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Page 107 and 108: doer’s sexual desire by using doe
Page 109 and 110: In holding that there was no justif
Page 111 and 112: coerce or induce female inmates to
Page 113 and 114: material or detain any person for t
Page 115: consensual sexual activity with you
Page 119 and 120: the State and its citizens is one o
Page 121 and 122: every person “the right against e
Page 123 and 124: The law also includes the right of
Page 125 and 126: eing committed. 570 While prosecuti
Page 127 and 128: Broader provisions related to child
Page 129 and 130: in order to engage the child in suc
Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
Page 135 and 136: Indonesia’s Constitution recognis
Page 137 and 138: In Thailand too, abortion is illega
Page 139 and 140: With regard to the first question,
Page 141 and 142: Further, any pregnant woman may vol
Page 143 and 144: childbearing age to establish a hea
Page 145 and 146: Government could not be held liable
Page 147 and 148: among those in the reproductive age
Page 149 and 150: Members' right to protect public he
Page 151 and 152: 7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154: education as well as non-discrimina
Page 155 and 156: The exchange of information through
Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161 and 162: Sections 292, 292A, 293 and 294 of
Page 163 and 164: “...any interpretation of 'obscen
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In Thailand, places of entertainmen
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8. SEX WORK This section examines h
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The use of raids, and exemptions fr
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clients or make an offer for a sex/
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and non-rehabilitative juvenile jus
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“In view of the aforesaid proposi
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person who commits the act are of t
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as parent or guardian has given his
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with one) on the charge that it was
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for sex workers while emphasizing t
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19. Azimuddin v State of Uttar Prad
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1. Acid Control Act, 2002 2. Acid-O
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13. Intellectual Property Act, 2003
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