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NO MEANS NO: PROTECTION AGAINST SEXUAL EXPLOITATION AGAINST WOMEN- JUDICIAL APPROACH

Updated: Feb 20, 2022

Written by - Meghana killampalli


“If all men are born free, how is it that all women are born slaves?”[i]

Says Mary Astel


Over the decades, the oriental tradition of India preaches “MAATRU DEVO BHAVA” which simply means worship the mother, and women should be honored with such great reverence just like a goddess. Throughout ancient literature, females received importance and were considered a goddess. The dominance of males took over gradually during the time of Rig Veda as customs and values were made by men to favor men. Women on the other hand suffered discrimination silently. The men started to assert dominance over females, and the sexual perversities were the cause of such dominance. Women were certainly considered inferior to men due to the sexual vulnerability of the female. The stereotype of “a weak and helpless woman” is fostered to ensure complete dependence on the male sex.[ii] The same image of the superiority of men was then seen in the culture of the material world.

According to World Health Organization, Sexual exploitation means Actual or attempted abuse of a position of vulnerability, power, or trust, for sexual purposes, including, but not limited to, profiting monetarily, socially, or politically from the sexual exploitation of another.[iii]

Sexual and moral exploitation has many reasons, and the media in Indian contemporary culture are most much exposing them, and many of them remain unexplored. Although violence against women, sexual abuse, and women's exploitation has not recently come, it is still found in ancient India's culture. We can found the roots in our ancient mythological Vedic literature of Mahabharata and Ramayana which are considered holy books of Hindu culture.

In Mahabharata, Draupadi is exploited by Duryodhana sexually in the Kaurava Kingdom. Draupadi is assaulted in the forest by Jayadrath and is left unpunished by the Pandavas because he is a familiar member and in Virat’s kingdom, Draupadi is abused by Kichaka.[iv]

In Ramayanam, Rama is uncertain of his wife's loyalty after having been separated from Sita during her abduction by Ravana for several years. Sita actively undergoes a fierceness or fire trial to confirm that she was virtuous. Which represents her vulnerable exploitation of her sexuality.[v] Initial facets of female exploitation were witnessed through Devdasi, Widow Burning known as sati, Polygamy.[vi]

The Sexual Exploitation of women continued and took a new shape over the last half-century which in turn saw a dramatic change. Rape which was once business-as-usual during the conflict now has been officially prosecuted as a crime[vii] against humanity throughout the world. Rape is regarded as a heinous crime that is a disgrace to humanity as well as society at large.


SEXUAL EXPLOITATION AGAINST WOMEN

The reality, knowledge about it is mostly in the shadows, is the fact of incidences such as abuses by close relatives, co-habitation with close or loved partners, and resulting in declining relationships and illegitimate pregnancy problems, etc. Moreover, teachers molested girls, and anti-social activists repeated sexual harassment is an unfortunate fact. Women are often easily exploited in the form of physical and mental torture against women by husbands, most of whom are merely a woman of the house and do not have a career. As a result, they are unable to keep their heads unambiguously tolerant of their husband's violence. In the end, they are emotionally disturbed and frequently sheltered by suicide or other forms of abuse which are very disgraceful of psychological, spiritual, ethical, and after all economic support. Such key aspects of such exploitation can be emphasized as follows: Women's use to earn money, Trafficking in women, Physical and emotional abuse by men in society, and violence against women such as rape.[viii] Low self-esteem leads sexually exploited women to believe their only worth is in what they can offer men.[ix]


STAGES OF WOMEN SEXUAL EXPLOITATION AGAINST WOMEN THROUGH THEIR LIFE CYCLE

Discrimination toward women has grown increasingly under rising consumption and a legitimate human rights problem has gained momentum in the context of its socio-economic stability. Woman's trafficking is associated with the economic inequality in the world that leads to widespread women's production in prostitution.[x] A significant proportion of them who are not associated with prostitution are compelled to face harassment and teasing at different times at different places in the form of Rape, Kidnapping, Dowry, Sexual harassment, trafficking, etc.[xi]

Women's childhood stage: women are subjected to child exploitation and forced prostitution trafficking for lucrative business throughout the whole world for work and sex.

The puberty of women: at adolescence, they are forced into prostitution, slavery, early marriage, abuse against women, etc. that a pitiable type of abuse or exploitation is observed. This is a time in which they mature, recognize the social and economic relationship, and are coerced to choose prostitution or to be unwittingly exploited for sex. This tyranny is a fact. Even psychiatric illness occurs between them. Young women or girls are often exploited by sex and appearance to appease many gangsters.

Women's reproductive stage: They risk domestic abuse at reproductive age if they are married. Also, at this time, the intimate partner or non-partner often verbally, emotionally, and physically exploits them. Homicide, therefore, is popular in common newspapers in the world. It is very common. Owing to a lack of workability or sexual appeal, she is vulnerable at the time of the elderly. They are then ignored and exploited again. So we can say that women's life history is astigmatic and miserable garland.

Women’s elderly stage: Resulting in a lack of workability or sexual appeal, she is helpless when elderly people are old. They are then neglected and abused again. Forced "suicide" or murder of widows because of economic reasons; women of this age usually suffer sexual, physical, and psychological violence.


FORMS OF SEXUAL EXPLOITATION AGAINST WOMEN

According to UNICEF “Every 10 minutes, somewhere in the world, an adolescent girl dies as a result of violence and nearly one in five girls is sexually abused at least once in her life.[xii]

There are different forms and types of exploitation of women. Which covers sexual assault offenses for a commercial benefit such as prostitution and trafficking, adultery, abduction, rape, unlawful imprisonment and murder, etc…

According to the World Health Organization (WHO) Acts of Sexual Exploitation includes the following: Sexual assault, Demanding sex in any context or making sex a condition for assistance, Forcing sex or someone to have sex with anyone, Forcing a person to engage in prostitution or pornography, Unwanted touching of a sexual nature, and Refusing to use safe sex practices.[xiii]

· Sexual harassment At the workplace

Gender equity requires safeguards from sexual harassment and the right to work with dignity which is accepted widely as a fundamental human right. The Apex court held that in case of sexual harassment of women at workplaces then the content of international conventions and norms are used for the purpose to interpret Articles 14, 15, 19 (1)(g) and 21 to safeguard women[xiv] and also formulated guidelines for this purpose.

· Rape

· Domestic violence

· Sexual assault

· Dating violence

· Human trafficking

· Sexual coercion

· Prostitution


PROTECTION AGAINST SEXUAL EXPLOITATION IN INDIA

Half of the population in India are women. From time memorial women have always been discriminated against in silence[xv] and exploited in all ways.

To tackle this unending problem of sexual exploitation against women throughout her lifetime, the legislation through Acts, fundamental rights and provisions are protecting sexual exploitation of any kind.

· Constitutional provision

The constitution of India, as we already know provides the right to equality[xvi] and the state does not discriminate on the ground of sex[xvii] and also in favor of women under Article 15 (3) the state shall make any special provision.

The Right to an adequate means of livelihood is also provided by the constitutional provisions to women under Article 39(a). The weaker sections of the society are protected from all forms of exploitation[xviii] and are given the right against exploitation.

The supreme court has elucidated the Right to women's dignity under Article 21 of the constitution. Even a prostitute has a right to privacy under Article 21 and no person can rape her just because she is a woman of easy virtue.[xix] In Budhadev Karmaskar v. State of West Bengal[xx] the court observed the need to provide a life of dignity to the sex workers in our country by giving them some technical skills through which they can earn their livelihood instead of by selling their bodies.

And under the Fundamental duties, The Indian constitution makes it a point and duty of every citizen “to promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women” (Article 51(A)(e)).

In the case of Vishal jeet v. Union of India[xxi], the court held that there should be certain measures that should take place to eradicate this evil of forced prostitution as it affects the maligning of the society and destroys all the moral values and remains as a running sore in the body of the civilization.

· Indian Penal Code and The Criminal Law (Amendment) Act, 1983 Latest Amendment of Criminal Law (2013)

To maintain the goal of constitutional mandate and end sexual exploitation against women the state made much women-specific legislation and one of them is the Crimes identified under the Indian Penal Code.

Under section 375 Rape has been defined and under section 376 the punishment is also prescribed. Rape is one of the fastest-growing crimes[xxii] in India. Rape occurs in India every twenty minutes.[xxiii] To make the section more stringed several amendments have been had to this section from time to time.

Kidnapping & Abduction for different purposes were provided in the Indian Penal Code from Sec. 363-373. Such as kidnapping or abducting any women who maybe be compelled or likely to be compelled for marriage and seduced to illicit intercourse or forced to exploit her.[xxiv] Even procuration of a minor girl is an offense under Section 366-A, importing her to a foreign country Section 366-B.

Section 67 protects any person who is subjected to grievous hurt, slavery, or unnatural lust of any person through kidnapping, even wrongful concealing or confinement as an offense under 368.

Trafficking of a person[xxv] is an offense on various grounds one of which is for exploitation. And the exploitation of such trafficked person in any manner is punished for imprisonment for a term not less than five years or which may extend to seven years also fine for minor and imprisonment for not less than three years to which may extend to five years and also fine for non-minors both under 370-A. Selling minors for purposes of prostitution is punished under section 372 and buying of such minors is punished under section 373.

Torture, both mental and physical under Section 498-A of IPC is to protect the weaker spouse and further sexual exploitation of any manner by husband is so intolerable and so miserable that it takes a woman to a pinnacle of dying her own life.[xxvi]

Molestation against any woman is an offense under Section 354 IPC and Section 354- A. Sexual harassment is defined and even punishment for such sexual harassment against women is said to have rigorous imprisonment of a year or which may extend to three years and fine or both.[xxvii]

Unwanted and explicit sexual advances; or demand or ask for sexual favors; exposing a woman to pornography against her will, or make sexually colored comments. All of the above come under the purview of sexual harassment. Even when any man watches or captures the image of women engaged in a private act and the private act includes the victim’s genitals, posterior or breasts, or any sexual act which is ordinarily not done in public sexually exploiting her position of vulnerability is punished under section 354C Voyeurism for not less a one year and which may extend to three years and liable for fine or both. But for knowingly any person engages in sexual exploitation in any way is punished for not less than three years and which may extend to five years and shall also be liable to fine or both.[xxviii]

Even when the modesty of a woman is insulted such a victim is protected under Sec. 509 of IPC. Many amendments were done to Section 375 of the various sexual assault that women are subject to in the country. The Supreme Court described sexual harassment explicitly to include "such unpleasant sexual conduct as physical contact and advancement (whether directly or by implication); a sexual favor application; sexual crime, atrocities, and violence against women 179 colored remarks; pornography displaying; any other unwelcome sexual, verbal or nonverbal behavior".[xxix]The Court stressed that Article 141 of the Constitution should recognize this as a statute. That said, sexual exploitation in our country is increasingly needed as a distinct legal offense with the right sanctions.

· Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

This Act was formulated by the legislative act in India that seeks to protect women from any kind of sexual harassment at the workplace[xxx], it was essentially derived from the vishaka guidelines after the landmark case of vishaka and others v. State of Rajasthan[xxxi]. The successful implementation of this Act involves the development not only of an atmosphere in which women can speak out without fear about complaints, but also awareness-raising of women at work.

· The Protection of Women from Domestic Violence Act, 2005

This act defines Domestic violence and sexual abuse comes under the scope of the act and commission or omission or conduct of the respondent will constituting domestic violence. Also defines sexual abuse as “includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.”[xxxii]

· Immoral Traffic (Prevention) Act, 1956

This act makes trafficking and sexual exploitation of persons for commercial purposes a punishable offense. It tackles both the supply and demand side of trafficking. Both commercial purpose and sexual exploitation are not defined under the act and they are open for the judiciary for open interpretation.[xxxiii]

Special initiatives for women in India

· National Commission for Women :

On 31 January 1992, the National Women's Commission was established to exercise powers and review current legislation to propose changes where appropriate.[xxxiv]

· National Policy for the Empowerment of Women (2001)

To progress, create, and encourage women in all walks of life by the establishment of a judicial and legal structure that is more open to women and maintains a gender perspective. The strengthening and formation at international, regional, and sub-regional levels of related institutional structures and the exercise of international obligations and agreements and cooperation was another undertaking.

· The Protection of Women from Domestic Violence Act, 2005

It provides for a more comprehensive defense of the rights of women who are the victim of any abuse within the family and for matters related to them or incidental to them, provided by the Constitution. In cases of abuse in the household, it provides urgent and emergency assistance to mothers.

· Justice Verma Committee Report, 2013

The government received a report in January 2013 from a three-member Commission chaired by former Chief Justice of India J.S. Verma who was given the task of reviewing legislation on sexual offenses. To deal with crimes and abuses against women, the Commission has proposed substantive modifications to criminal laws as needed.[xxxv]

The report consisted of punishment for rape and other sexual offenses, registering complaints and medical examination, marriages to be registered, amendments to code of criminal procedure, bill of rights for women life of dignity and security and sexual autonomy, police reforms, and urging judiciary to take suo-moto cognizance of such issues, and curb the illegal trade of trafficking and many others.


INTERNATIONAL PROTECTION OF WOMEN AGAINST SEXUAL EXPLOITATION

The UN is committed to the philosophy of individual and human freedom, which means equality of dignity and value as human beings and equality of rights, opportunities, and duties. Through their work for women, the whole UN framework has worked to ensure universal acceptance of equal treatment between men and women in law and to explore ways of giving women equal opportunities with men in reality to realize their human rights and basic freedoms.[xxxvi]

· UN charter in 1945

The achievements of the UN in the field of women’s rights regarding sexual exploitation is the Adoption of the Convention for the Suppression of the Traffic in Persons and Exploitation of Prostitutes and Others by the General Assembly in 1949.

· Universal Declaration on Human Rights, 1948

The following Articles under the Universal Declaration on Human Rights protect against sexual exploitation against women; No one shall be held in slavery or servitude[xxxvii], No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment[xxxviii].

· Convention on the Elimination of All Forms of Discrimination against Women, 1979

Through the convention, States Parties have undertaken all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of the prostitution of women[xxxix].

· The Declaration on the Elimination of Violence against Women, 1993

The following provisions are available under The Declaration on the Elimination of Violence against Women, 1993: family-based violence, including physical, sexual, and psychological harassment of female children within a household, domestic violence related to dowry, marriage violence, female genital mutilation, and other common female harmful activities, non-spousal violence, and exploitation violence. The general population involves physical, sexual, and psychological brutality, including kidnapping, sexual assault, sexual exploitation and coercion, traffickers, and prostitution.

· Beijing Conference: Fourth World Conference on Women-1995

At the Beijing International Conference Centre, on 4-15 September 1995, the Fourth World Conference on Women assembled. In several key fields, a few of these areas are violence against women, poverty on women and women's Human Rights, the 4th International Conference on Women Strategic Action. When we discuss women's poverty, it was noted that poverty would also cause women to be vulnerable to sexual exploitation.

The government's actions were to foster economic opportunities and equitable access to productive opportunities for women and to respond to women's basic social, educational, and health needs, especially those living in poverty. Develop policies and programs to encourage fair household food delivery. Provide access for women living in poverty for free or low-cost legal care, including legal literacy.

Ensuring universally accessible prevention treatment for sexually transmitted illnesses, including HIV/AIDS, to all partners and patients through the primary health care system. to make sure high-quality contraceptives and medicines are used to treat sexually transmitted diseases.

Design programs and policies in any educational institution, workplace, and other area for the elimination of sexual harassment and other forms of abuse against women. Laws prohibiting sexism on grounds of sex in jobs were adopted and implemented.


AUTHOR’S VIEW AND CONCLUSIONS

After analyzing the various aspects of issues relating to women it should be concluded that even after all the human rights, fundamental rights, legislations, and various acts the sexual exploitation against women is not seen decreasing. The existing legislations are not sufficient/ adequate to overcome the problem. It should be noted that the attitude of society needs to be changed. Although on paper we have many protections for women, on a reality basis women are treated poorly and exploited almost.

The author believes that an increase in literacy and employment among women will have a positive impact. There is a need to create awareness among women about sexual exploitation as most of them are not aware of their rights to protection. More studies should be done to explain the many causes and effects of sexual abuse. Easy complaint process should be maintained. It is highly beneficial to allow the Complaints Committee to review suo-motu sexual exploitation activities in all organizations and also include women's NGOs within those committees so that institutional interference is prevented and their reports are implemented in the case of sexual exploitation. It is obligatory, through education reforms in the school curriculum, organization of social consciousness camps, development and development of State machinery to prevent sexual assault in the workplace, to modify people's mindset. This is necessary. It is not enough to create legislation, it is more necessary to raise awareness of it and its proper enforcement.



Endnotes.

[i]Patricia Springborg, Mary Astell: Political Writings (Cambridge University Press, Cambridge,1996). [ii] Thara R, “A Study of Disabled Women” (SCARF, 1997-1998). A study of mentally ill disabled women who have been separated/divorced. [iii] World Health Organization, available at https://www.who.int/about/ethics ( last visited on April 6, 2021). [iv] Available at: https://economictimes.indiatimes.com/et-commentary/metoo-in-mahabharata-political-needs-were-placed-over-draupadis-security/ ( last visited on April 6,2021). [v]Hess, Linda, “Rejecting Sita: Indian Responses to the Ideal Man's Cruel Treatment of His Ideal Wife.” vol. 67, no.1, Journal of the American Academy of Religion (1999) available at www.jstor.org/stable/1466031 (last visited on April 5, 2021). [vi] Manikamma Nagindrappa, Radhika M.K, “Women Exploitation in Indian modern society “ 3 International Journal of Scientific and Research Publications 2 (2013). [vii]Sexual Abuse and Exploitation of Women in Violent Conflict, Amsterdam. Available at: http://heinonline.org.elibrarydsnlu.remotexs.in/HOL/Page?public=true&handle=hein.peggy/sebusewe0001&div=10&start_page=1&collection=peggy&set_as_cursor=1&men_tab=srchresults ( last visited on April 6, 2021). [viii] Dr. Khokan Kumar Bag, Piyal Basu Roy, “Changing Face of Women Exploitation” 1 International Journal of Social Science Tomorrow 1 ISSN: 2277-6168 (2012). [ix]Melissa Farley, “Risks of Prostitution: When the Person Is the Product” 3 Journal of the Association for Consumer Research 1, available at https://doi.org/10.1086/695670 (last visited on April 6, 2021). [x]Barry, K., The prostitution of sexuality (NY University Press, New York, 1995). [xi]Id. at 8. [xii] Jaimee Swift and Hannah Gould, “Not An Object: On Sexualization and Exploitation Of Women and Girls” available at https://www.unicefusa.org/stories/not-object-sexualization-and-exploitation-women-and-girls/30366 ( last visited on April 6, 2021). [xiii] Available at: https://www.who.int/about/ethics ( last visited on April 6,2021). [xiv]Vishaka v. the State of Rajasthan, (1997) 6 SCC 241. [xv]Madhu Kishwar v. State of Bihar, (1996) 5 SCC 145. [xvi] The Constitution of India, art. 14. [xvii] The Constitution of India, art. 15(1). [xviii] The Constitution of India, art. 46. [xix]State of Maharashtra v. Madhukar N. Mardikar, (1991) 1 SCC 57. [xx] 2012 Cri LJ 316. [xxi]Vishal jeet v. Union of India, (1990) 3 SCC 318. [xxii]Behere PB, Mulmule AN, Sexual abuse in women and anti-rape bill: Lesson to learn from success and failure Health Agenda, 27–30 (2013) [xxiii]Behere PB, Mulmule AN, Sexual abuse in children: Where are we heading? JMGIMS, 6–11 (2013). [xxiv]The Indian Penal Code, 1860 (Act 45 of 1860), s.366. [xxv] The Indian Penal Code, 1860 (Act 45 of 1860), s. 370, 370-A substituted for s. 370, by Act of 2013. [xxvi] The Indian Penal Code, 1860 (Act 45 of 1860), s. 498-A. [xxvii] The Indian Penal Code, 1860 (Act 45 of 1860), s. 354-A. [xxviii] The Indian Penal Code, 1860 (Act 45 of 1860), s. 354C. [xxix] The Indian Penal Code, 1860 (Act 45 of 1860), s. 354. [xxx] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, s. 2(o). [xxxi] Id. at 3. [xxxii] Section 3 of the Act [xxxiii] Available at : http://www.indiatogether.org/immoral-laws#:~:text=The%20Immoral%20Traffic%20(Prevention)%20Act%2C%201956%20%5B2%5D,commercial%20purpose%20a%20punishable%20offence.&text=Third%20it%20defines%20the%20term,increases%20penalties%20for%20some%20offences( last visited on April 6,2021). [xxxiv] Available at http://www.indg.in/social-sector/women-and-child-development/1the-national-commission-forwomen.pdf( last visited on April 6, 2021). [xxxv] Available at : http://www.ndtv.com/article/cheat-sheet/recommendations-of-the-justice-verma-committee-10-pointcheat-sheet-321734( last visited on April 6,2021). [xxxvi] United Nations, New York, 1984, p.148 [xxxvii] Universal Declaration on Human Rights, 1948, art.4. [xxxviii]Universal Declaration on Human Rights, 1948, art.5. [xxxix] Convention on the Elimination of All Forms of Discrimination against Women, 1979, art. 6.

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