This report is being written by Shaista Aziz and Nazakat
Introduction;
Every welfare state is duty bound to come to the rescue of an oppressed class by the enactment of social welfare legislations or legislations aiming at positive discrimination. During ancient times, the laws at place were not sufficient enough to fully protect the rights and interests of women folk. However, with the advancement of society, this gender was also recognized and accepted as equally important and for their protection various laws were enacted but soon were those welfare legislations misused by some chronic and wicked accusers who impose allegations on some innocent persons for material, emotional or social gains.
Such laws aiming at maintaining balance and equality in the society may be misused by any person against any other person. However, most of the cases of such nature are filed by a woman against a man but that does not mean, allegations are not levied against a woman under the grab of protection provided by such laws.
Impact of false accusation of sexual violence
The issue of intensity of false accusation and allegations of sexual assault may be regarded as the major controversial dispute which affects the phenomenon of retaliation for violence against women. On account of the presumption of Law, every Accused is deemed to be innocent until the offence is proved against him but the reaction of society in such cases is that, without giving heed to the legal process of proving the offence and having faith in Judicial system, people start victimizing such person and treat him with hatred and humiliation which unfortunately makes his mixing in the society difficult, affects his employment his personal life and hence hurdles his rehabilitation.
The result of this accusation is that it has got tremendous devastating and destructive impact on the Accused even when the allegations do not lead to criminal sanctions vitally because once the person is accused of this offence, he is deemed to be convicted even before his guilt is proved in the court of law.
Role of media.
Media plays an important role whenever someone is accused of any sexual violence related case, which ultimately worsens the trauma and humiliation. Media has the potential to highlight any issue and to circulate it in such a way that the person(s) involved in such issue becomes known to everyone and when the person so involved is accused of an offence, it puts his/her emotional, mental, physical wellbeing at stake within no time.
Whenever any person is accused of any such offence, media uses its potential to put the accused in non-judicial trial by circulating his pictures and amplifies the audacity of the problem meanwhile without considering its pros and cons as a result of which it becomes very difficult for him to reestablish his damaged reputation.
For this reason mainly, most of the accusation are falsely levied so that the Accuser may on one side, attain attention, publication or any other material gains and on other side the Accused may be humiliated and that he/she may suffer losses of whatever nature.
Causes of false accusation.
False accusation of sexual violence is reporting of the offence of sexual violence when no violence has taken place, the causes of false accusation falls broadly into two main categories;
False memories: Which may occur because of and is not limited to, recovered memory therapy, memory conformity and victims confusion; or,
Lies: The person claiming to be a victim may implicate any person alleged of an offence into false accusation of sexual violence to satisfy her personal grudges and may have several other motivations for such allegations.
An accuser may have following motivations behind such false allegations;
- Revenge: The accuser may do so with the aim to damage the reputation, finances and freedom of the alleged accused.
- Material gain: It may be done with the aim of obtaining material benefits, professional promotion or to receive money.
- Attention: The Accuser may sometimes do so with the aim of receiving attention of any kind.
- Producing an alibi: This allegation may sometimes be used to cover up any other behavior like being late or absent to an appointment.
- Sympathy: It may be done by the Accuser for the purpose of seeking special kind of attention so as to improve a personal relationship with an individual.
- Relabeling: Sometimes the consensual sex is relabeled as Rape either because of family pressure or because of its shameful character and hence the false complaint.
- Regret: It may so happen that sometimes after a consensual sex, because of shame or negative feelings, the Accuser either willfully or because of pressure of others may file a complaint against the alleged Accused.
Scenario in Asia:
The problem of false accusation of sexual violence is prevalent everywhere but considering Asia, it can be said that the feminist or #MeToo moment has tremendously gathered the gravity and has been misused in such a manner that men usually avoid mixing with women for fear of false accusations.
In Asian countries marriage is considered as pious and is usually related to religion. However, marriages are another social aspect of such allegations. First the allegations hit the domestic life of person, his/her spouse is the worst effected and the relationship takes a serious beating Like, With the rise of Feminism in China, #Metoo moment gathered importance but this moment was soon misused by the Accusers. The first #Metoo case in China which may be regarded as one of the most important cases in Chinese history was that of Ms. Wang who accused her former boss for sexually harassing her. But the outcome of this trial was that, at the end, it was Ms. Wang who was required to defend herself.
Though the stringent laws have been enacted so as to prevent crime against women but a dishonorable trend of filing false cases is prevalent in Asia, rendering the laws dealing with the protection of women and aiming at gender justice as a tool of manipulation. Hence the definition of Feminism has in fact become fascism.
The devastating impact of this new trend of false accusation is that it weakens the legitimate object of Feminism. The women who file false and frivolous cases get support of such groups who actually help the women genuinely victimized. Since it’s usually a woman who files such a false and frivolous case against a woman or a man and thereby compromises the object of achieving the equality and mutual comprehension between genders, sought to be achieved by such groups and hence it delegitimizes the efforts of Feminism altogether.
For instance A shocking statistics has been presented by the Delhi commission of women which shows that 53.2% of the rape cases between 2013 to 2014 in Delhi were false.. The fact that the cases so filed with the police authorities are half true and half false brings into light the fact that the rectification of the society has materialized changes in that aspect.
Current situation
The innocent Accused are gaining some conscious and becoming somewhat aware about the possible way outs and hence we can see few cases of defamation against accusers or those involved in their humiliation however, the idea of defamation lawsuits is yet to be discovered fully as there is very less awareness about it and even if some people are aware about it, they dare not to file such law suits for fear of tough procedure of proving ones innocence in such cases.
Hence, it can be said that though there are accusers ready to misuse the feminist moment, #Metoo moment or any other moment that actually aims at bringing about the gender equality, the innocent accused persons are gathering courage to challenge such allegations and prove the truth.
Scheme of law
When we look at the laws and the punishments related to sexual offences, we realize that very strict law has been kept in place and very stringent punishment provided for the same but while framing those laws, no regard has been given to the fact that if such a law gets misused what will be the way out.
No direct law dealing with the offence of false accusation of sexual violence has been passed by any country in Asia but the shield can be taken under the umbrella of provisions dealing with defamation.
For instance, the Defamation law in India which provides a remedy to the innocent Accusers runs as follows:
In case of filing any false complaint or presentation of a false evidence so as to prosecute an innocent person or if any such intention exists, following charges can be framed against the Accuser in India under Indian Penal Code:
Section182: False information with intent to cause public servant to use
His lawful power to the injury of another person;
Whoever gives to any public servant any information which he knows or believes to be false, intending there by to cause, or knowing it to be likely that he will thereby cause, such public servant-
(a)To do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b)To use the lawful power of such public servant to the injury or annoyance of any person, Shall be punished with imprisonment of either description for a term Which may extend to six months, or with fine which may extend to one Thousand rupees, or with both.
Hence, if a person has provided any Information to the police which is false and has deliberately Provided to the police in order to trigger wrongful proceedings on to the Other person out of vengeance so as to cause mental harassment to the said person, he shall be dealt with by mandating a punitive quantum which may extend to 6 months.
Section186: Obstructing public servant in discharge of public functions
Whoever voluntarily obstructs any public servant in the discharge of his
Public functions shall be punished with imprisonment of either
Description for a term which may extend to three months, or with fine
Which may extend to five hundred rupees, or with both.
Section191: Giving false evidence.
Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Section192: Fabricating false evidence.
Whoever causes any circumstance to exist or makes any false entry in
Any book or record, or makes any document containing a false statement, Intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by Law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said “to fabricate false evidence”.
Section193: Punishment for false evidence
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and Shall also be liable to fine, and whoever intentionally gives or fabricates False evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
Section195: Giving or fabricating false evidence with intent to procure
Conviction of offence punishable with imprisonment for life or
Imprisonment Whoever gives or fabricates false evidence intending thereby to cause, or Knowing it to be likely that he will thereby cause, any person to be Convicted of an offence which by the law for the time being in force in India is not capital, but punishable with imprisonment for life, or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished.
Section196: Using evidence known to be false.
Whoever corruptly uses or attempts to use as true or genuine evidence
Any evidence which he knows to be false or fabricated shall be punished in the same manner as if he gave or fabricated false evidence.
Section199: False statement made in declaration which is by law receivable as evidence.
Whoever, in any declaration made or subscribed by him, which Declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any Statement which is false, and which he either knows or believes to be False or does not believe to be true, touching any point material to the Object for which the declaration is made or used, shall be punished in the Same manner as if he gave false evidence.
Section200: Using as true such declaration knowing it to be false.
Whoever corruptly uses or attempts to use as true any such declaration, Knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.
Section211: False charge of offence made with intent to injure.
Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely Charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
And if such criminal proceeding be instituted on a false charge of an
Offence punishable with death, imprisonment for life, or imprisonment for Seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be Liable to fine.
Section 340 of Code of Criminal Procedure,
The law States that there are two conditions subject to which a complaint can be filed against a person who has given false affidavit or false evidence in a Proceeding before a court.
Firstly, the person has given false affidavit in a Proceeding before the court and,
Secondly, in the opinion of the court, it is expedient in the interest of justice to make, an enquiry against such a Person in relation to the offence committed by him.
Furthermore, a notice is issued to certain police officers under this section for an enquiry to determine if false evidence was fabricating record and Putting up a false case. Besides, the person may also be charged with the civil liability of wasting the time of police.
Likewise, the law directly dealing with false accusations of sexual violence has not yet been enacted in China and the remedies are sought under the Defamation Laws. However, the Chinese defamation law is not specifically spelled out as such, but has been developed from Articles 101 and 102 of the General Principles of the Civil Law (enacted in 1987), and several subsequent supporting documents: the Supreme People’s Court’s Answers to Certain Issues Concerning Trials of Cases Involving the Right to Reputation (released in 1993), Understanding an Application of the 1993 Answers, Interpretation of Certain Issues Concerning Trials of Cases Involving the Right to Reputation (released in 1998), and Understanding and Application of the 1998 Interpretation.
As explained in the 1993 Answers, defamation exists if
- The defendant has committed an illegal act,
- The plaintiff’s reputation has been damaged, and
- The illegal act caused the damage.
Such defamation exists in three circumstances:
- Written or oral insults or libel that damages a person’s reputation;
- Unauthorized disclosure of personal information that damages a person’s reputation; or
- A news report containing “gross error” that damages a person’s reputation.
In Understanding and Application of the 1993 Answers, the SPC clarified that truth was NOT a defense to defamation. If a work insults and damages a person’s reputation, it is defamatory regardless of whether it is true.
The 1993 Answers state that either the allegedly defamed person or their close relatives (defined as spouses, parents, children, siblings, grandparents, and grandchildren) have standing to sue. That rules out almost anyone alive from 1950 onward as a character that can be included without fear of liability.
Similar is the case with other Asian countries where Defamation laws are resorted to in case of false accusations of sexual violence. Hence it can be said that there is dire need for the Asian countries to come forward and enact direct laws in order to fully protect the basic human rights of wronged persons.
Modus operandi
Be it a man or women, dignity is something which is precious to everybody and if a person falsely accuses another person of any sexual offence, his victimization is going to prove humungous. Usually the responses to alleged sexual offences becomes erroneous in the absence of witnesses when the court has to rely entirely on the statement of complainant and corroborative forensic evidences which Is largely impacted by the prevailing cultural discourse and preconceptions about sexual predators and their victims.
Furthermore, the value to be attributed to the statement of alleged Accused will be lesser than the value and importance attributed to the statement of supposed victim even in cases where the evidence only consist of testimony from the alleged victim and is strongly rebutted by the alleged perpetrator, the moral imperative not to let down another victim or to leave a possible sex offender free to cause further harm may be compelling (Webster, 1998; 2005). Though evidence and conduct does provide a light on the correct state of affairs but the problem arises when the act that was initially consensual but was purported to be non-consensual.
Conclusion
When we look back at history, we see every possible reason for enactment of such laws that provide for positive discrimination and for the emergence of the movements like feminism, #MeToo movement, formation of women’s commission and the like.
But by and by not only does a woman misused this law against a man but there are some cases where it has been misused also against a woman and hence this is the law that has been used for gross violation of the basic human rights in general and the right to dignity, life, health and prosperity in particular.
Laws which are there, for easy access to women can easily be misused, for some of the notorious women do not resist the temptation of teaching a lesson to the male members for some personal motives and hence file false and frivolous cases against a man and the same trend is observed in anti-dowry law which is being misused to such an extent that it has been termed as legal terrorism.
There are plethora of cases where man are falsely implicated under women centric laws which lead to public humiliation, torture and extortion and what magnifies this suffering is the delayed proceedings.
Therefore, there is dire need of speedier remedies in such cases with the system of checks and balances to be introduced so as to prevent misuse of such laws and this is the right time for the government of all the countries to introduce suitable amendments to such laws so as to prevent its misuse and safeguard the rights and interest of innocent accused persons. Hence need of the hour is to have such a balanced system where women are protected and men are not unnecessarily harassed.