VANDANA SHUKLA IN THE TRIBUNE CHANDIGARH
The rhetoric on remedies of rape moves in circles – from capital punishment for rape to financial compensation to the victims to out of court ‘settlements’ to getting the victim married with the culprit. The woman’s need for dignity of course takes the back seat.
Despite an uninterrupted discourse on the subject over the past several decades, governments and society are yet to evolve a cast-iron system to deal with the crime and the criminals.
From the year (1971) the National Crime Record Bureau (NCRB) began collecting data on rape cases, it has shown an eight-fold increase. In 2008 over 21 thousand complaints were recorded in the country with various agencies conceding that over 80 per cent of the cases never get reported. Incest has shown a 30 per cent increase— these are disturbing social trends, which need to be researched and addressed. This stands in marked contrast to the other serious and violent crimes like murder, robbery, dacoity, kidnapping and rioting.
The NCRB has also concluded that only one in 69 rape cases get reported and only 20 per cent of the reported cases result in convictions.
Cash compensation ?
Compensation for rape is not a new idea. Courts have ordered for compensation to be paid under provisions contained in the statutes. Several state governments too have found it convenient to pay sums depending upon the extent of the public outrage and media exposure. But this is the first time the Ministry of Women and Child Welfare has launched a country-wide scheme and has offered to reimburse the state governments the cost they incur in its implementation.
But compensation — call it restorative justice or whatever —is tricky.
It is instructive to recall the experience with Prevention of Atrocities Act 1989 ( for SC and ST). Tribal and dalit victims of rape, were required to produce a certificate of their tribal/dalit status for receiving a compensation of Rs 25,000.
Getting the certificate in itself became a profit making proposition for brokers. Poverty also induced many to file false cases, thus defeating the well-meaning provision, points out Pratiksha Baxi from JNU.
The law also appears to assume unfortunately that standards of dignity are different for a woman from a well- off family and for a dalit woman. So, a dalit woman’s compensation money for rape can be shared by the rapist under the Act.
The compensation is paid if the victim belongs to either a Scheduled Caste or a Scheduled Tribe and the rapist does not. The law does not specify what happens if the woman is from a Scheduled Tribe and the man is from a Scheduled Caste or vice versa. Even before the Act was passed in 1989, since 1978 in UP women from SC and ST were paid compensation of Rs 5000 for rape.
The website of the Department of Social Justice and Empowerment, Govt of Gujarat, lays down that for outraging the modesty of a woman under section 3(1) (11) the Government pays a compensation of Rs 50,000, but in case the accused marries the rape victim, the ‘assistance’ ( here it is not termed as compensation) of Rs 50,000 is disbursed in the joint names of the couple.
It does not require great imagination to understand how these laws end up as bait for attracting more abuse for women. The website does not offer any data on how many women actually received the compensation or assistance!
Compensation, obviously, can be paid only after the charge is established in court, which is a tall order in itself. Strangely, the scheme is sought to be justified by the need to help the victim financially so that she can fight it out in court. How this contradiction gets resolved , remains to be seen.
A study conducted by MARG in Uttar Pradesh throws up more questions.
Of the 33 registered victims or their family members the researchers spoke to, they found 13 victims were minors, 2 were six years old, one was between four and five years of age. One was 12 years old, others less than 14 years of age.
But in only four cases did the medical report confirm rape. Of the 13 minor victims, only one minor’s rape was confirmed. Two girls had the noting ‘no opinion’ and of the rest there was no medical record with the police. Yet, the compensation was ‘liberally’ sanctioned.
Although the police had no ‘medical examination report’ in their record, compensation was still sanctioned in as many as 28 cases, including nine in which there was no finding of rape. In one case the rapist and victim belonged to the same caste, hence the case was withdrawn!
The money, in case of minor victims, was received by the parents. Only two women spent Rs 2000 out of the received money to hire a lawyer.
Of the 13 minors, only four could attend school while most victims relocated to escape the stigma attached to rape. Their humiliation was compounded by the CM of U P, Mayawati , who had ordered the money to be delivered by the Director General of Police in person. He was also asked to take a helicopter and fly to various places for the purpose.
On the one hand rape cases are held in camera, on the other hand this display of ‘help’ discourages victims to report rape. The compensation, as and when paid, is often grabbed by the rest of the family, and makes the police indifferent and even more reluctant to pursue the cases. The attitude is, since the money has already been paid, why fuss over prosecution ?
In most countries, policies and laws are framed based on research based findings. But there are very few studies on the subject funded by the Government.
A few studies, mostly done by individuals who feel strongly about the issue, are however eye openers. Social activist Flavia Agnes’ study was based on observations drawn from her own legal practice and judgements involving rape cases; while Pratiksha Baxi’s ( Assistant Professor, Centre for Law and Governance, JNU, Delhi) study was based on what goes on inside the court rooms, where a 12- year- old is also asked sexually explicit questions a lawyer may hesitate putting to a 30- year-old.
Even after the much talked about Mathura case, which led to the amendment of Evidence Act in 1983, which allowed the woman’s word to be trusted for her non-consent, there has been no monitoring of judgements.
From 1860 to 2002, the colonial law based on the moral history of the woman was in application while looking at a rape victim, which meant that a woman’s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, not much has changed in courtrooms.
A Google search for kanoon.com and rape cases will throw up several judgements, which are deeply patriarchal and explain why conviction rates are so abysmally low.
Doctors are surprised if the victim cooperates with them on examination (a victim is supposed to go stone-silent, weep and should have injury marks), policemen’s wives cannot complain of being raped by husbands ( because it is a husband’s right) and while the defence tries to prove that the victim is a consenting adult because anyone over 16 is thought to have given consent, judges worry about marital prospects of victims ( many rapists thus get lighter sentences when
they agree to marry their victims). Incest of course hardly ever gets reported because of the family’s insistence on silence.
Marry the rapist
Sakshi, an NGO, had released a study called ‘Gender and Judges’, in which it analysed the views of 119 judges from all over India, along with experiences of female lawyers, complainants and observations on court room trials.
Most judges found it impossible to believe that men could perpetrate the crime without any element of consent or provocation. ‘Judges were of the view that penetration of a woman is physically impossible without her ‘consent’ and that in any case women are ‘partially to blame for such abuse.’
Another ludicrous idea often encouraged by the judiciary is that of compromise. Whenever witnesses turn hostile, victims are advised to accept a compromise, which the court witnesses, but is unable and unwilling to act upon.
The court thus ‘restores’ her chastity in the public eye. Fortunately, the courts are prohibited from compounding a rape case. Being a non-compoundable offence, compromise in rape cases has been confined to the bargains between community elders, victims’ kin, local authorities and the police, with judges looking the other way for the most part.
Women are often subjugated by men in power. In the Ruchika Girhotra molestation case, the protector, an IG, Haryana Police, S P Rathore became the tormentor. After 19 years, 40 adjournments, and more than 400 hearings, the court finally pronounced him guilty under Section 354 and gave him six months imprisonment.
In case of Anjana Mishra, it was the Advocate General of Orissa, Indrajit Roy, who attempted to rape her when she went to seek his help for getting custody of her children in 1998. Since she dared to report the case, she was gang-raped by three men, to teach her a ‘lesson.’ Roy was given anticipatory bail but was never arrested due to his political clout. Under public pressure when he finally resigned, his junior was made AG, putting Anjana in her place.
It is reminiscent of Bhanwri Devi’s case, a Sathin volunteer in Rajasthan, when she tried to stop a child marriage in 1992, she was gang raped by five men, including Ramkaran Gujjar, whose daughter’s marriage she had tried to stop. The male doctor at the primary health centre refused to conduct medical examination and at a Jaipur hospital the doctor certified only her age. Subjected to sustained humiliation, she was asked by the policemen to leave her lehenga as an evidence of rape. Bhanwri’s case inspired Visakha case, which brought about legislation against sexual exploitation of women at work place but Bhanwri could not get justice in a caste -ridden system.
Society must change first
I enacted the role of a rape victim in three films; Bawandar, Pitah and Laal Salaam. So, I can claim to have some idea of what a woman goes through in a situation like gang- rape. While shooting the gang-rape scene for Bawandar, I saw some members of the crew nudging each other with suppressed and suggestive giggles, and I screamed. It was something I never do. But I felt violated. This was just an enactment, after all. I could immediately empathise with what an actual victim has to go through.
It is sad the way we treat this kind of abuse of women—with total disregard for the feelings of a woman. The society has to change—this is not something outside us, they come from within us. We need to shame the perpetrators, we need to talk more and more—in the open about these issues because, as we know, a rapist gets caught usually after a number of successful or unsuccessful attempts. What makes the rapist so daring is the silence of the women.
As far as monetary compensation is concerned, it finds justification in offering help to the victim to fight her case legally, which is often long-drawn. Otherwise it becomes like the flesh-trade. One must understand that the person is scarred for the rest of her life, simply because we have shrouded a crime under such weight of shame for so long that we do not want to deal with it.
What’s wrong if state takes responsibility?
There was a time when, after the Bhawnri Devi case, women’s groups demanded compensation, because Bhawnri was raped in the course of carrying out her duties as a government functionary, albeit an informal one (she was paid not as an employee but as a volunteer, something that enables the govt. to pay less than the minimum wage); therefore she was entitled to compensation. She was eventually given compensation but she did not use it, it created more problems for her— the community started saying rape was an excuse for taking money… so there is that element also. But if the state takes responsibility, then that can’t be altogether a bad thing
Rape, a widespread crime against women, shows little signs of abating. The unbearable trauma that a rape victim has to bear is further compounded by the insensitive laws and the “couldn’t care less” attitude of the law-enforcing machinery. Until rapists are dealt with severely, the offence will continue to breed and grow.
Shree Venkatram in THE TRIBUNE
Rape is one of the most heinous crimes, impacting the victim for life. Given its enormity, it should be considered next only to murder. Sadly, it has not been given the attention it needs by social scientists, law makers and justice dispensers. When two Class IX boys attempt to rape a Class I girl, as in a Bathinda school recently, it is time society introspected. What kind of signals are we sending out to our young?
The National Crime Records Bureau had termed rape “India’s fastest growing crime”. We have complete figures for 2009, when according to the NCRB, a total of 21,397 rape incidents were reported countrywide. Add to this, 25,741 cases of kidnapping and abduction of women and 38,711 cases of molestation, and you get 235 reported cases of molestation/rape/ abduction of women every day. These are just the reported cases. Most, especially molestation and rape cases, go unreported in the name of guarding ‘family honour’.
Convoluted sense of justice
Let us examine some recent sentences proclaimed by our justice dispensers and the messages these have sent out to society. A few months ago the Supreme Court decided to let off three farmers, who had been convicted of gang raping a woman in Ludhiana district. A sessions court had awarded a 10-year imprisonment to them. The Punjab and Haryana High Court had upheld their conviction, following which, the criminals appealed to the Supreme Court. Their sentence was cut short after a few years under a “compromise formula” that entailed paying Rs 50,000 each to the victim.
The rapists had appealed to be let off as “they and the victim were happily married to their spouses” and “wanted to live peacefully”. The fact that the victim is “happily married” is no credit to the rapists. Did the judges ascertain the happiness quotient of the criminals’ marriages? Did they speak to their wives? Men who rape, make for draconian and violent husbands. As far as “wanting to live peacefully is concerned”, it is easy to say that after committing a violent crime. The fact that they can indulge in rape makes them dangerous criminals. If they could do that to one woman, they can inflict themselves on another. How does the court ensure that this does not happen? The National Council for Women has asked for a review of the case for it sets a bad precedence of reaching a compromise in rape cases, where conviction rates are extremely low anyway.
Wrong signals embolden rapists
It is not surprising that such a judgement should come from our highest court. The former Chief Justice of India, K G Balakrishnan, is reported to have said that society and the state must respect the decision of a rape victim if she chooses to marry the rapist. His words as reported by a newspaper: “Due regard must be given to their personal autonomy since in some cases victims may choose to marry the perpetrator.” Imagine the trauma of a woman having to spend her life with a man who has raped her? It is like inflicting a lifelong sentence of mental and physical cruelty on her, while the man goes scot free. And then, what would prevent the rapist from marrying the victim to escape punishment and then deserting her? This kind of a mindset furthers the warped view society holds that marriage is the be all and end all for a woman. And that it is better to marry a man who has raped you than not marry at all!
Now look at the punishment a panchayat in Ghaziabad meted out to an rapist uncle: It ruled that five smacks with a shoe was enough punishment for raping his niece. In another case, also in Ghaziabad, a five-year-old was raped by her 19-year-old cousin. But the family chose to keep quiet, not even getting medical attention for the little girl.
She was sent to school the next day where she complained of abdominal pain and died. It was only then that the parents approached the police. The girl’s mother said she had raised an alarm when she saw the cousin raping the child. The family elders had caught him, slapped him and let him off. Consider now how these family elders and panchayats handle youngsters who marry outside their caste group or marry within their own gotra. The punishment has ranged from social ostracism to even death! Obviously, rape is considered a minor crime compared to violation of caste and kinship lines.
Compounding victims’ trauma
The law as it stands today is weak and archaic. Apart from woefully inadequate sentences, it only recognises vaginal rape and does not believe that children below 12 can be raped. Women’s groups have been demanding its amendment but though decades have passed, the bill is still in a draft stage.
The Aruna Shanbaug case illustrates the complete warpedness of our justice system. While Aruna, the nurse who was raped and maimed for life has been lying in a hospital bed for the last 37 years, the rapist, ward boy Sohanlal Walmiki, is a free man today. He is said to have changed his name, moved to Delhi with his family where he works in a hospital. He was imprisoned for only seven years for attacking her and stealing her jewellery, but not for rape as it was anal and not vaginal rape he indulged in as Aruna was menstruating at that time. What kind of justice is this?
The death penalty awarded to rapist and murderer Santosh Kumar Singh was commuted to a life sentence because of what is termed as “mitigating circumstances”. Among them were that he was “young, just 24 years old” at the time of his crime. At 24 years, one is an adult! The fact that he was “married” and “the father of a girl child” were the other “mitigating” factors. Now, how does this help either the wife or the daughter? They have to fend for themselves anyway and live with the knowledge of having a rapist and murderer as a husband and father for the rest of their lives. In fact, the law should give the wife and children of a rapist the choice to walk off from the relationship with no legal binding on their part, while retaining all their rights on the family property. If the wife has the option of being legally freed of the relationship, she can think of starting her life again. It is extremely traumatic for a young girl to grow up knowing her father is a rapist. In fact, such men are best kept away from their daughters.
We have also had judgments where the sentence was commuted when the rapist passed a civil services exam. What is the message that went out? That if you pass the exam, all will be forgiven and you will occupy an important government post. In fact, the opposite should be the case. Convicted rapists who have served their term in jail should be debarred from holding a government job.
Need for unorthodox methods
The law must acknowledge that rape mars a person for life. The condition has been recognised as Rape Trauma Syndrome where the victim suffers from phobias and nightmares and feels emotionally crippled, unable to form meaningful relationships and friendships for life.
Kamini Lau, Delhi’s additional sessions judge, recently called for a public debate on “chemical and surgical castration” of child rapists and serial offenders as an alternative punishment. She said this while delivering a sentence for a man who raped his minor step daughter for four years.
Chemical castration is being used in parts of United States and many European countries, with the rapist’s consent. Sweden, France and Germany are among them. In Poland it is mandatory. A province in Argentina is the latest to adopt it. It involves an injection of an anti-pregnancy drug every three months to lower libido and uncontrolled sexual impulses. There is much evidence in the medical and psychiatric world that a rapist cannot be cured unless there is a medical intervention. It is time to act. There can be no compromises with a rapist.
The writer works in the development sector
26 NOVEMBER 2010
The National Crime Records Bureau (NCRB) data shows that cases of sexual offences against children have been on the rise. From 2265 cases in 2001, the number has increased to 5749 in 2008. A Study on Child Abuse undertaken by the Ministry of Women and Child Development in 2007: INDIA 2007, conducted in thirteen States, with a sample size of 12447 children, 2324 young adults and 2449 stakeholders has also revealed that out of 12,447 children interviewed, more than fifty-three percent reported having faced one or more forms of sexual abuse. Over Fifty percent abusers were persons known to the child or in a position of trust and responsibility. Major findings of the study are:
i. 53.22% children reported having faced one or more forms of sexual abuse.
ii. Andhra Pradesh, Assam, Bihar and Delhi reported the highest percentage of sexual abuse among both boys and girls.
iii. 21.90% child respondents reported facing severe forms of sexual abuse and 50.76% other forms of sexual abuse.
iv. Out of the child respondents, 5.69% reported being sexually assaulted.
v. Children on street, children at work and children in institutional care reported the highest incidence of sexual assault.
vi. 50% abuses were by persons known to the child or in a position of trust and responsibility.
vii. Most children did not report the matter to anyone.
The Government proposes to bring a new law to protect children against sexual offences of various types. The draft Bill on Protection of Children from Sexual Offences which has been prepared, regards the best interests and well being of the child as of paramount importance at every stage of the judicial process. It incorporates child friendly procedures for reporting, recording, investigating and trial of offences. The Bill aims to protect the child’s right to privacy and confidentiality; provides for designation of Special Courts for trial of offences and stringent punishment to provide adequate deterrence, while at the same time ensuring adequate penalty commensurate to the gravity of each offence.
The draft Bill on Protection of Children from Sexual Offences is at the stage of inter-ministerial consultation and will be introduced after these are completed and after seeking the approval of the competent authority. Smt. Krishna Tirath, Ministry of State (Independent Charge) for Women and Child Development, gave this information in the Lok Sabha today.
(Release ID :67656)
- Media can’t report on sexual assault on children without consent (indialawyers.wordpress.com)