LAW RESOURCE INDIA

Review of Rape Law

Posted in CRIME AGAINST WOMEN, RIGHT TO LIFE, VIOLENCE AGAINST WOMEN by NNLRJ INDIA on July 21, 2012
Dignity is her birthright

Dignity is her birthright

NATIONAL LAW RESEARCH DESK

The Union Cabinet today approved the proposal for introduction of the Criminal Law (Amendment ) Bill, 2012 in the Parliament.

The Law Commission of India in its 172nd Report on `Review of Rape Laws` as well the National Commission for Women have recommended for stringent punishment for the offence of rape. The High Powered Committee (HPC) constituted under the Chairmanship of Union Home Secretary examined the recommendations of Law Commission, NCW and suggestions various quarters on the subject submitted its Report along with the draft Criminal Law (Amendment) Bill, 2011 and recommended to the Government for its enactment. The draft was further examined in consultation with the Ministry of Women and Child Development and the Ministry of Law & Justice and the draft Criminal Law (Amendment) Bill, 2012 was prepared.

The highlights of the Bill include substituting sections 375, 376, 376A and 376B by replacing the existing sections 375, 376, 376A, 376B, 376C and 376D of the Indian Penal Code,1860, replacing the word `rape’ wherever it occurs by the words `sexual assault`, to make the offence of sexual assault gender neutral, and also widening the scope of the offence sexual assault.

The punishment for sexual assault will be for a minimum of seven years which may extend to imprisonment for life and also fine for aggravated sexual assault, i.e., by a police officer within his jurisdiction or a public servant / manager or person talking advantage of his position of authority etc. The punishment will be rigorous imprisonment which shall not be less than ten years which may extend to life imprisonment and also fine.

The age of consent has been raised from 16 years to 18 years in sexual assault. However, it is proposed that the sexual intercourse by a man with own wife being under sixteen years of age is not sexual assault. Provision for enhancement of punishment under sections 354 and 509 of IPC and insertion of sections 326A and 326B in the IPC for making acid attack a specific offence have been made.

RAPE LAWS RECOMMENDATION NCW

172LAW COMMISSION REPORT ON REVIEW OF RAPE LAW

Dignity is her birthright

Posted in CHILD ABUSE, COMPENSATION, CRIME AGAINST WOMEN, VIOLENCE AGAINST WOMEN by NNLRJ INDIA on March 24, 2012
Dignity is her birthright

Dignity is her birthright

JUSTICE PRABHA SRIDEVAN IN THE HINDU

The state should not forget the human rights perspective while dealing with a victim of sexual violence. It should not doubly, trebly victimise her.

Women do not walk in a state of perpetual consent. But women do seem to labour under a delusion that it is safe for them to walk in public spaces, to travel in buses and trains. It obviously is not. They can be raped. It is difficult to understand rape. Rape is not about chastity or virginity. Long before these concepts were constructed, long before the institution of marriage was founded, a man raped a woman whenever he broke her sexual autonomy without her saying “yes.” It is a violation of her right to equality and her right to live with dignity which “We” promised ourselves when we gave to ourselves the Constitution. Surely women are included in the “We” of the Preamble, aren’t they?

Rape is the destruction of dignity through invasion of another person’s body without her consent. I use the word “her”, though the victim of this violence can be a child, a woman or a man. The anatomy of rape is common to all. But I will continue to use the pronoun “her”, since the majority of victims of sexual violence are female. Rape is a deliberate negation of the right over one’s body.

This right is born with us. It does not require a development of maturity or the consciousness of one’s body to acquire the right. So a girl child who is raped when she is 11 months old does not suffer less, nor is the crime less dark and bloody because the child does not know that she has the right not to be invaded. The consent that is required to make the sexual act not a rape must be understood as an active assent to the act. The consent cannot be presumed merely because a woman does not say “no”. She might not have said “no” because she was paralysed by fear, manacled by coercion or pounded by force. She might not have said no, because she was mentally damaged, incapable of making a decision in this regard; she might have been an infant, or disabled from moving because of physical incapacity. Yet it is rape. Only it is blacker if there is such a colour. It is the invasion of a woman who cannot say no.

Act of subjugation

It strips the victim of her dignity, it is intended to. It is an exertion of power, an act of subjugation, a statement that divests the victim of her right of control over herself and renders her an object. It is meant to objectify her. The dilution of the horror, by using words like “he lost control” is unjustified and is an insult to a woman. The violator does not lose control, but exerts control through the act of unspeakable violence.

In the Prosecutor v. Jean Paul Akayesu, the International Tribunal held that rape is a form of aggression, the central elements of which cannot be captured in a mechanical description of objects and body parts. It noted “the cultural sensitivities involved in public discussion of intimate matters and recalled the painful reluctance and inability of witnesses to disclose graphic anatomical details of the sexual violence they endured.” It was intended to reconstitute the law’s perception of women’s experience of sexual violence.

In a sensitisation programme for judicial officers, an exercise was given which would give a clue to the rape complainant’s feelings in court. All judicial officers were asked to close their eyes and imagine the experience of their first union with their loved one. Then they were asked to narrate it to the colleague sitting on their right. They were horrified at this intrusion of their privacy. Then the trainers asked them: “If you cannot narrate a pleasant sexual experience to a friend without inhibition, how do you expect a frightened woman in a strange court hall to narrate fluently, in the presence of a battery of hostile lawyers, her devastating experience of sexual violence?” The officers had no answer.

But what is the reality? She is broken by having to repeat the incidence of rape again and again. “Madam, what was he wearing at the time of the occurrence? Did his tee shirt have a collar or no?” Oh yes, she can surely recall in vivid freeze-frames of “the occurrence.” And who will save her if she falters just once in the witness box? “See your Honour, the accused was wearing a blue striped chaddy, but she says red … totally unreliable, Your Honour.” The Supreme Court has given strict guidelines on how her evidence should be weighed, and how her complaint should be assessed.

But a poor child who does not know an Ambassador from a Fiat was disbelieved by the trial court, until the Supreme Court came down with all its majesty to the rescue of the child and noted that the prosecutrix was a village girl studying in class 10 and her ignorance of the car brand, was irrelevant (State of Punjab v Gurmit Singh 1996 (2) SCC 384.)

‘Distinct concepts’

In the Amnesty International publication, “Rape and sexual violence — human rights law and standards in international courts,” we read how the human rights perspective must never be forgotten while dealing with sexual violence.

Sexual autonomy cannot be understood outside the umbrella of human rights. Its violation must be criminalised. The report says, “Unfortunately, however, sexual autonomy is frequently conflated with narrow views of ‘consent’ under domestic criminal law which do not capture the reality of how acts of rape and sexual violence are committed … Sexual autonomy and consent are two distinct concepts. The concept of ‘consent’ as used in domestic criminal law imports a notion of individual choice, typically without a consideration of the reality of abuse of power (whether evidenced through physical force, or other forms of coercion) and other factual conditions that may prevail before, during and perhaps after the sexual acts in question. A consideration of whether an individual was able to exercise sexual autonomy, by contrast, takes into account the overall dynamic and environment surrounding those sexual acts and how these had an impact on the victim’s ability to make a genuine choice.”

A woman who is raped goes through a variety of feelings like denial, self-hate, grief, degradation, suicidal impulse and more. She falters in her narration, oh yes, she does, but not because she is a liar, but because the act of rape not only inflicts physical harm but also incalculable emotional and psychological harm. Chemical changes take place in her brain because of the trauma. She may go into a fantasy that someone will rescue her from this nightmare. Post-rape, she lives in a smoke world of truth and untruth, denial and depression, nothing is the same any more. She is screaming on the inside “please, please put the clock back.” This is just a short, incomplete statement of what is happening on the inside.

What is happening on the outside? The whole family is devastated, it even looks at her as if she somehow brought it on herself. “Why did you go there?,” “I told you not to wear that” and so on. So the woman wonders if the first enemy is the family. It is not in every case that the woman actually lodges a complaint, because she and her family know what will follow the complaint is worse. It is hell. It is not necessary to give the details of the experience on the way to the police station and inside the precincts thereof. The world looks at her as if she carries a stain on her all the time. She may never be allowed to forget the occurrence. So will a woman lie that she was raped?

The Amnesty International report reminds us that women and girls are not “likely to make false accusations of rape and sexual violence. This is a particularly irrational stereotype as women and girl complainants usually have very little to gain and everything to lose by making allegations of rape, there is rarely an incentive for them to lie; many complainants pursue their search for truth and justice at enormous cost to themselves, in terms of stigma and rejection by their families and communities.”

In this harsh reality, society and especially the state and courts must remember that they shall not doubly and trebly victimise her, nor raise a cacophony of distrust. It will only silence the voices against this horror.

(The writer is a former judge of the Madras High Court and Chairman of the Intellectual Property Appellate Board.)

SOURCE:Dignity is her birthright

Rape & Remedy

Rape - A henious Crime

Rape - A henious Crime

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!

Other obstacles

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 ?

Little research

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.

Laws inadequate

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.

Power game

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

Nandita Das

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?

Urvashi Butalia

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

http://www.tribuneindia.com/2011/20110918/edit.htm#1

Rape – Violence most foul

Posted in SEXUAL OFFENCES, VICTIM COMPENSATION, VICTIMS by NNLRJ INDIA on September 3, 2011

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

http://www.tribuneindia.com/2011/20110902/edit.htm#6

Court’s rider and relief for rape victims

By Naziya Alvi in New Delhi IN MAIL TODAY

A DAY AFTER five rape cases were reported within a span of 48 hours in the Capital, the ministry of women and child development came up with a scheme to compensate the victims by providing them financial assistance up to ` 3 lakh.The scheme was announced after the Delhi High Court rapped the central and the state governments for the delay in setting up a compensation scheme for rape victims. The court ordered the implementation of the scheme within the next six weeks.

Under the scheme, if a rape case is prima facie made out, the victim will receive an interim financial assistance of ` 20, 000 within 15 days. After giving due consideration to the physical injury and emotional trauma faced by the victim, she will be provided with further financial aid up to ` 50,000.

However, in view of the rampant trend of rape victims turning hostile or going missing after lodging the FIR, the major chunk of the compensation amount— ` 1.30 lakh — will be handed over to the victim only after she makes the final deposition before the court.

The scheme has fixed the compensation amount for victims at ` 2 lakh, but can it be enhanced up to ` 3 lakh if the victim is a minor, differently- abled, mentally challenged or in any other case where the designated authority finds it necessary.

The scheme, prepared with the assistance of NGOs, lawyers and activists, aims at providing psychological, medical and legal assistance to the affected woman. It also has the provision to provide counselling support to the victim, including her spouse if the affected woman is married.

Depending upon their needs, the victims will also be provided various support services such as educational and vocational training so as to help them overcome the trauma and lead an independent life.

A Criminal Injuries Relief and Rehabilitation Board will be set up at the district, state and national level for the implementation of the scheme. The announcement of the scheme on Wednesday evoked mixed responses from social activists, lawyers and academicians.

“ I think it will lead to so much ugliness. My concern is that the government promises a lot but its delivery mechanism is so poor that everything becomes either a farce or a source of corruption,” social activist Madhu Kishwar said.

“ What a woman needs more than anything else is swift, speedy and dignified judicial process and a police station that works lawfully. What is most worrisome is how they will ensure that the compensation reaches the victim,” she added.

“ The Supreme Court, while pronouncing the judgment in the Delhi Domestic Workers Association case in the early 90s, had directed the government to formulate a similar scheme.

They should have ideally done it within a year. The fact that they have not done it till date shows the intent and prioritisation of the government and the bureaucrats towards women’s issues,” Meenakshi Lekhi, a Delhibased advocate, said.

Yasmeen Abrar, chairperson of the National Commission for Women, said she was happy that the government finally came up with such a scheme. “ However, we feel that ` 2 lakh is not a sufficient amount and should be increased to at least ` 5 lakh,” Abrar said. But for some, the scheme is just an eyewash. “ Compensation is meaningless so long as the guilty are not punished.

Rape is not an accident where a money claim will heal the wounds,” a rape victim said.

INTERIM ASSISTANCE

20,000 will be given to the victim in the event a rape case is prima facie made out. The district board shall order the assistance as far as possible within 15 days and, in any case, not later than 3 weeks from the date of receipt of the application ` 50,000 is the maximum amount the victim will receive as further aid after giving due consideration to the physical injury and emotional trauma faced by her

FINAL ASSISTANCE

1.3 lakh will be given to the victim as final assistance within one month from the date on which the victim gives her evidence in the criminal trial or within one year from the date of receipt of the application in cases where the recording of evidence has been unduly delayed for reasons beyond her control

ENHANCEMENT OF AID IN SPECIAL CASES

3 lakh is the enhanced compensation an affected woman will be entitled to if she

  • is a minor
  • is mentally challenged or differently abled
  • is infected with STD, including HIV/ AIDS as a consequence of rape
  • gets pregnant
  • in case of severe physical and mental ailments
  • any other ground as may be deemed fit by the board

WHEN CAN THE BOARD REJECT THE CLAIM?

  • Avictim’s claim can be rejected under the following circumstances
  • she fails to inform, without delay, the police or any other appropriate authority about the incident
  • she fails to give reasonable assistance to the board in connection with the application
  • the FIR is filed so late that it is difficult to verify the facts of the case
  • she turns hostile during the trial
  • the case appears to be collusive in nature
  • bona fides of the victim are suspect, such as in a case involving solicitation, and not based on verifiable facts
  • case is of elopement of girls above 16 years of age

WHO MAY APPLY AND BY WHEN?

An application for financial assistance and support services has to be filed within 60 days from the date of recording of the FIR either by the victim or by any person/ organisation/ department/ commission on her behalf, with the application duly signed by her

WHERE THE AFFECTED WOMAN IS:

A minor: By her parent/ guardian . Mentally ill or is mentally challenged: By the person with whom she normally resides or a duly authorised medical officer of the institution

ON THE DEATH OF THE AFFECTED WOMAN:

by her legal heir( s) . Where the application is filed after 60 days, the board may condone such delay where it is satisfied with the reasons for the same.

http://epaper.mailtoday.in/epaperhome.aspx?issue=772011

Judges, judgments and women’s rights

KALPANA SHARMA

When it comes to women’s issues and the law, the courts continue to send contradictory signals…

As much as police officers, doctors also need to be taught a rape survivor’s rights.

Two courts. Two judgments. Two attitudes. In the contrast lies the story of what Indian women continue to face when they turn to the law.

On October 21, the Supreme Court, in the context of a case before it, held that a woman in a “live-in relationship” could not claim maintenance in the event of abandonment by the man as such a relationship could not pass as a “relationship in the nature of marriage” as described under the law for arrangements outside formal marriage. The Court held that if the woman was a “keep” of the man, who looked after her financially but “uses mainly for sexual purpose and/or as a servant”, then such a woman was exempted from claiming any benefits of maintenance under the Protection of Women Against Domestic Violence Act 2005 on grounds of abandonment. The ruling led to a justifiable outburst by India’s first woman Additional Solicitor General Indira Jaisingh, who also happens to be one of the main movers of the Domestic Violence Act. Ms. Jaisingh ticked off the judges for using a term like “keep” which she held was derogatory to women and was “male chauvinistic”.

Wrong precedent?

Ms. Jaisingh’s statements in court made it to the front pages of most newspapers. But one wonders how many will pause and think about why she felt she had to raise her voice at the use of such a term in the judgment. It was, as she herself emphasised, because the ruling of the Supreme Court sets a tone and a precedent for future judgments that affect women. One of its judgments in what is called the Vishakha case is even today used as the standard for judging all matters relating to sexual harassment in the absence of a specific law. By using a term like “keep”, you disregard and virtually excuse the responsibility of the man in an arrangement in which two people are involved and where one, the woman, is most likely the more vulnerable. Once this becomes the precedent, any man can go to court and challenge the right of a woman with whom he has a relationship outside marriage, and who demands compensation when abandoned, by claiming that she was merely his “keep”. Therefore, Ms. Jaisingh’s intervention needs to be appreciated, as also her courage for speaking out in the highest court of the land where some others might have felt intimidated.Apart from the Vishakha judgment, the Supreme Court has also passed several orders that make it clear that in a rape case, the woman’s character will not be part of the proceedings during the trial and that it is immaterial to the case. This is also an important precedent in the context of women’s rights. Yet, as is evident from another judgment, in another court in Delhi, the practice continues.

Pronouncing judgment in a rape case on October 23, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called the “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise her in court.When a woman reports rape, she has to go to the police who then send her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to sexual intercourse” by inserting two fingers inside her vagina. Why is this of any relevance to a case where the facts of rape and sexual assault are being determined? Does this mean married women cannot be raped? Does it mean an unmarried woman who has had sex cannot be raped? What does this absurd test actually establish when the woman’s character, or sexual habits, are of no consequence in the matter before the court?

It is heartening to read of at least one judge who was incensed enough to speak out against this test. Judge Lau said, “The test is violative of the fundamental right to privacy of the victim.” She went on to say, “State action cannot be a threat to the constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of sexual offences (even minors) by doctors.”

The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to be taught a survivor’s rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”, the “finger test” remains standard practice in many parts of India including Mumbai and Delhi. In fact, in Mumbai, three leading government hospitals, where hundreds of rape survivors are examined each year, still use this test. The HRW report also reveals that outdated medical textbooks recommending this test are still being used. As a result, each succeeding generation of doctors continue to follow the practice without thinking twice about its relevance or the trauma they are causing the rape survivor.

Intimidating practice

Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor’s testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to the police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor. Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unless something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are sexually assaulted will continue to hesitate before turning to the law.

Email the writer: sharma.kalpana@yahoo.com

Source: http://www.hindu.com/mag/2010/10/31/stories/2010103150090300.htm

For Indian Rape Laws, Change Is Slow to Come

Posted in COURTS, CRIME AGAINST WOMEN, SEXUAL OFFENCES, SUPREME COURT, TRAFFICKING, VICTIMS by NNLRJ INDIA on September 22, 2010
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By NILANJANA ROY  IN THE NEW YORK TIMES  SEPTEMBER 21,2010

NEW DELHI — Should a woman’s sexual experience and history be introduced as evidence in the trial of her accused rapist? Will the Indian legal system ever recognize forced sex between husband and wife as rape? What constitutes the “modesty” of a 10-year-old girl?

A recent report by Human Rights Watch examining the common practice in India of subjecting unmarried women who say they have been raped to what the law calls a “finger test” has reopened a series of questions about the country’s laws governing sexual violence. The report, compiled by Aruna Kashyap, a women’s rights researcher, called for an end to the test, which as the name suggests, involves inserting fingers into the woman to measure “vaginal laxity” and thereby ascertain whether she was “habituated to sex” before the alleged assault.

Although there has been no official response to the report, its findings have provoked widespread outrage in India and elsewhere, with many agreeing that the test is an archaic and scientifically unsupported practice that could exacerbate the trauma of the victim.

In the same week the report was released, less noticed but telling were the routine police reports filed around the country of alleged crimes under Section 354 of the Indian Penal Code, which makes “outraging the modesty of a woman” a criminal offense. One of the cases that came to trial concerned a teacher who had “outraged the modesty” of a 10-year-old in his care. The euphemism effectively veiled the impact of what had really happened — three separate incidents of sexual assault on a child.

In a country where legal reform has been progressive in many spheres, and where the judiciary has often taken an active role in protecting human rights, the slow pace of change in the rape laws is evidence of a larger cultural silence regarding violence against women.

Urvashi Butalia, a prominent feminist scholar and publisher, is blunt in her analysis of the decades of official indifference that have surrounded India’s laws on rape.

“Laws that relate to violence against women, as the rape law largely does, are, in the eyes of the state, best forgotten or not bothered about,” she said in an interview. “Or at least they don’t have the same kind of urgency as, say, corporate legislation might.” “This is still a society that somehow sees women differently, or does not see them at all,” she said. “To me, indifference is much more difficult to fight than active resistance. Resistance is visible. Indifference is often so naturalized that it remains invisible and therefore a major obstacle.”

The first major changes to the laws on rape, which had been inherited almost intact from the days of British rule, only came in 1983. Before then, a woman who said she had been raped had the obligation to prove she had not given her consent.

And it was only this year that the government set up a committee to consider whether the laws should be changed to define sex without consent in marriage as a crime, whether they should be gender-neutral to include the sexual abuse of men and boys, and whether the definition of rape should be expanded to include penetration with objects. The finger test — which ostensibly provides evidence of a woman’s level of promiscuity and has, in some cases, led to rape charges being dropped — is not the only hangover from the days of the Raj.

For Ms. Kashyap, the author of the Human Rights Watch report, the issue goes beyond how the legal system handles rape to the question of how rape is viewed by Indian society. The need for reform goes beyond the law, she said; the need is to change how Indians see rape in the 21st century, as an act of violence rather than an assault on a woman’s chastity.

“Even in its current law-reform phase, the Indian government has retained the coinage of ‘outraging’ or ‘insulting’ the ‘modesty’ of women,” Ms. Kashyap said. “Sexual violence should be completely delinked from patriarchal notions of ‘modesty,’ ‘chastity’ or ‘virginity,’ because ideas of so-called ‘modesty’ themselves perpetuate violence and discrimination. The Indian government should acknowledge that sexual violence is a violation of women’s dignity, equality, sexual autonomy and bodily integrity.”

Underlying the finger test is an unspoken but very strong belief: the idea that a promiscuous woman, or a sexually liberated woman, is fair game, her “modesty” no longer the responsibility of the government to protect.

“Outraging the modesty of a woman” now covers a wide range of cases, many of them unequivocal instances of violence.

The newspapers regularly report incidents in which women, chiefly from the lower castes, are stripped and sometimes beaten as a act of revenge against their communities or families.

In a case in July in a Mumbai slum, a young, lower-caste woman was stripped by a mob of about 20 assailants in a case arising from a dispute between families from different castes. Some of the attackers recorded the assault on their mobile phones. Women’s rights advocates have asked that the prison sentence for those convicted of such attacks be extended from two to seven years. The news media still often refer such assailants as “molesters.” A softening and denial of violence is built into the system.

One 36-year-old woman knows this firsthand. She runs her own garment export company in Ludhiana, the largest city in the northern state of Punjab, and could be the prototype for the modern, successful Indian woman. She is also divorced, from a man who raped her so brutally during their 10-year marriage that she has had to undergo vaginal reconstruction surgery. The law only recognizes a form of rape within marriage in the case of girls under the age of 15, who are considered minors whose unions are not legally valid. So she had to obtain her divorce on other grounds.

“I want to tell the world, my family and friends, the truth — my husband was a rapist,” said the woman, who spoke on condition of anonymity to shield her family. “I can tell them about the beatings, but not the rapes. We aren’t supposed to talk about these matters, because they’re shameful. But if there was shame, there was also anger. The anger of being told, ‘He was your husband, he had the right to do this.’ Maybe for others, it will change. My pain has no voice.”

http://www.nytimes.com/2010/09/22/world/asia/22iht-letter.html?pagewanted=1&tntemail1=y&_r=1&emc=tnt

DIGNITY ON TRIAL – THE CASE OF RAPE VICTIMS IN INDIA A HUMAN RIGHTS WATCH REPORT

India: Prohibit Degrading ‘Test’ for Rape

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, JUSTICE by NNLRJ INDIA on September 7, 2010

HUMAN RIGHTS WATCH

Forensic Exams Should Respect Survivors’ Rights to Health, Privacy, and Dignity

(Mumbai) – Many Indian hospitals routinely subject rape survivors to forensic examinations that include the unscientific and degrading “finger” test, Human Rights Watch said in a report released today. It urged the Indian government to ban the practice, used to determine whether the rape survivor is “habituated” to sexual intercourse, as it reforms its laws on sexual violence. The 54-page report, “Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors,” documents the continued use of the archaic practice and the continued reliance on the “results” by many defense counsel and courts. The practice, described in outdated medical jurisprudence textbooks used by many doctors, lawyers, and judges, involves a doctor inserting fingers in a rape victim’s vagina to determine the presence or absence of the hymen and the so-called “laxity” of the vagina. These findings perpetuate false and damaging stereotypes of rape survivors as “loose” women. Defense attorneys use the findings to challenge the credibility, character, and the lack of consent of the survivors.

“This test is yet another assault on a rape survivor, placing her at risk of further humiliation,” said Aruna Kashyap, women’s rights researcher at Human Rights Watch. “The Indian government should heed demands of Indian activists to abolish this degrading and useless practice.”Finger test findings are scientifically baseless because an “old tear” of the hymen or variation of the “size” of the hymenal orifice can be due to reasons unrelated to sex. Carried out without informed consent, the test would constitute an assault, and is a form of inhuman and degrading treatment, Human Rights Watch said.”I was so scared and nervous and praying all the time: ‘God, let this be over and let me get out of here fast,” the report quotes one rape survivor as saying as she described her experience of a forensic examination.

The Indian government amended its evidence law in 2003 to prohibit cross-examination of survivors based on their “general immoral character.” The Indian Supreme Court, whose decisions are binding, has described opinions based on the finger test as “hypothetical and opinionative,” and has ruled that they cannot be used against a rape survivor.Although these developments have helped curtail the practice, the Indian government has yet to take steps to ensure that all states eliminate it.  There are no nationwide guidelines or programs to standardize forensic examinations and to train and sensitize doctors, police, prosecutors, and judges to survivors’ rights. But the Indian government is currently reviewing laws regarding sexual violence, presenting a unique opportunity for change.

“The Indian government has paid little attention to how health care and forensic services are delivered to survivors of sexual violence,” Kashyap said. “The Indian government should set right this injustice with a comprehensive policy and program for such services.”The report is based on 44 interviews in Mumbai and Delhi with activists, rape survivors and their parents, prosecutors, other lawyers, judges, doctors, and forensic experts. Research also included a review of forensic examination templates used in those cities, and an analysis of 153 High Court judgments on rape that referred to the finger test findings from 18 states. It finds that the finger test-related information continues to be collected and used.

Forensic examinations are a harrowing experience for many rape survivors, who are shunted from one hospital or ward to another for various aspects of the examination. Often doctors insist that the survivor must make a police complaint when she approaches them directly, which can intimidate her. Further, inserting fingers into the vaginal or anal orifice of an adult or child survivor of sexual violence during a forensic examination can cause additional trauma, as it not only mimics the abuse but can also be painful. Some doctors in India conduct the finger test with little or no regard for a survivor’s pain or trauma, Human Rights Watch found.

Many High Court judgments reveal that doctors have testified in court that having one or two fingers inserted into the vagina is “painful” or “very painful” for the survivor.  And when the survivor did not experience any pain –  if two fingers could be inserted “painlessly” or “easily” – then she was described as being “habituated to sex.””Survivors of sexual violence have the right to legal recourse without being further traumatized in the process,” Kashyap said. “The health and criminal justice systems should work together to ensure that they do not perpetuate damaging stereotypes of survivors.”

The Maharashtra and Delhi governments continue to recommend the finger test in their forensic examination templates. For example, as recently as June 2010, the Maharashtra state government introduced a standard forensic examination template that includes a series of questions about the hymen, including the number of fingers that can be admitted into the hymenal orifice. Early this year, the Delhi government introduced a forensic examination template that asks questions about the hymen, including whether it is “intact” or “torn,” the “size of the hymenal orifice,” whether the vagina is “roomy” or “narrow” and has “old tears,” and even asks the examining doctor to give an opinion whether the survivor was “habituated to sex.” Much of the Delhi template resembles a template created by the Indian Medical Association and disseminated to doctors across the country between 2006 and 2008.

The World Health Organization’s (WHO) “Guidelines for medico-legal care for victims of sexual violence” recommends that health care and forensic services be provided at the same time, and by the same person, to reduce the potential for duplicating questions and further traumatizing the survivor of sexual assault. It states that health and welfare of a survivor of sexual violence is “the overriding priority” and that forensic services should not take precedence over health needs. It also says forensic examinations should be minimally invasive to the extent possible and that even a purely clinical procedure such as a bimanual examination (which also involves the insertion of two fingers into the vagina) is rarely medically necessary after sexual assault.

The Indian government should use its ongoing reform process for laws relating to sexual violence to prohibit the finger test and standardize the medical treatment and forensic examinations of survivors of sexual violence in line with the rights to health, privacy, dignity, and legal remedy, Human Rights Watch said. The government should introduce special programs to sensitize doctors, police, prosecutors, and judges to the rights of survivors, and set up multidisciplinary teams in every government hospital with doctors trained to be sensitive to survivors and with training and equipment to conduct forensic examinations in a manner that respects survivors’ rights.

Sample Testimony From the Report

The clerk told me a male doctor will conduct the test [forensic examination] and asked me whether that was ok. I said “yes.” But other than that, I did not know what they were going to do. I was so scared and nervous and praying all the time: “God, let this be over and let me get out of here fast.” I did not even know it was going to be like a delivery examination [an internal gynecological examination].

- Sandhya S. (name changed), adult rape survivor, Mumbai, August 2, 2010

In cases of very young girls – girls below [age] 12 or 13 – they [police officers and hospital staff] believe it is a case of sexual abuse. But if they are older, then they believe that the girl is trying to falsely frame someone. Their belief changes the way they address the survivors. They are very rude and disrespectful. They will say things like, “Why are you crying?” “You have only been raped.” “You are not dead.” “Go sit over there.” And order them around.

- Dr. Rajat Mitra, director, Swanchetan, a nongovernmental organization that provides counseling services to rape survivors, Delhi, May 25, 2010

Where the defense takes the line that there was consent [to sexual intercourse], usually they also look to medical evidence for support. And if the medical report says anything about the finger test, then they draw it out in court – saying she was “habituated” so consented and is falsely implicating the accused.

- Dev D. (name changed to maintain anonymity as requested) a former public prosecutor, New Delhi, May 22, 2010

The finger test is relevant for the defense especially if the prosecutrix [term used to refer to a rape survivor during trial] case is that the woman is unmarried [as opposed to a married woman who is assumed to be "habituated to sex"]. Then if the medical report says that two fingers have passed, the defense can show that she is habituated. This shakes the testimony of the prosecutrix.

- Radha M. (name changed to protect identity), a former chief public prosecutor, location withheld, May 11, 2010

Sample Extracts From Judgments

“Though the girl was aged about 20 to 23 years and was unmarried but she was found to be “habituated to intercourse.” This makes her to be of doubtful character.”

- Jharkhand High Court, 2006

“She was complaining pain and the vagina was admitting 1½ finger [sic] …. From the medical report it is clear that the prosecutrix was not a girl of lax moral and she was not “habituated to sexual intercourse” and most probably, that was her first experience as the doctor has observed reddishness on her vagina and blood secretion and pain on touching the vagina.”

- Chhattisgarh High Court, 2007

SOURCE : http://www.hrw.org/en/news/2010/09/06/india-prohibit-degrading-test-rape
THE COPY OF THE REPORT
DIGNITY ON TRIAL – THE CASE OF RAPE VICTIMS IN INDIA A HUMAN RIGHTS WATCH REPORT

Ban finger test in rape cases

Posted in CRIME AGAINST WOMEN, CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS by NNLRJ INDIA on September 7, 2010

FROM THE HINDU

Making a woman’s sexual experience the basis for judging her moral character can have a disastrous impact not only on a rape trial, but more importantly, on the victim’s well-being. Stereotypes about sex and morality are continually evoked in Indian courts at all levels. In 2009, the Supreme Court stated the victim “appears to be a lady used to sexual intercourse and a dissolute lady.” Acquitting the accused for lack of medical evidence, the Patna High Court said, “Though the girl was aged about 20 to 23 years and was unmarried, she was found to be “habituated to intercourse.” This makes her to be of doubtful character.”

The observations are from a report titled ‘Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors’ by the organisation Human Rights Watch (HRW).

Medical evidence

Released on Monday, the report “discusses the problems posed by one of the most archaic forensic procedures still in use: the finger test — a practice where the examining doctor notes the presence or absence of the hymen and the size and so-called laxity of the vagina of the rape survivor.” It’s a procedure that mimics the act of rape, further aggravating the victim’s trauma. Terming it “degrading,” “inhuman” and “unscientific,” the study calls for a ban on the finger test as a method for collecting medical evidence in rape cases. “[It] is supposed to assess whether girls and women are ‘virgins’ or ‘habituated to sexual intercourse.’ Yet it does none of this,” the report states. At a press conference here on Monday, Aruna Kashyap, women’s rights researcher at HRW and author of the report said, “The test has potential for re-traumatising the victim. We decided to do a report on the finger test because of certain regressive developments in the country recently.”

“The Maharashtra and Delhi governments continue to recommend the finger test in their forensic examination templates. For example, in June 2010, the Maharashtra government introduced a template that includes a series of questions about the hymen, including the number of fingers that can be admitted into the hymenal orifice,” she said.

The apex court has described the test as “hypothetical and opinionative.” Secondly, “it has clearly and repeatedly held that showing that a survivor is ‘habituated to sexual intercourse’ is immaterial to the issue of consent in a rape trial.”

Despite these rulings, opinions on the victim’s sexual experience are routinely sought. They play a role in shaping the attitude of the police, medical professionals and courts. Ms. Kashyap said the root of misinformation lay in outdated textbooks on medical jurisprudence. “The Supreme Court’s decision on the test should be included in the textbooks,” she said.

Absence of definition

“The absence of a comprehensive definition of sexual violence in Indian law has also hindered the prosecution of various sexual offences, resulting in acquittals or inadequate punishments for convicted criminals,” it observes. Pointing to the rigidity of the criminal justice system, noted women rights lawyer Flavia Agnes pointed to the functioning of a deeper ideology. “Non-biased legal opinion is always biased against the woman. As if medical status has a moral character. Virginity becomes a criterion for truthfulness or character? Is it the same with, say, anaemia?” she asked. World Health Organisation (WHO) guidelines stipulate minimally invasive procedures and “non-invasive” ones for prepubescent girls and boys. The report stresses the need to train and sensitise medical professionals in collecting and documenting forensic evidence in sexual offences. This report is based on HRW’s research between April 10 and August 10, 2010, in Delhi and Mumbai. The observations rest on 44 interviews with activists, rape survivors and their parents, prosecutors, other lawyers, judges, doctors and forensic experts in Mumbai and Delhi.

‘No corroboration needed in rape cases if victims are illiterate’

J. Venkatesan IN THE HINDU

Their statements have to be accepted in toto: Supreme Court

‘Why should the evidence of a woman complaining of rape be viewed with doubt or disbelief?’

‘Improper and undesirable to test her evidence with suspicion, treating her like an accomplice’


NEW DELHI: The Supreme Court has held that in cases of rape, particularly, if the victims are illiterate, their statements have to be accepted in toto without further corroboration for convicting the accused. A Bench of Justice comprising Justice P. Sathasivam and Justice R.M. Lodha said: “Any statement of rape is an extremely humiliating experience for a woman, and until she is a victim of sex crime, she would not blame anyone but the real culprit. “While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her, and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for.” Writing the judgment, Justice Sathasivam, quoting earlier judgments, said: “When a First Information Report is lodged by a lady with regard to the commission of offence like rape, many questions would obviously crop up for consideration before she finally decides to lodge the FIR. “It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only giving it a serious thought, must have decided to lodge the FIR.” Quoting another judgment, the Bench said seeking corroboration of the rape victim’s statement before relying upon the same would amount to adding insult to injury. “Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? Corroborative evidence is not an imperative component of judicial credence in every case of rape.

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

“It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust, and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice,” the Bench said. In the instant case, two illiterate sisters, working in a quarry, were raped by appellants Santhosh Moolya and Surendra Gowda in Ashwathapura village in Dakshina Kannada, Karnataka. The trial court found the accused guilty and convicted them to undergo seven years rigorous imprisonment, and this was confirmed by the Karnataka High Court. The present appeals are directed against this judgment on grounds that the FIR was registered 42 days after the incident and that it was not safe to rely on the testimony of the victims alone in the absence of further corroboration. Rejecting the contention and dismissing the appeals, the Bench said: “We are satisfied that though there was a delay of 42 days in lodging the complaint, the same was properly explained by the victims and other witnesses. We have noticed that except the victims, no male member is available in their family to help them. “Further, the prosecution witnesses asserted that after committing the rape, the appellants had threatened that they would kill the victims if they informed anyone. There is no reason to disbelieve the statement of the victims and the courts below have rightly accepted their statements.”

http://www.hindu.com/2010/04/28/stories/2010042861390800.htm

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