LAW RESOURCE INDIA

A moment of triumph for women

Posted in CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, VIOLENCE AGAINST WOMEN, WOMEN EMPOWERMENT by NNLRJ INDIA on January 26, 2013

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By Kalpana Kannabiran Published  in THE HINDU

The comprehensive reforms suggested by Justice Verma and his colleagues will protect the right to dignity, autonomy and freedom of victims of sexual assault and rape

Starting with Tarabai Shinde’s spirited defence of the honour of her sister countrywomen in 1882, women’s movements in India have been marked by persistent and protracted struggles. But despite this rich and varied history, we have in recent weeks found ourselves shocked at the decimation of decades of struggle.

A transformation

At a time when despair and anger at the futility of hundreds of thousands of women’s lifetimes spent in imagining a world that is safe drive us yet again to the streets; at a time when our daughters get assaulted in the most brutal ways and our sons learn that unimaginable brutality is the only way of becoming men; at a time when we wonder if all that intellectual and political work of crafting frameworks to understand women’s subjugation and loss of liberty through sexual terrorism has remained imprisoned within the covers of books in “women’s studies” libraries; at a time like this, what does it mean to suddenly find that all is not lost and to discover on a winter afternoon that our words and work have cascaded out of our small radical spaces and transformed constitutional common sense?

The Report of the Committee on Amendments to Criminal Law headed by Justice J.S. Verma is our moment of triumph — the triumph of women’s movements in this country. As with all triumphs, there are always some unrealised possibilities, but these do not detract from the fact of the victory.

Rather than confining itself to criminal law relating to rape and sexual assault, the committee has comprehensively set out the constitutional framework within which sexual assault must be located. Perhaps more importantly, it also draws out the political framework within which non-discrimination based on sex must be based and focuses on due diligence by the state in order to achieve this as part of its constitutional obligation, with the Preamble interpreted as inherently speaking to justice for women in every clause.

If capabilities are crucial in order that people realise their full potential, this will be an unattainable goal for women till such time as the state is held accountable for demonstrating a commitment to this goal. Performance audits of all institutions of governance and law and order are seen as an urgent need in this direction.

The focus of the entire exercise is on protecting the right to dignity, autonomy and freedom of victims of sexual assault and rape — with comprehensive reforms suggested in electoral laws, policing, criminal laws and the Armed Forces (Special Powers) Act, 1958, and the provision of safe spaces for women and children.

Arguing that “cultural prejudices must yield to constitutional principles of equality, empathy and respect” (p.55), the committee, in a reiteration of the Naaz Foundation judgment, brings sexual orientation firmly within the meaning of “sex” in Article 15, and underscores the right to liberty, dignity and fundamental rights of all persons irrespective of sex or sexual orientation — and the right of all persons, not just women, against sexual assault.

Reviewing leading cases and echoing the critique of Indian women’s groups and feminist legal scholars — whether in the case of Mathura or even the use of the shame-honour paradigm that has trapped victim-survivors in rape trials and in khap panchayats, the committee observes: “…women have been looped into a vicious cycle of shame and honour as a consequence of which they have been attended with an inherent disability to report crimes of sexual offences against them.”

In terms of the definition of rape, the committee recommends retaining a redefined offence of “rape” within a larger section on “sexual assault” in order to retain the focus on women’s right to integrity, agency and bodily integrity. Rape is redefined as including all forms of non-consensual penetration of sexual nature (p.111). The offence of sexual assault would include all forms of non-consensual, non-penetrative touching of sexual nature. Tracing the history of the marital rape exception in the common law of coverture in England and Wales in the 1700s, the committee unequivocally recommends the removal of the marital rape exception as vital to the recognition of women’s right to autonomy and physical integrity irrespective of marriage or other intimate relationship. Marriage, by this argument, cannot be a valid defence, it is not relevant to the matter of consent and it cannot be a mitigating factor in sentencing in cases of rape. On the other hand, the committee recommended that the age of consent in consensual sex be kept at 16, and other legislation be suitably amended in this regard.

Verma ReportVoices from conflict zones

Rights advocates in Kashmir, the States of the North-East, Chhattisgarh, Gujarat and other areas that have witnessed protracted conflict and communal violence have for decades been demanding that sexual violence by the armed forces, police and paramilitary as well as by collective assault by private actors be brought within the meaning of aggravated sexual assault. This has been taken on board with the committee recommending that such forms of sexual assault deserve to be treated as aggravated sexual assault in law (p. 220). Specifically, the committee recommends an amendment in Section 6 of the AFSPA, 1958, removing the requirement of prior sanction where the person has been accused of sexual assault.

Clearly a sensitive and committed police force is indispensable to the interests of justice. But how should this come about? There have been commissions that have recommended reforms, cases that have been fought and won, but impunity reigns supreme. If all the other recommendations of the Committee are carried through, will the government give even a nominal commitment that the chapter on police reforms will be read, leave alone acted on?

The Delhi case

The recent gang rape and death of a young student in Delhi has raised the discussion on the question of sentencing and punishment yet again. The first set of questions had to do with the nature and quantum of punishment. Treading this issue with care, the committee enhances the minimum sentence from seven years to 10 years, with imprisonment for life as the maximum. On the death penalty, the committee has adopted the abolitionist position, in keeping with international standards of human rights, and rejected castration as an option. The second question had to do with the reduction of age in respect of juveniles. Despite the involvement of a juvenile in this incident, women’s groups and child rights groups were united in their view that the age must not be lowered, that the solution did not lie in locking them up young. Given the low rates of recidivism, the committee does not recommend the lowering of the age, recommending instead, comprehensive institutional reform in children’s institutions.

The report contains comprehensive recommendations on amendments in existing criminal law, which cannot be detailed here except in spirit. The significance of the report lies, not so much in its immediate translation into law or its transformation of governance (although these are the most desirable and urgent), but in its pedagogic potential — as providing a new basis for the teaching and learning of the Constitution and criminal law and the centrality of gender to legal pedagogy.

(Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad. Email: kalpana.kannabiran@gmail.com)

By Kalpana Kannabiran Published  in THE HINDU

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Blind to what, Your Honour?

Posted in COURTS, CRIME AGAINST WOMEN, FUNDAMENTAL RIGHTS, GENDER, HUMAN RIGHTS, JUDICIARY, JUSTICE by NNLRJ INDIA on December 31, 2012

JUSTICEINDIRA JAISINGH IN THE TIMES OF INDIA

Of all the promises made in the Constitution, the most important are the promises of the ‘right to life’, the ‘right to dignity’, the ‘right to personal liberty’ and the ‘right to bodily integrity and health’. However these promises are yet to be redeemed for women. Rape and other forms of sexual assault,domestic violence,dowry death and honour killings — the most brazen violation of these rights — are a real and daily danger for most women.

The cry that has been reverberating in the streets of the capital — and across the country — from a new and younger generation of citizens is: “We want justice”. It is addressed to us judges and lawyers whose primary responsibility is to protect the rights of the people. The women of this country are no longer willing to tolerate the unconscionable delays in the delivery of justice. It is the sacred duty of judges to prevent violence against women in the home; at the work place and on the streets and hold the perpetrators accountable. What is it that stops courts from securing justice for women? Why has the law not been able to convict the accused when it comes to crime against women? The situation is best summed up by a famous Orwellian quote—’ to see what is in front of one’s nose needs a constant struggle’.

To see the lack of judicial will to get justice for victims of gender-based violence, as stemming from a deeply entrenched prejudice and misogyny in the justice delivery system, including the courts and their judges, is an exercise demanding a constant struggle. It is so much in front of our noses that we, women and men included, legitimise the presence of sexism in our lives and carry it to the corridors of the court and into the courtrooms and into judgements.

This is a part of the Indian reality; from the private sphere of the ‘home’ to the public space like places of work; from the open streets to the corridors of courts playing out in the theatres of justice. Today, the belief in equality is not sincerely held at all. On the contrary, the social system, including the judicial system, is built on a hierarchy along caste and gender lines.

It is no secret that violence against women stems from the deeply unequal relationship between the two sexes in private and public life. It is also no secret that this misogyny is deeply rooted in our society, including within the system of administration of justicefrom investigation to trial, to judgment. A high court judge in Orissa in his judgement once famously held, that it was not possible for a man, acting alone, to rape a woman in good health. There you have it, the distinction between “legitimate” rape and ” illegitimate” rape (to borrow from the infamous comment by Todd Akin) coming from a high court judge.

This is the same thing you hear so often from judges that “women are misusing the law.” They decide what is the legitimate use of the law for women, based on a deeply sexist view of how a woman should behave; what she should desire and how much violence she should tolerate. A casual glance at the kinds of questions a woman is asked in any prosecution of gender- based violence or a reading of judgments of the court will reaffirm this view. On one occasion when a woman lawyer asked for an adjournment, a district judge said, ” I know how you women lawyers make it”. He was rewarded by being appointed to the high court.

Sexual violence against women is unique as it begins in the home and moves out to public places. The problem begins with the assumed consent that women give to sexual intercourse within a marriage. Rape by a man of his wife without her consent is not an offence. Since this is a settled norm, it matters little whether forcible sexual intercourse is with the wife or a stranger on the street. With this accepted culture of rape within marriage standing tall, we have little hope of changing the culture of violence against women anywhere. The assumed consent of a woman to sexual intercourse becomes ingrained in the psyche of a man — as a husband, a son, a brother and this psyche continues into public spaces. Thus it is imperative to recognise that non-consensual sexual intercourse is unacceptable regardless of whether it is with a wife or a stranger, if we want sexual violence against women to stop. A legal culture that creates ‘legitimate and ‘illegitimate’ violence needs to change.

It is heartening to see for the first time, a large number of men on the streets protesting against sexual abuse of women. It is a new generation which brings hope that the tendency for violence against women is about to end as men of future generations will not tolerate such violence.

Lack of adequate number of judges or excessive workload is no longer an acceptable excuse to the women of this country for delaying judicial decisions. They know that it is the abuse of the process of law by vested interests and the utter indifference to women who have been sexually abused, that cause delays, not lack of infrastructure. An approximately 40% increase in the number of judges between 2005 and 2012, has not produced a corresponding decline in the pendency of cases. Justice does not reside in the brick and mortar courtrooms but in the heart and soul of judges and lawyers who represent victims of injustice. Any judge worth the name knows how to prevent delays and an abuse of the process of law by the rich and the famous.

The first duty of judges is to give cases of sexual assault priority and deal with them expeditiously with zero tolerance for delay. The demand for fast track courts is a metaphor for the intolerance of a dysfunctional legal system. While dedicated courts may go some way in dealing with the issue of delays, they will have to be accompanied by support structures, which enable a fair investigation and prosecution.

Women are conspicuous by their absence from the courts as lawyers and as judges. On the other hand, our law schools have at least 50% women students. Yet due to the patriarchy embedded in the judiciary and the legal system, the number of women lawyers and judges is negligible. Even those who manage to penetrate the highly patriarchal framework are discriminated against in terms of appointments, designation as seniors and promotions. Women are constantly under the microscope being pushed to prove themselves while male lawyers need pass no test of competence. The old boys network effectively keeps women out of the span of all zones of influence.

All talk of increasing the penalty for rapists to death is hollow. As the law stands today, a m a n fo u n d guilty of rape can be given a life sentence, And yet in my entire career as a lawyer spanning over 40 years, I have yet to see a single case in which a life sentence has been meted out to a rapist, what then to talk of the death penalty! This calls for urgent action plan by the Chief Justice of India and the chief justices of all high courts to raise as fast as possible the number of women judges in our courts. A few years ago, a woman who I represented in a classic case of sexual harassment, once asked me why her appeal was not being listed before a woman judge in the Supreme Court. My answer was simple, “because there is no woman judge in the Supreme Court.” At this she expressed her amazement and asked, if the Supreme Court could mandate that the chairperson of a sexual harassment committee which was to be set up by employers must be a woman, how come that law does not apply to the court itself ? I had no answer.

A critical mass of women in the judicial system and in the prosecution will inspire confidence in the system for women. The world over, this is known to happen. Women today have no stake in the judicial system and this is reflected in the cry “We want justice”.

A demand for accountability of institutions of justice delivery, the police and the courts must accompany the demand for appropriate laws. Accountability of the police must start with a complaints procedure within the police service itself where a complaint can be lodged for non-performance of duties. A clear command responsibility must be articulated within this mechanism so that in case of non-performance of duties by a junior, the senior officer is held liable. When a pattern of non-performance emerges, leading to a permanent sense of insecurity in which women live, the accountability must be that of the head of the police, and of the political establishment. Confidence in the administration can only be restored by measurable action against people in positions of power.

The judiciary has long been a selfregulating, self- appointing institution. We need a transparent method of appointment of judges where the antecedents of the proposed appointee can be publicly scrutinised. Accountability of the legal system must carry with it, accountability of judges. We need an official mechanism for monitoring the performance of the judiciary to check how content of their judgements meet the constitutional goals of equality. We need independent special rapporteurs drawn from civil society to report directly to Parliament on the performance of the legal system, the judicial system and the police system and violence against women.

It is time for standards to be put in place as to how judges must behave with women lawyers and litigants. The language of the law must be sanitized of all its male chauvinist content. No judge, let alone a Supreme Court judge must ever be allowed to use sexist language in judgements or during the course of arguments in court. Accountability starts at the top with the Supreme Court, what a judge of the Supreme Court thinks and says today, will be said and done by the 17,000 subordinate court judges who deliver justice under the supervision of the high courts.

We need a protocol on how judges ought to behave with women in courts and how they should address women’s issues in their judgements. Gender sensitive language must reflect in judgements dealing with women. This is not a matter of form but of substance. Changing culture and mindsets often requires language to change and rules and regulations, which reflect the change and do not permit a fall from standards. This is the time when the Chief Justice of India must rise to the occasion and speak to the nation and inform us what will be done to restore the confidence of the people in the justice system. Besides his role as a judge, he has a role as the head of the judiciary responsible for the administration of the justice.

The single most important statement we would like to hear from him, is that discrimination against women by judges will not be tolerated; the judiciary will have to exhibit and demonstrate zero tolerance of violence against women in the home, and on the streets.

The goal of law is to sustain life not support its destruction. This is what the 23-year-old was trying to tell us, before she died. “I want to live,” she said, not die of shame. She changed the way society looks at rape — from blaming the victim to focusing on the rapist. All law reform must move in that direction, asking how we can build a new life-sustaining legal culture, a more equal culture, with justice for all. That is the question we must address — with or — without a special session of Parliament.

The writer is Additional Solicitor General of India

INDIRA JAISINGH IN THE TIMES OF 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

The Protection of Children from Sexual Offences Act, 2012 passed – Children in India get a new Law

Posted in CHILD ABUSE, CHILD RIGHTS, TRAFFICKING, VICTIMS by NNLRJ INDIA on May 23, 2012

The Protection of Children from Sexual Offences Act, 2012, has been passed by the Lok Sabha today, 22nd May, 2012. The Bill was earlier passed by the Rajya Sabha on 10th May, 2012.

The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children.

 Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.

 The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court.

An offence is treated as “aggravated” when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc.

 Punishments for Offences covered in the Act are:

  1. Penetrative Sexual Assault (Section 3) –  Not less than seven years which may extend to imprisonment for life, and fine (Section 4)
  2.  Aggravated Penetrative Sexual Assault (Section 5) –­ Not less than ten years which may extend to imprisonment for life, and fine (Section 6)
  3. Sexual Assault (Section 7) – Not less than three years which may extend to five years, and fine  (Section 8 )
  4. Aggravated Sexual Assault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)
  5. Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)
  6. Use of Child for Pornographic Purposes (Section 13) –  Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))

The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. The Act incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:

  1. Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector
  2. No child to be detained in the police station in the night for any reason.
  3. Police officer to not be in uniform while recording the statement of the child
  4. The statement of the child to be recorded as spoken by the child
  5. Assistance of an interpreter or translator or an expert as per the need of the child
  6. Assistance of special educator or any person familiar with the manner of communication  of the child in case child is disabled
  7. Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
  8. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
  9. Frequent breaks for the child during trial
  10. Child not to be called repeatedly to testify
  11. No aggressive questioning or character assassination of the child
  12. In-camera trial of cases

The Act recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for upto half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative Sexual Assault, Aggravated Penetrative Sexual Assault, Sexual Assault and Aggravated Sexual Assault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year.

For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.

To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act.

The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.

  1.  SCR summary-Protection of Children from Sexual Offences Bill
  2. SCR Protection of Children from Sexual Offences Bill 2011
  3. Children  sexual offences
  4. Bill Summary – The Protection of children from sexual harassment Bill, 2011

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

No need for corroboration and conviction can be imposed on the sole statement of the victim – Supreme Court

Posted in SEXUAL OFFENCES, SUPREME COURT, VICTIMS by NNLRJ INDIA on October 26, 2011

The Supreme Court has ruled that in rape cases there is no need for corroboration and conviction can be imposed on the sole statement of the victim. A bench of justices P Sathasivam and B S Chauhan said that the victims testimony cannot be looked at with suspicion. Supreme court adeed that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The Prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Hence, the victims evidence need not be tested with the same amount of suspicion as that of an accomplice. The bench dismissed an appeal filed by Mohd Imran Khan and Jamal Ahmed challenging their conviction for rape of a minor girl about 22 years ago. The defence had argued the victim’s statement cannot be relied upon as she had eloped with the accused.

In 2009, the court had ruled the same when awarding rigorous life imprisonment to convict Raju, a resident of east Delhi for raping his five-year-old neighbour. The apex court had ruled that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent, is even more reliable. Evidence Act does not says that victims evidence cannot be accepted unless it is corroborated in material particulars. The court had also ruled that a victim is undoubtedly a competent witness under Section 118. However, courts also say that if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

Errors in Age Verification

The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side.

In Jaya Mala v. Home Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this Court held:

However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550)

Judgement Text:

EVIDENCE OF PROSECUTRIX:

It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as  that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act’), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim.

The rapist degrades the  very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2). This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein this Court observed that the courts must, while  evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.

Similarly, in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9, it has been observed as under:

It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.

Much reliance has been placed by learned counsel for the appellants on the judgment of this Court in Javed Masood & Anr. v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held that in case the prosecution witness makes a statement and is not declared hostile, he is supposed to speak the truth and his statement is to be believed.

It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix.

Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O. (PW.15) particularly in view of the birth certificate available on the record. In view of our finding in respect of the date of birth we are of the view that Puran Singh, I.O. (PW.15) unfortunately made an attempt to help the accused/appellants, though in the examination-in- chief the witness has deposed that the Birth Certificate providing the date of birth as 2.9.1974 was genuine.

Be that as it may, by now Puran Singh (PW.15) might have retired as the incident itself occurred 22 years ago. Therefore, we do not want to say anything further in respect of his conduct.

In State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185, this Court while dealing with a similar issue held:It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently  of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.

The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. Investigating Officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. (Vide: Jamuna Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC 1 1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254)

Shri Amrendra Sharan, learned senior counsel has placed reliance on the judgment of this Court in Baldev Singh & Ors. v. State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang rape had been sentenced to 10 years RI and a fine of Rs.1000/- each had been imposed and served about more than 3 years imprisonment and incident had been very old, this Court in the facts and circumstances of the case reduced the sentence as undergone, directing the appellants therein to pay a sum of Rs.50,000/- of fine to be paid to the victim and prayed for some relief.

The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit   case to reduce the sentence further in a proved case of rape of a minor. The appeals lack merit and are, accordingly, dismissed.

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

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
Human Rights Watch logo

Image via Wikipedia

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

Can a woman rape a man?

Posted in CRIME AGAINST WOMEN, SEXUAL OFFENCES, VICTIMS by NNLRJ INDIA on April 1, 2010

DIVYA A  IN THE TIMES OF INDIA

The government recently decided to amend the Indian Penal Code (IPC) and replace the word “rape” with “sexual assault’’. The proposal would make the offence of rape gender-neutral. But can a government change the meaning of the word “rape”?  Can a man rape a man? Can a woman rape a woman? And finally, unimaginably, can a woman rape a man? Even dictionaries offer gender-specific meanings for rape.  So, does that make a nonsense of the amended IPC? Flavia Agnes, Mumbai-based lawyer and activist, says it is certainly far-fetched. “To presume that women can rape men is rather outrageous,” says Agnes. “While women can sexually harass men, they can’t sexually assault them. There have been no such cases anywhere.” In fact, rape is a “deeply gendered construction”, with several social implications for women such as stigma, she adds.  One rape case is registered every 54 minutes somewhere in India. Many more incidents go unreported. Take the case of 19-year-old Sulabha Rani* from Uttarakhand’s Chamoli village. In 2004, her uncle took her to Dehradun to work as a domestic help. He sold her to two men who raped her in a moving car. The next morning, she found herself lying half-naked and bruised on a sidewalk. Back with her parents now, and with her uncle absconding, Sulabha reportedly hasn’t been able to leave her bed or utter a word since that day.

Then there is Radha, an Agra college student, who tried to take on a bunch of rowdy goons making lewd remarks about passing girls. One evening, as she returned from college, Radha was raped by the goons, who said they were punishing her for her ‘bravery’.

So, can a woman ever do the same to a man? Agnes says rape is not just a physical assault, but an expression of power and control by men over women. “As we do not live in a gender-neutral society, having a gender-neutral rape law will only make the situation worse for women, as many may get accused of rape,” she says. Legal experts are apprehensive the IPC amendment will open the floodgates for other gender-neutral laws, such as those governing domestic violence, dowry death, cruelty to wives or even maintenance to women after a divorce.  But some aspects of the proposed amendment are being welcomed. Sexual assault is to cover crimes such as sodomy, insertion of a foreign object and other offences that are not currently covered by the legal definition of rape. The rape law was amended in 1983 and ever since, women’s groups have campaigned for a law on sexual assault, which would cover issues of incest and non-penetrative child sexual abuse. Author-activist Pinki Virani, who filed a plea for the mercy killing of Aruna Shanbaug, a paralysed and brain-dead Mumbai nurse who was attacked and raped in 1973, says, “The amendment may not help women too much but it will help minor victims. I’m glad boys will be included in the category of victims who can be sexually preyed upon by older men without sodomy being the only criteria of boy-rape.”  The provisions can also help in cases such as that of Ruchika Girhotra, who was sexually molested by Haryana DIG, SPS Rathore as a teenager, 19 years ago. Aradhna Gupta, who fought for justice for her dead friend, says this is a commendable move. Speaking to STOI from Sydney, Gupta says: “Now, more culprits can be booked for committing heinous sexual crimes. Had it happened two decades back, Ruchika would have been alive.”

Virani says the amendment raises questions about whether cases pertaining to children can be clubbed with adults. What about incest, arguably more traumatic than a single assault by a total stranger? Agnes says the government must take these complexities into account before amending the law of the land governing rape.  *The names of victims have been changed

http://timesofindia.indiatimes.com/home/sunday-toi/view-from-venus/Can-a-woman-rape-a-man/articleshow/5733229.cms

COMMENTS HAVE BEEN INVITED BY THE MINISTRY OF HOME AFFAIRS ON THE CHANGES IN CRIMINAL LAW WITH REGARD TO RAPE AND SEXUAL ABUSE

Criminal Law (Amendment) Bill 2010

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