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LATEST NEWS UPDATES | No Shortcuts on Rape :Make the Legal System Work-Flavia Agnes

No Shortcuts on Rape :Make the Legal System Work-Flavia Agnes

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published Published on Jan 14, 2013   modified Modified on Jan 14, 2013
-Economic and Political Weekly

The vigorous public discourse following the recent brutal gang rape and mutilation of the 23-year-old in Delhi is a positive sign but hopefully the demand for quick solutions will not ignore the complexities involved in dealing with all forms of violence against women. There are also other connected issues that require urgent attention including the description of a rape as a "state worse than death", making out certain acts of violence to be rare aberrations when they are depressingly routine, ignoring the sexual violence within families and the need to make the legal system accountable to the female citizenry.

Flavia Agnes (fl aviaagnes@gmail.com) is a women’s rights lawyer and director of Majlis which also runs a rape victim support programme in Mumbai.

Now that the gang rape victim christened as “Nirbhaya”, “Braveheart”, “India’s Daughter”, etc, by the media, has finally been laid to rest, despite the Delhi administration’s best efforts to prolong her ordeal until the protestors at India Gate were worn out, perhaps it is time to address deeper concerns that surround the issue of rape in public discourse.

Though many of us would like to change the terminology from “rape victim” to “rape survivor”, unfortunately that cannot be done in her case since she did not “survive”. The brutal injuries inflicted on her body during the gang rape took her life. One is therefore constrained to label her a “victim” despite her heroic struggle.

Had she survived (as many of us wished she had) she could have been the mascot for the movement against violence perpetrated on women. She might have come out in the open in the wake of the massive support she received across the nation, and by this very act made a strong statement to the world at large that a rape victim does not have to survive like a zinda laash (a living corpse), a title awarded to rape survivors by our parliamentarians. Her fight for justice would have become a beacon of hope for many others. Her struggle for justice may even have helped to lessen the stigma attached to the term “rape” itself in public discourse and her struggle might have inspired many youngsters to come out and report incidents of sexual assault. But that was not to be. This mantle has now fallen upon the protestors and the political leaders who collectively mourn her death.

Not a ‘Living Corpse’

Rather sadly, the wishes of those demanding the death penalty to avenge her rape seem to have been fulfilled, without any major changes taking place in the rape law, since it has become a case of “rape and murder” and the “rarest of rare” maxim can be applied to it. But if the death penalty is all that we are seeking, then her heroic struggle would be in vain. Her death is not something to be proud of, because death is not what she wished for. In the few moments in which she could express her wishes after the traumatic incident, she had clearly indicated that she wanted to live. Live life fully, not as a mere shadow of her earlier self, like a “living corpse” – complete her training, earn and support her family. I hope after this, all of us will refrain from referring to a survivor as zinda laash or describe rape as a “state worse than death”. With death one reaches the point of no return, but as long as there is life, there is hope. An incident of rape, not even a brutal gang rape, ought not to have snuffed out the hope of a 23-year-old, eager to scale new heights. One can only hope that this is one lesson the nation has learnt through this episode.

The nationwide protest which this incident helped to ignite and the clarion call for reforms in the rape law are positive signs. But for the sake of easy and quick solutions, hopefully the discourse will not flatten out the complexities involved in issues concerning violence against women and will help us to seek answers to complex questions which do not get resolved through retributive justice measures such as the death penalty, public hanging, castration or instant “justice”. We need to keep reminding ourselves that the girl died due to the brutal attack on her with iron rods which damaged her intestines and led to the poisoning of all her vital organs. Nothing can be more brutal than this. When we describe rape as “worse than death”, we need to remind ourselves that insertion of objects such as wooden splinters, iron rods, glass bottles, knives and swords into the vagina causes far more serious damage to the female anatomy, but unfortunately it does not warrant the same kind of punishment as rape since it is not perceived as a “state worse than death”. In cases of brutal sexual assault on children one can observe this type of violence. One can also notice this kind of mutilation of the female body during caste and communal violence such as that during Partition, the Gujarat carnage and atrocities on dalits (like the Khairlanji rape and murders in Maharashtra). Therefore, we need to move away from the patriarchal premise of vaginal purity while we are addressing issues of sexual assaults and stop awarding a special status for peno-vaginal penetration as compared to other types of violations.

Vaginal penetration is only one of the many ways in which women are chastised and humiliated. Acid attacks, slashing of the face, stripping and parading, dragging women to the ground and kicking them on their abdomen, etc, are some of the other violent ways in which women are shown their place in public. Even while the protests were going on in most of the major cities, a young student in a local college in Mumbai stabbed his ex-girl friend several times and then stabbed himself. While the boy died instantly, the girl succumbed to her injuries after a few days. This violence is no less gruesome than an incident of gang rape.

Routineness of Violence

If women’s lives are endangered in so many different ways, then castration of the rapists cannot give us the answers that we are seeking as it reinforces the same old value system that continues to view rape as a state “worse than death”. It is too short-sighted and serves only to lay the emphasis back on the patriarchal premise of the sanctimony attached to vaginal purity and does not help us to move forward. We would then be forced to move on to other barbaric and medieval forms of retributive justice like cutting off the hands of all those who indulge in heinous acts of violence against women. This demand obscures the routineness of the violence that takes place in our society, in our homes, in our private spaces and makes it seem like a rare aberration.

One wonders whether the protests would have been on this scale if they had not raped her but only assaulted her and her male companion with iron rods. Is it the titillating aspects attached to a gruesome gang rape that arouses feelings of grief and vengeance? The brutal manner in which the girl was attacked is indicative of a deep-rooted hatred towards women, particularly towards those women who dare to cross the boundaries. They are seen as “free for all” or rather, everyone thinks that they are the custodians of women’s morality and that they have a right to “teach them a lesson”.

In some recent cases of gang rape the girl was out with a male companion. Is the outrage against her an indication of the societal desire to curb any expression of sexual freedom among young, unmarried girls? Recently, in Bengaluru, a law student of the prestigious National Law University was gang raped when she was in a lonely spot with a male companion. The doctors who examined her were more concerned about the elasticity of her vagina than finding forensic evidence of the gruesome crime. In 2010, a young 16-year-old Hindu girl travelling in a bus with her Muslim friend on the outskirts of Mangalore was dragged out of the bus by members of an extremist Hindu fundamentalist outfit and taken to a police station. A case of rape was foisted against her friend. Her father was called to the police station and was humiliated. That night the girl committed suicide.

It is these incidents that make us wonder whether the gang rape in Delhi is meant to be a message to all youngsters not just to not venture out in the dark but to not venture out with male companions. It is the same message that the parents and the community give their daughters. It is the same message that the moral brigade has been communicating through the raids on young couples in Mumbai under the direction of Maharashtra’s Home Minister R R Patil, who has now recommended the death penalty in rape cases. Perhaps he and most protesters out on the streets in India today are unaware that around one-third of all rape cases are filed by parents against the boy concerned when their daughter exercises her sexual choice and elopes. Such cases will only increase in the years to come as the recent enactment of the Protection of Children from Sexual Abuse Act has raised the statutory age for consent to sexual intercourse from 16 to 18 years and all youngsters who are sexually active are prone to harassment through collusion of the family and the state. These types of cases have led to the use of phrases like “genuine cases” and “false cases” among the police, prosecutors and judges. The recent Act has also shifted the burden of proof to the accused which is an extremely dangerous proposition in the context of human rights and rights of the accused within the criminal justice system.

Male Role Models

There is another question which is worrisome. Is it possible to examine this issue only within the framework of men versus women or, more particularly, middle-class women versus lower-class men? The girl was not alone, she was travelling with a male companion. He, too, was beaten and thrown out. If he had lost his intestines in the scuffle that followed, what would the public response be? What about the death of a young 19-year-old boy of Mumbai who lost his life while protesting the lewd comments being passed against a girl from his housing society? Should not his murder be avenged by awarding the death penalty to the accused? In another well-publicised incident that took place about a year ago in Mumbai, two young men, Keanan and Reuben, were brutally and fatally attacked when they protested against the sexual harassment of some girls in their group. Why is the loss of their lives less gruesome a crime? These men were also role models to be emulated by the youth of today. We desperately need such bravehearts who will stand up for women’s dignity in public places because in most cases the public just looks on while the girl is molested, stripped, raped and dragged naked in full public view. So it is not just women, but also men who defend women, who are subjected to brutal attacks.

Wrong Popular Perceptions

Despite all the positive impact of the campaign revolving it, the Delhi gang rape incident does not foreground the different types of violations that take place in our society. Rather, it reinforces the popular perception that rape takes place in lonely places, late at night, by strangers and that rapists are brutes or psychopaths who deserve to be hanged. But most rapes take place in the privacy of our homes, in our schools. Rapes by family members are seldom reported. They come to light only when the girl is found to be pregnant and by then it is far too late to have an abortion. The girl is then sent to a government run shelter home where she languishes while her child is put up for adoption. The risk of sexual abuse is even greater in these homes as some recent incidents that have been reported in the media indicate.

In a case decided by the sessions court in Mumbai last month, the father had been raping his daughter for two years. When the child confided in her mother and the mother confronted her husband, she was silenced by threats of desertion. It was only when the maternal uncle was alerted that the complaint was registered. The case resulted in conviction only because the uncle testified, but the mother refused to come to court and depose. In yet another case of a father raping his daughter, the mother attempted to register a case thrice and each time was sent back as the police refused to record her statement. Finally, the case could be registered only after the intervention of a local social worker. What should be the punishment for fathers who violate the most sacrosanct fiduciary relationship of trust and sexually violate their helpless daughters? And what should be the punishment for those who through their silence or negligence abet the crime?

The infamous ruling of the Supreme Court (SC) in the Mathura rape case in the late 1970s became the catalyst for a nationwide anti-rape movement. The SC had acquitted two policemen who had raped a 16-year-old illiterate tribal girl inside the police station while on duty on the ground that since there were no injuries on her body she might have consented to the sex. Further, the Court contended, since the girl had eloped with her boyfriend and was not a virgin, she could not have been raped. The campaign that followed resulted in bringing some changes in the archaic laws; the most significant being the mandatory minimum punishment of seven years which could extend to life imprisonment. It was perceived that it would have a deterrent value. But when we examine the graph of reported cases since 1983 (when the amendment was introduced) there is a steady increase in reported cases. It is obvious that the amendment has failed to act as a deterrent. Worse still, conviction rates are so low as to be negligible. Even in these cases, the trial courts seldom award the statutory seven years and give as low as three years or at times, just six months. Even these result in acquittals at the appeal stage.

The conviction in the well-publicised Shiny Ahuja rape case in Mumbai is not the norm, but an exception. In this case despite the complainant’s retraction, the trial court convicted the accused based on forensic evidence. There was a contradiction. While the actor denied that there was ever any sexual intercourse between him and his domestic help, his defence in court was that it was consensual. The judgment was condemned by Mumbai’s socialites. A systematic media campaign was launched to clean up the actor’s public image. And it is highly plausible that the conviction will be set aside in the appeal which is pending before the high court. Three other high profile rape cases in Mumbai – one involving the son of an industrialist who was charged with raping a 52-year-old divorcee in his car in his factory compound in the early hours of the morning and in which the victim suffered a fracture of her wrist while resisting, the gang rape of a student of a prestigious social work college in Mumbai and the rape of a 12-year-old ragpicker by a policeman – all resulted in acquittals, either in the trial courts or in the appeal courts.

The retraction in the Shiny Ahuja case brings to the fore the important issue of witness protection and compensation for the victim. Cases are “settled” before the victim can depose, by the relatives at times with active intervention of the police, sometimes even with the knowledge of the court. We do not have any mechanism to protect a poor victim and other witnesses against the onslaught of a powerful rapist from the time the complaint is filed till the time of deposition in a trial court which may take about a year or two at best. There are many constraints that work against a girl from deposing in the court which calls for a strong witness protection programme in order to ensure convictions.

Fear of ‘False Cases’

The trauma of rape and the stigma caused by it usually forces poor families who file complaints of rape to change residences to protect their wards from the stigma of rape. In most cases, the abuse is detected only when these young girls in their early teens are taken to the hospital to investigate delayed periods. The families are so poor that they cannot provide even the basic care to their child. They need financial aid and state support to overcome the trauma, the stigma and the adverse consequences of rape. But each time the issue of compensation is raised, the bogey of “false cases” is foregrounded to throttle the demand.

In Maharashtra, district boards were set up two years ago under the district collector with high level officials of the home, health, law and judiciary and women and child welfare departments’ along with non-governmental organisation (NGO) representatives to scrutinise applications for compensation, and the police were mandated to send in copies of the FIR along with medical reports. An amount of Rs 2 lakh was stipulated out of which Rs 20,000 is to be disbursed initially and the balance after the girl deposes in court and an amount set aside for medical aid, trauma counselling or skill training. But despite the grand “centrally sponsored scheme”, the central funds have not reached the state government and the victims wait in vain. This amounts to taking the most gullible and most victimised for a ride. No one wants to act because of the all pervasive fear of “false complaints”. One shudders to think how the family of the Delhi gang rape victim would have dealt with the medical bills if the case did not turn out to be a high profile one and the state administration had not been forced to step in as a face-saving measure. But then, is it wrong to expect this kind of state support to all survivors of sexual abuse?

The fear of “false complaints” is all pervasive within our legal system right from the time a victim tries to register the complaint to the time of the trial. All stakeholders: the police, the medical officers who examine the victim, the public prosecutors who are meant to defend her, the defence lawyers who are out to tarnish her reputation and the presiding judge who is supposed to be the neutral arbiter are plagued with this and constantly look for evidence of falsity on the part of the victim. If this is the present reality, one can just imagine what will happen if the punishment is raised to a minimum of life imprisonment and maximum of death penalty. Then even the few convictions which the judges award today will not take place, and every accused will be given the “benefit of doubt”.

Accountable to Women

Instead, what we need is a criminal justice system that works with responsibility, protocols for all stakeholders which are binding and most important, a periodic audit that ensure that the protocols are followed. This tedious process cannot be replaced by sensational measures such as death penalty and castration which may momentarily satiate the public thirst for blood, but will fail to have any deterrent impact at the ground level. What we need most of all is a clarion call to make our legal system accountable to the female citizenry in small but meaningful ways.

Economic and Political Weekly, Vol-XLVIII, No. 02, January 12, 2013, http://www.epw.in/commentary/no-shortcuts-rape.html


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