No Shortcuts on Rape
Make the Legal System Work
By Flavia Agnes
Now that the gang rape victim christened as “Nirbhaya”, “Brave-heart”, “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 some-thing 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 un-fortunately 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 cut-ting 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 con-sent 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 con-text 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 beat-en 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 brave hearts 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 contra-diction. 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 rag picker 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 com-plaint 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 de-posing 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 fore-grounded 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 ad-ministration had not been forced
to step in as a face-saving measure. But then, is it wrong to expect this kind of state sup-port
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 can-not 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 account-able to the female citizenry in small but
meaningful ways.
(Source: Economic & Political Weekly)