What challenges do rape victims face in getting cases to court?
Recently, the 24-year-old rape survivor who had accused a Member of Parliament in 2019 of rape, set herself ablaze along with her friend, a 27-year-old man, in front of the Supreme Court of India.
Reasons for diminishing role of justice in rape cases
- Delay in justice delivery to victims: Victims and litigants are usually added to the design and procedure of courts, while judicial doctrine is built on their stories of social suffering.
- Criminal legal system often merely re-arranges a system of illegalities: The rape survivors are routinely pressurized to “compromise” illegally and turn hostile in trials, failing which they may be threatened or even killed.
- Lack of witness protection: The lack of a witness protection law in India makes rape survivors and witnesses vulnerable to pressure that undermine prosecutions.
- Biased and derogatory terms against victims: Some defense lawyers and judges still use language in courtrooms that is biased and derogatory toward sexual assault survivors.
- Lack of consensus among judges: In the 16 years between 2000 and 2015, 30% of death penalties awarded by trial courts ended in acquittals (and not just reduced sentences) when appealed in higher courts.
- Another 65% of cases saw the death sentence being commuted.
- Problems with retributive justice: While some argue that the state has a duty to support society’s retributive rage against those convicted of crimes such as rape, this argument is a slippery slope to allowing the death penalty for all sorts of crimes.
Why Victims are facing barrier to justice?
- Lack of challenge to state impunity: While the media discourse on rape is mostly spectacularised and sensationalised, state response also pathologises or criminalises anti-rape protest that challenges state impunity.
- The dominant response to demand death penalty does not challenge cultures of state impunity.
- Breakdown in routine policing: The increased use of the National Security Act in rape cases indicates a breakdown in routine policing, rather than assure us of gender sensitive policing.
- Lack of gender sensitization in policies: There is no judicial enquiry on why victims of violence are imprisoned on false counter cases.
- There was no change in judicial policy declaring that no rape victim would be arrested and imprisoned despite the outrage that followed the imprisonment of a rape survivor on a contempt charge at the height of the pandemic.
- Absence of Infrastructure: The obstacles to justice and dignity are compounded by inadequate health care, counseling, and legal support for victims during criminal trials of the accused.
- Resistance from police in filing FIR: The Human Rights Watch found that police did not always file a First Information Report (FIR), the first step to initiating a police investigation, especially if the victim was from an economically or socially marginalized community.
- In several cases, the police resisted filing the FIR or pressured the victim’s family to “settle” or “compromise,” particularly if the accused was from a powerful family or community.
- Health being a state subject: The state governments are not legally bound to adopt the 2014 guidelines because health care is a state matter under India’s federal structure.
- The Human Rights Watch report found that medical professionals, even in states that have adopted the guidelines, often do not follow them.
- ‘Tough’ criminal laws can target weaker sections: Multiple reports from India and elsewhere have shown that criminal justice systems mirror the biases of society, including against weaker sections who cannot afford expensive lawyers or to appeal their cases in higher courts.
Impact of Broken Promises of Justice in Rape Cases
- Victimization and re-victimization of people: It is devastating that India is having a dark legal history that mutely records that rape survivors are routinely killed or kill themselves in protest in front of police stations, courts and government buildings.
- More and more rape survivors, especially from marginalised communities, have been re-victimized and the imprisonment of victims of violence is on the increase in lockdown prisons.
- Social exclusion of victims: The women and girls who survive rape and other sexual violence often suffer humiliation at police stations and hospitals.
- The police are frequently unwilling to register their complaints, victims and witnesses receive little protection, and medical professionals still compel degrading “two-finger” tests.
- Inadequate Responses to Sexual Harassment: The Indian Penal Code was amended to introduce new offenses of sexual harassment, voyeurism, and stalking.
- Anecdotal evidence from Delhi and Mumbai suggests that these offenses are underreported to the police, and even where reported, the police fail to register FIRs or properly investigate these crimes.
- Stigma and Awareness Deficit: There are still far too many in India who is afraid to report sexual violence because of a combination of factors such as fear of being stigmatized, shamed, retribution from family and friends, and a criminal justice system that offers little protection to victims or witnesses.
- Lack of Victim Support Services: India does not provide any government support services where women, men, and children can report sexual or other forms of violence against them and seek support to make decisions about whether to file criminal complaints, and cope with its ramifications.
Recommendations for Judiciary to protect rape victims
- It is necessary to expand existing training for trial and appellate court judges and public prosecutors on the rights of survivors in cases of sexual violence to include training on provisions under the sexual violence acts.
- The apex court must ensure that the magistrates and judges are aware of the 2014 medico-legal guidelines.
- The judiciary must establish guidelines on in-camera trials and ensure that judicial officers participating in all fast-track courts and courts dealing with violence against women and children have appropriate training.
- The Judiciary must establish standard operating procedures for prosecutors that better meet the needs of survivors, including meeting the survivor in advance of the trial and briefing her about trial proceedings.
Road ahead
- Access to Therapeutic Care and Medical Examination: Indian law requires doctors to provide first aid or medical treatment, free of cost, to women and girls who approach them and disclose rape.
- The medical examination not only serves a therapeutic purpose, but also helps gather possible forensic evidence.
- Strictly following guidelines related to medical examination: In 2014, the Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence to standardize healthcare professionals’ examination and treatment of sexual assault survivors.
- The guidelines provide scientific medical information and process that aid in correcting pervasive myths.
- There is a need to strongly challenge this stereotype of the ‘destroyed’ woman who loses her honour and who has no place in society after she’s been sexually assaulted.
- The Indian central and state governments should:
- Enforce the Criminal Law (Amendment) Act 2013 and policies announced to help survivors of sexual violence.
- Ensure regular trainings and refresher courses to sensitize police officers, judicial officials, and medical professionals on the proper handling of cases of sexual violence.
- Enact a witness protection law, which includes protection for women and girls, and their families, who face retaliation for filing criminal complaints of sexual violence.
- Adopt and implement the Ministry of Health and Family Welfare Guidelines and Protocols for Medico-Legal Care for Survivors/Victims of Sexual Violence.
- Ensure that one stop crisis centers are properly equipped and accessible, establish a monitoring mechanism for these centers, publish accountability reports periodically, and ensure the Nirbhaya Fund disburses funds transparently.
- Work with women’s rights groups, civil society organizations, urban planners, and others to develop and implement concrete plans within a fixed timeline to make public spaces safer and more accessible to women.
- Central Victim Compensation Fund: The concerned ministry should announce that it would set up a compensation fund under the Nirbhaya scheme to assist child victims of sexual crimes.
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