Getting away with rape

Nothing exemplifies this failure more than the abysmal conviction rate of rapists which, according to estimates, can be no more than 2 per cent. The fact that most rapists get away with their crime must be the main reason for its high incidence.

A closer look at the criminal justice system, right from the stage of registering such cases to the court judgements on them, reveal the flaws. Says Flavia Agnes, activist and Mumbai-based advocate, 8216;8216;There were big campaigns on violence against women in the 8217;80s, but what we got is really minuscule. Nothing has changed in court 8212; its proceedings continue to be weighted against women. Legal reform has been notoriously slow and, when it does occur, could work against women.8217;8217; Despite the Criminal Law Amendment Act of 1983 see box, the problems were quite patent.

As Agnes points out, procedures are long and harrowing, the investigative machinery is corrupt and the cross-examination of the victim humiliating, with a victim8217;s sexual history often used to undermine her evidence. Ratna Kapur and Brenda Crossman, in Subversive Sites, cites the Prem Chand vs State of Haryana case of 1989, in which the Supreme Court reduced the mandatory minimum sentence of 10 years imposed on two police officers found guilty of raping a young woman, Suman Rani, to five years. The court observed, 8216;8216;The victim Suman Rani was a woman of questionable character and easy virtue with lewd and lascivious behaviour8217;8217;. It concluded, 8216;8216;The peculiar facts and circumstances of this case, coupled with the conduct of the victim girl, in our view, do not call for the minimum sentence.8217;8217;

Women activists have pointed out that the system lacks a basic sympathy for the rape victim, and at every level 8212; whether at the police station, the courtroom, or society at large 8212; the already traumatised woman would have to contend with suspicion, hostility, if not downright misogyny. The problem begins right at the level of registering a case, with the police reluctant about lodging the complaint.

Since the crime is of a sexual nature, the forensic evidence produced through a doctor8217;s examination is crucial. Here, too, the reality is far from reassuring. Even when it is performed, it is so incompetently done 8212; there have been cases of the evidence being tampered with 8212; that proving that rape did occur becomes virtually impossible. In cases of mass rape, as the recent Gujarat riots revealed, pinning culpability becomes almost impossible. Agnes, who visited the Ahmedabad camps earlier this year, observes, 8216;8216;We tried to do affidavits for rape victims there. Not a single case could be filed when you are dealing with this crime at a mass level because of the lack of medical examinations and forensic reports.8217;8217; Such factors, compounded with legal expenses and lengthy court proceedings, dissuade women from seeking justice.

The most serious attempt to come up with a women-empathic law was made by the National Commission of Women NCW in 1993. Mohini Giri, a former chairperson points out, 8216;8216;We had hoped to change mindsets, through sensitisation courses for the police, for bureaucrats, for schoolchildren. Nothing seems to have come of that. We need to provide speedy and certain justice. We need to provide free legal aid and financial support for victims. Most of all, we need to provide a sense of self-confidence to them at a point of time when they find themselves destroyed, physically and mentally 8212; something that their families may be unable or unwilling to do.8217;8217;

The NCW8217;s 8216;Sexual Violence Against Women and Children Bill8217; broadened the definition of sexual assault, and specifically made note of the incidence of child sexual abuse and incest, while making procedural changes designed to render a rape trial less traumatic. The Bill is currently in cold storage but the debate on how to make the rape law more responsive to social reality goes on apace. In 2000, the Law Commission advocated changing the rape law to make it gender neutral, a controversial suggestion that many women8217;s groups have opposed. There are, however, two more areas of concern that have emerged by common consensus: rape within marriage and the abuse of male children in custodial situations.

Other than the social stigma, public apathy is the biggest problem. It is prevalent in Mumbai 8212; as evident in the local train rape story 8212; as much as in other metros. Says Kamala Bhasin, a Delhi-based social activist, 8220;Today, the very fact that the police runs helplines, and the media highlights these stories speak of a welcome change. Yet, society itself seems to be breaking us into smaller and smaller fragments. Meanwhile, social violence continues to grow, a violence directed at the weakest 8212; the Muslim, the Dalit, women.8217;8217;

with inputs from Chitra Subramanyam

8216;All other evidence is secondary to the victim8217;s statement8217;

Senior Public Prosecutor Afaq Ali Khan has handled several rape cases. In this interview to Kavita Chowdhury of The Sunday Express, he says that during trials often the prosecuterix victim turns hostile and the case falls through. But whenever the victim has supported the case of the prosecution, the accused has been convicted.

8226; How many of the rape cases that are pending trial in the sessions courts end up in convictions?
Mostly, the rape cases that come to lower courts are technically not rape, but just foisted as rape. For a sexual offence to be legally termed 8216;rape8217;, the act must have been committed against the consent of the girl or with one who is under 16. Most of the cases that come for trial are that of girls who have run away with a boy without the consent of their parents. In these cases, the girls8217; families lodge a rape charge against the boy.

8226; So you are saying these are not cases of rape?
The victim8217;s statement is of prime importance in rape cases. Sometimes, the victims deny before the court that any such offence was committed. Either due to compulsion or for some other pretext, they turn hostile and deny statements made before the police.

8226; What about cases where the perpetrator is unknown to the victim?
Only about two per cent of rape cases that come up for trial have a stranger as the accused. These are the rarest of rare cases. And most often that not, when the case gets to the trial stage, the victim disappears from the scene. This may be either because of the social stigma or because the victim has got married and therefore does not wish to depose in court.

8226; So, is the law helpless when the victim denies the case despite all evidence of rape?
That is so. While in murder cases, circumstantial evidence can prove the crime, in rape,since the primary evidence victim is alive, all other evidence is secondary to her statement.

8226; What would ensure conviction in a rape case?
As I said before, the No. 1 material witness in a rape case is the victim herself. She has to tell the true story and stick to it even when being cross-examined by the defence counsel. Mostly, cases fall through when there are contradictions in the victim8217;s statements issued before the police and before the court. The statement of the victim has to be corroborated by the medico-legal certificate of the victim. When the rape charge is corroborated by all the related evidence, then a conviction is certain. On an average about 25 per cent of rape cases end up in convictions.