A Case Against Apathy

Legal redressal for victims of sexual violence is still fraught with difficulties.

Written by Dipti Nagpaul D'souza | Published: December 15, 2013 5:29:21 am

Nothing in Sunita’s (name changed) tiny one-room ,that she shares with her mother,hints at her past life. The grey walls of the rented Reay Road residence in Mumbai are bare. A yellowed image of a god sits on the wooden altar in one corner. A dented steel almirah contains nearly all their belongings.

It’s perhaps intentional,given that the women left their hometown in Maharashtra in order to escape the trauma following Sunita’s rape three years ago. “The incident was bad enough; we didn’t know that seeking justice would cost us dear,” says her mother.

A single mother and a teacher,she had not hesitated in filing a police complaint when her then-minor daughter had been raped by two male friends. But it was not easy — the police kept trying to prove that the sex had been consensual and she was blaming the boys because her mother had found out. The investigation and trial would prove to be the beginning of a long and humiliating process. In a case that went on for nearly two years,the boys were acquitted for lack of evidence. By the end of it,the mother-daughter were just glad that it was over. They could no longer deal with it.

“That I had known the two accused was brought up over and over again and then I would be made to recount every detail repeatedly,” says the 18-year-old hesitantly. Unable to handle the cross-examination and the prejudices of court staffers,the girl would break down,fumble,sometimes even mix up facts.

Activists have,for long,campaigned against the inherent apathy in the system towards the victims of sexual crimes. There have been numerous incidents where neglect on the part of various agencies of justice involved has not only unwittingly worked in favour of the perpetrators,but caused further trauma to the victim.

“The victim — often a minor — is usually made to wait for hours before the FIR is lodged,shunted from one police to another,or dissuaded from filing a report. During this period,they are pried upon,sometimes even exposed to the accused who intimidates them. None of this is in keeping with the newly introduced Protection of Children from Sexual Offences Act (PCSOA) 2012 guidelines or the Criminal Law (Amendment) Act 2013,” points out women’s rights activist and lawyer Flavia Agnes. She is also co-director at the Mumbai-based NGO Majlis,a legal resource centre,which has a programme for providing support to victims of sexual abuse.

Dharmendra Kumar,special commissioner of police,crime,Delhi,says,“We set up women help desks at every police station and appointed round-the-clock woman constables (after the December 16 incident). This has helped more women to come forward. Reporting of rape,molestation and eve-teasing has shot up drastically because more women are now coming forward.”

However,activists say the police is still not sensitised to the broader nature of sexual crimes that are now covered under the law,and the response is restricted to cases seen as “traditional acts of rape or extreme violence”. “The amendments needed a more sensitive understanding from the police,because the scope of crime became much wider. Unfortunately,misogynist perceptions continue to infiltrate into agencies meant to support victims. They still understand only old classic definitions of rape,” says Kavita Krishnan,activist,and politburo member of CPI(ML).

Delhi-based lawyer and human rights activist Vrinda Grover says improvement in reporting of sexual crimes is solely because of women,and has nothing to do with better functioning of systems. “More women are coming forward to report sexual crimes. But that is largely because women themselves are seeking accountability and redressal from the legal justice system,and not because the system has improved. The police still do not have any protocol that is displayed in police stations for handling sexual violence,in many cases it is still extremely difficult for women to register complaints,” she adds

There are loopholes within the judicial system too. For instance,the clause that says the victim’s identity should be protected and trials for rape cases should happen in-camera,is executed,but often the courtroom is emptied out only after the victim has been brought in. The trial alone can be stressful and daunting as was proved in the Shakti Mills case where the victim fainted upon being shown the pornographic video clips in court.

The outrage following the Delhi gang rape case a year ago has,however,effected some changes. The new rape law,introduced earlier this year,was a step in this direction as was the banning of the much criticised two-finger test on the victim. The law also does not give any “time frame” for report of sexual crimes,leaving no grounds for delay in reporting crime to be seen as a sign of complicity. “In cases of extreme violence,police action is usually prompt. But in the far more common cases of continued sexual harassment and assault,even senior ranking police officials question complainants about things like delays in reporting. There is always a suspicion over the complicity of the woman,” Krishnan says.

The law also states that the victim need not always be the complainant — anyone possessing the knowledge of the crime can file an FIR. It is,in fact,this clause that put Tehelka editor Tarun Tejpal behind bars.

In Mumbai,over the last one year,several reforms have been introduced and the state is now keen on filling up the gaps in the system. In September this year,the issues were discussed at length at a meeting between various stakeholders. The involved agencies in Mumbai — women and child development department (WCD),police,public prosecutors and public hospitals — came together for the first time in the hope of improving the situation.

A collaboration between WCD and Majlis,Rahat is a programme designed to provide support to survivors of sexual crimes. “A state-sponsored programme,it will extend legal assistance as well as social support to all victims from the FIR stage,” explains Agnes,who believes that change cannot be brought about unless the state takes responsibility.

Although in its initial stages,the Rahat team has helped Mumbai police draft a circular issuing strict guidelines to all its officials regarding handling of sexual crimes. These are in keeping with both PCSOA and Criminal Law (Amendment) Act,which makes it mandatory for the police to file an FIR when a sexual crime is committed and extend support as well as medical help. “Media and NGOs have been talking of sensitising the system for 30 years now,but it hasn’t worked. The only way to succeed is to make the various agencies perform the job and hold them accountable when they don’t,” says Agnes.

In a recent case,for instance,a girl who was being repeatedly sexually abused by her father was encouraged by her boyfriend to take legal action. The police extended their full cooperation and started the legal proceedings even as the victim was being persuaded by her family to withdraw the complaint. The girl eventually backed out under pressure,but it instilled in her the confidence that the system would support her.

This,however,also brings to light the problems that various agencies face when handling sexual crimes. “Not everyone wants to complain — like the victim initially in the Tejpal case. It can be due to family pressure or a reluctance to go through legal hassles,” says Agnes. It is important,therefore,to respect the wishes of the victim under all circumstances. “Every case reported may not be a sexual crime. It’s the moralistic approach of the system towards the girl that needs to change,” says Grover.

Agnes cites a recent case handled by Majlis where the underage “victim” got pregnant after consensual sex with her boyfriend. Officials at the public hospital where the girl had gone for consultation,filed a complaint with the police and the youth was arrested. “The girl came to us hoping we would get her lover released but the bail was continously denied even though she maintained her stand in court that it was consensual sex. Meanwhile,his family,which had agreed to their marriage,grew more antagonistic towards her. She delivered a baby girl and,eventually,the boy was released. But now wary of the system,she lost touch with the aiding agencies and nothing is known about what became of her,” Agnes says.

With inputs by Pritha Chatterjee

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