Rape victims & justice

Print edition : February 07, 2014

Handbook on New Anti-Rape Law: Based on New Criminal Law Amendment Act, 2013, By P.K. Das, Universal Law Publishing Co, New Delhi, 2013, Pages: 472, Price: Rs. 550.

Bitter Chocolate: Child Sexual Abuse in India, By Pinki Virani, Penguin Books, 2000 (with updated contents and a new cover), Pages: 245, Price: Rs. 350.

Courting Injustice: The Nirbhaya Case and its Aftermath, By Rajesh Talwar, Hay House India, 2013, Pages: 260, Price: Rs. 350.

Schoolgirls waiting to form a human chain to spread awareness about child abuse, on World Day for the Prevention of Child Abuse in Bhubaneswar. A file picture. Photo: Ashoke Chakrabarty

ONE of the outstanding contributions of the Justice J.S. Verma Committee Report on Amendments to Criminal Law, which was submitted to the Central government in early 2013, concerned the question of stigma attached to the rape victim. Members of Parliament referred to the December 16, 2012, gang-rape victim as jinda lash (living corpse) when she was battling for life. The committee, after interacting with a cross section of society, maintained that it did not share this perception. In Paragraph 32 of Chapter 3 of the report, it said: “We do not think the victim suffers a stigma. It is a stigma against society. The rights of women in the context of the Constitution are clearly intended to overcome all negative perceptions generated against them...We do think that the reiteration of the theory of stigma and shame has itself led to an ‘unintended’ diminution of the status of victim. In other words, the victims can and ought to recover like any other victims from an accident, but that is possible only when there is a due discharge of the functions by the state.”

In the subsequent paragraph, it made another pertinent observation: “The right to justice is a fundamental right under the Constitution and must not be earned out of a sympathy having regard to the social malaise which exists in society.... No woman in India must feel a sense of shame or stigma in the event of sexual assault. She is entitled to the redressal of that injury and that offence and she is, therefore, statutorily and constitutionally capable of access to the rule of law.”

The Verma Committee is credited with introducing the much-required sensitivity to the public discourse on rape and sexual assault against women, but instances of commentators and stakeholders still following the old ways of understanding the subject are not uncommon. The degree to which we succeed in snapping the link between shame and honour and the crime itself, will perhaps indicate the seriousness and sincerity of our debate. The three books under review, if read in the context of the post-Verma Committee report, will leave the reader with different impressions.

The first book, Handbook on New Anti-Rape Law, is useful in documenting the legislation on the subject, but unfortunately it is unable to break the link between the shame-honour theory and the crime in its precepts. The very first sentence in the Introduction says: “Rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by sheer willpower that she rehabilitates herself in society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime.”

As the Verma Committee observed in Paragraph 38 of Chapter 3 of its report: “When a woman complains of rape, it is not the physical part of the woman which is directly the focus of attention. It is the offence and the offence against the bodily integrity of the woman as a person which is the offence in question. We, therefore, think that we need a woman to be viewed as a whole and not as a physical centre of sexual congress. At the same time, it must not be viewed that a woman, while making a complaint, is in any way acting less honourably or in any way disturbing what is considered as the repository of honour of the family, community and others.”

In Paragraph 39, it was specific: “An offence against a person is very different from offence against a community. We think that there has been a completely erroneous connection which is being made between a woman and a community. In other words, we feel very strongly that an assault on a woman is an assault on the person of the woman.”

The Handbook, which is dedicated to the memory of Justice Verma, has a chapter with excerpts from the Verma Committee report. Yet, by missing the distinction between the rape victim and the community, one wonders whether the book correctly reflects the essence of the report. Compilation of case law and the legislation on the subject is one thing but readers expect more than that; they look for the author’s critical perspective, which is missing in the book.

Shame-honour theory

Rajesh Talwar, the author of Courting Injustice: The Nirbhaya Case and its Aftermath, studied negotiation at Harvard University, human rights law at Nottingham, and law and economics at Delhi University. He has worked for the United Nations on legal and justice-related issues in Somalia, Liberia, Kosovo, Afghanistan and Timor-Leste. Before his stint with the U.N., he practised law and taught the subject at Delhi University and Jamia Milia Islamia.

It is difficult to infer from the book whether the author shares the Verma Committee’s plea to break the nexus between the shame-honour theory and the crime of rape. The book, which is a critique of the committee’s report does not discuss this particular aspect.

Does the compliance of the requirement that the media should not disclose the identity of a rape victim endorse the shame-honour theory? The Verma Committee does not identify the victim of the December 16, 2012, gang rape in Delhi but nevertheless calls her Nirbhaya, the name by which sections of the media referred to the victim. But the committee does not, in any case, suggest that the legal requirement not to identify the victim stems from the shame-honour theory.

Yet, there is one sentence in the book, which perhaps suggests that the author, too, is unable to break the distinction between the stigma attached to the rape victim and the crime itself. He defends the principle of not disclosing a victim’s name as a sound one because aside from the trauma of rape itself the girl is traumatised by the stigma attached to rape (page 37).

Section 228A of the Indian Penal Code (IPC) makes it a punishable crime (up to two years of imprisonment and liable to fine) to disclose the identity of the victims of rape or related offences, if there is no authorisation to do so in writing from the police officer investigating the case, or the victim or her parents if the victim is dead or is a minor or is of unsound mind. The author agrees that no law can prevent a person from being stigmatised but adds that laws can certainly help protect girls from being discriminated against. A thin line separates stigma and discrimination, and it will require extraordinary courage on the part of the victim or her family and her support groups to resist both.

The author is of the view that the Supreme Court was insensitive, even regressive, in the attitude it adopted in dealing with several cases of rape or sexual assault on women, and is critical of the Verma Committee’s report for its silence on the court’s insensitivity in handling rape cases except the Mathura case. His discussion of a few such cases is very helpful.

In the Mathura rape case, the Supreme Court acquitted the two accused police constables, who had been convicted and sentenced by the High Court, on the plea that the victim had not suffered injuries, the story of the teenaged labourer girl having put up stiff resistance was false, and the alleged intercourse was a peaceful affair. Following nationwide uproar, custodial rape was included in 1983 as an instance of aggravated rape in which the burden of proving the consent of the victim was imposed on the accused.

Previously, that is, before the Mathura rape case went to court, any negligent omission or intentional exaggeration by the woman in narrating the incident of rape was seriously frowned upon by the courts, and in most instances discarded as false and untrustworthy.

Reviewing the legal reforms post-Nirbhaya, the author is critical of raising the age of consent from 16 to 18 years, saying it is a betrayal of the wish of young women for greater autonomy over the use of their body. The author also makes the point that lawmakers are over-focussed on women only as victims and not as potential sex crime perpetrators and, therefore, support the use of gender-neutral expressions in laws. He has a minor disagreement with the Verma Committee’s preference for the term “rape” instead of a gender-neutral term such as “penetrative sexual assault” as defined in the Protection of Children from Sexual Offences (POCSO) Act, 2012, as in his view, this resulted in the committee ignoring the need to distinguish between consensual homosexual relations and homosexual rape. Again, in his view, the committee could have stated that the anti-rape provisions could be applied where suitable to cases of homosexual rape.

Child sexual abuse

The last book under review, Bitter Chocolate: Child Sexual Abuse in India written by Pinki Virani in 2000, according to its publishers, has been updated with a new chapter on childhood sexual abuse, as suffered and recalled by adolescents. A number of case studies in the book reveal the extent of child sexual abuse in Indian homes and outside. The book also gives details of self-help books and helplines in major cities.

In the afterword, the author concedes that there is no final way of arriving at a statistic to indicate whether child sexual abuse is on the rise. The book should have been updated to include the effectiveness of the recent legal safeguards under POCSO to ensure non-disclosure of the child-survivor’s identity, ways to avoid insensitive questioning that can cause distress to the child-survivor, and separation of the child from the accused at the time of questioning. POCSO’s enactment may be a belated answer to the concerns raised by Pinki Virani but its adequacy to address the magnitude of the problem must be examined.

According to Rajesh Talwar, POCSO includes the latest trends and juristic thinking on the issue of the welfare of the children in the context of sexual violence against them. The new law defines a child as any person below the age of 18, which, according to him, is a flaw, even though it is consistent with the current age of consent, which has been raised from 16 to 18.

Sexual offences under POCSO are gender neutral in terms of the victim but not the perpetrator, who can only be a male. But Pinki Virani and Rajesh Talwar maintain that child sex abusers also include females.

Pinki Virani, a journalist and a social activist, was recently in the news for filing a public interest petition in the Supreme Court challenging the presidential commutation of the death sentences of those convicted and sentenced in child rape cases into life sentences. Although the Criminal Law (Amendment) Act, 2013, makes death penalty one of the options before a judge while sentencing an accused convicted of an aggravated sexual assault, or leaving the victim in a persistent vegetative state or an accused convicted twice for rape, death penalty is not mandatory in child rape cases. Therefore, Pinki Virani’s petition, which has been admitted for hearing, raises the important issue of presidential powers in deciding mercy petitions of convicts, whatever the gravity of their crimes. It may be constitutionally impermissible for the judiciary to create a separate category of prisoners accused of child rape and deny them the right to seek the President’s pardon on legally permissible grounds.

Rajesh Talwar is doubtful whether the death penalty can be an effective deterrent to such crimes. He seems to endorse Ashis Nandy’s stand that perpetrators of such violence have little control over their rage and instinctual drives and are immune to fears of punishment.

As Pinki Virani admits in her book, a court of law can only give a judgment, and not real justice to a child who has been abused sexually. And yet, she says, judgments must remain the final yardstick because justice, if it cannot be truly done, should at least be seen to be done.

There are several judgments which, according to her, refer to virginity as being a girl’s only virtue and marriage her only goal. No wonder, judges not sensitised enough to gender issues destroy the very notion of justice when they deal with cases relating to girl children and sexual abuse. If judges, as Pinki Virani alleges on the basis of her research, expect a little girl to speak loudly, clearly, without confusion in the court about the sexual abuse that has caused her so much hurt, then it clearly shows their insensitivity to gender justice.

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