Kalpana Kannabiran, “Rethinking the law on sexual assault”

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“Human rights groups combating sexual assault, women’s groups and groups working on child rights have come together to reflect on the extent to which the proposed Criminal Law Amendment Bill 2010 addresses concerns on the ground.”

…”Broadly, rather than viewing ‘sexual assault’ as a mechanical substitute for ‘rape’ under Section 375 of the IPC, the effort of rights groups has been to think through the feasibility of formulating a chapter on sexual violence/atrocity that will define a range of such violence in a manner in which the focus shifts from the penetrative logic of definitions hitherto used to the assaultive nature sexual violence. Effecting this shift has implications for procedural law and the law of evidence as well — carefully calibrating the shift in burden of proof and eliminating the two finger test, for instance — both of which are being examined alongside the penal code provisions, with a clear understanding that procedural and evidentiary guarantees upholding universal human rights standards will not be derogated in the course of redefining the law on sexual assault.”

Kalpana Kannabiran, “Rethinking the law on sexual assault,” The Hindu, June 3, 2010.

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Changes in law on rape and sexual assault: Special TNIE coverage

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The New Indian Express has devoted three pages of its magazine section to the proposed changes in the Indian criminal code sections that pertain to rape and sexual assault.

We are proud to say they have also been Prajnya’s partners in the 2008 and 2009 16 Days Campaigns against Gender Violence.

Check out the stories in the section:

Overhauling definition of rape, May 30, 2010.
Geeta Ramaseshan, What does draft bill lack? May 30, 2010.
New law will give voice to voiceless, May 30, 2010.

Unfortunately, these are the only links in the main paper and links on the TNIE site are not stable. We will try and find a way to make the articles available on this blog or our site.

Rape law loopholes

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Vinay Sitapati, Who’s afraid of an FIR? Indian Express, July 1, 2009.

The single-page version is available here: http://www.indianexpress.com/news/whos-afraid-of-an-fir/483499/0 and copied below in case the link is broken. It’s not very often gender violence is featured in mainstream op-ed pages! Bravo, Indian Express!

The rape of Mathura, a young tribal woman, by drunken policemen, marked the coming of age of feminist legal activism. The furore that followed the 1979 “not guilty” verdict led to Indian rape laws being eventually strengthened in four major ways: (1) coercion was to be presumed if sexual intercourse was proven in cases of gangrape and custodial rape (2) the raped woman would not be judged on the basis of her ‘character’ or past sexual history, (3) the victim’s identity was to be kept secret; proceedings were in camera and (4) improvements in medical methods can now conclusively identify the rapist. In the wee hours of Saturday in Shopian (Kashmir) 30 years later, these four changes came to nought. The body of Neelofar and her sister-in-law Asiya were found in a shallow stream next to a para-military camp. Their clothes were ripped off, the stream had earlier been searched, and the water-level was low. Yet the police put the death down to drowning and refused to register a first information report (FIR). In the post-mortem that followed, the doctors confirmed the police-version, and the forensic lab took forever to publish its findings. It was only when public anger that lit the entire Valley, that Chief Minister Omar Abdullah ordered an enquiry commission which has since confirmed sexual assault; several local officials have been suspended. Where the law failed, people pressure worked.

 Official callousness in Shopian is partly explained by the culture of impunity that prevails in conflict zones world over. The laws may be the same, but ‘war’ permits a certain license.

 

But the tragedy of Shopian is the tragedy of all of India. The failure to register FIRs is one of the biggest problems that raped women face. The number of rapes reported in India is large enough — 20,737 women reported that they were raped in 2007, about six a day. That’s an 800 per cent increase from 1971, when the National Crimes Records Bureau first began to compile rape statistics. But the real number is likely far higher. One widely quoted (though hard to verify) estimate is that for every one rape reported, 67 are not.

 

Botched medical tests are also deeply pervasive during investigations into rape in India. Outright fraud, like in Shopian, does happen: the post-mortem report of a Dalit woman gangraped in the Khairlanji massacre was famously tampered with. But more pervasive are the subtle humiliations that medical examinations inflict. Pratiksha Baxi, an assistant professor at JNU, has done extensive work on how the Indian legal system deals with rape cases. She points out “even when not fudged, the fact that the doctor does the ‘two-finger test’ to check whether the victim ‘is sexually habituated or not’ is using science to do what is directly banned — pass judgment on the sexual history of the raped woman.”

 

The publicity given to the victims in Shopian — with names and lurid descriptions of the injuries published — was perhaps necessary to establish the most basic of truths: that rape had taken place. But it points to something that Indian law ignores: the insensitivity of the process, making victim and family relive the nightmare of rape. In a Rajasthan trial last year, the cross-examination did this quite literally. As a shocked Rajasthan high court later described it, the raped woman “was made to lie on the bench available in the trial court to demonstrate her posture”!

 

The official response to allegations of rape against Shiney Ahuja offers a study in contrast. Unlike in Shopian, an FIR was swiftly registered and Ahuja taken in for questioning. The maid was medically examined; the report confirmed that sex had taken place. And unlike Shopian, three of the four post-Mathura changes in rape law did kick in. The identity of the maid has been kept secret. In sharp contrast to the appalling jokes on how came a lowly maid to refuse a film star’s advances, the police have made no such assumption — the character of the maid has (so far) not been a factor. Lastly, the advancements of science means that traces of Shiney’s DNA have been found on the maid’s body.

 

Action in the Shiney Ahuja case has perhaps been swift. The Chief Minister of Maharashtra has announced that the case will be tried in a fast-track court. But what about the other five women who reported rape that day in India? Is relentless public (and media) glare the only guarantee of speedy justice?

 

It is hard to form a sweeping indictment of our post-Mathura rape laws from just two cases. In fact, cold statistics indicate that while conviction for rape is low (in 26.4 per cent of cases), it is only slightly less than the conviction rate for violent crime (27 per cent). Besides, the charge sheet rate for rape is a super-high 94.6 per cent, meaning that virtually every complaint ends with the charges being framed by the police (the quality of investigation is quite another matter). Perhaps then, the solution is beyond the scope of any law. The lessons of Shopian — no FIR filing, fudged medical examinations and the public nature of the trial — require institutional sensitivity and honesty that no law can guarantee. The only guarantee of that, for raped women, hinges on one-off acts of paternal pity or the fury of the mob.

Rape as a weapon of war: Africa report

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Rape is widespread weapon of war in Africa: Expert, Hindustan Times, May 14, 2009.

Hundreds of thousands of women, girls and babies have been raped during 12 years of conflict in eastern Congo, victims of a weapon of war that almost always goes unpunished, an expert told U.S. senators Wednesday.

Similar atrocities have occurred in Darfur, the devastated western Sudan region where the United States said in 2004 that genocide was occurring. Women also have been targeted on a wide scale in recent decades during wars in Asia and Europe. The Senate Foreign Relations Committee heard testimony on the plight of women caught up in violence, emphasizing the Darfur and Congo disasters.

Melanne Verveer, the State Department’s ambassador-at-large for

global women’s issues, said 1,100 rapes are reported every month in the Congo battle area, “which is 36 women and girls raped each day.” Many are maimed by their attackers as well, she said. “Rape is employed as a weapon because it is effective,” Verveer said. “It destroys the fabric of society from within and does so more efficiently than do guns or bombs.”

Rape is an effective weapon of war because it breaks apart families and communities, Verveer said.

“In addition to these rapes and gang rapes, of which there have been hundreds of thousands over the duration of the conflict, the perpetrators frequently mutilate the woman in the course of the attack,” she said. “The apparent purpose is to leave a lasting and inerasable signal to others that the woman has been violated.” That, she said, in Congo as in many other cultures gives the victim “a lifelong badge of shame.” If married, she often is cast aside. If unmarried, she cannot find a mate.

Verveer quoted a report by the Human Rights Integrated Office in Congo that spoke of “a marked lack of seriousness” by law officers and magistrates toward raped females.

“Men accused of rape are often granted bail or given light sentences,” Verveer said. “Few cases are reported to the police, and fewer still are in prosecution. Of the 14,000 rape cases registered in the provincial health centers in (Congo) between 2005 and 2007, only 287 were ever taken to trial.

She said police lack proper training, and “there must be more focus on initiatives to strengthen the rule of law and to provide victims with access to justice while offering them protection throughout the judicial process.”

Verveer said Susan Rice, U.S. ambassador to the United Nations, plans to visit Africa with representatives of the U.N. Security Council. One of their visits, Verveer said, will be to a hospital in the eastern Congo, where one of only two doctors in the region who are capable of the kind of surgery needed to rehabilitate women and girls whose organs are maimed by their attackers. Democratic Sen. Barbara Boxer said the situation is “a shame on the human race.”

Republican Sens. Johnny Isakson and Bob Corker, members of the committee, said they plan to visit the Darfur area in about 10 days, heading first to Sudan’s capital, Khartoum.