What difficulties do disabled women face in accessing the legal system and navigating the trial process? And what are the consequences for them of making sexual assault gender-neutral for perpetrator and victim?
For the first time in the history of sexual violence law reform in India, issues pertaining to disabled women are being flagged as important items on the reform agenda. Sexual violence against disabled women is rampant, both within the supposedly safe zone of the ‘home’ -- be it familial or custodial -- and without. A small number of cases manage to get reported and legal actions are initiated. But most of these cases that reach the courts end in acquittal. Some of the reasons behind the low rate of conviction are common to all rape cases: faulty investigation by the police, biased conclusions reached based on medical examination of the victim and the accused, general attitude of distrust towards the victim and so on. But there are also factors that are specific to the cases of disabled women, such as not recording the testimony of the victim during the trial or recording the testimony without following the procedure laid down in law, which weaken the prosecution case at the appellate stage and result in acquittal.
The Justice Verma Committee, constituted by the central government to look into sexual assault law reform after the Delhi gang-rape and murder last December, gave many of us working on these issues an opportunity to place some of these concerns before the government. The committee responded positively and a large number of its recommendations addressed difficulties faced by disabled women in accessing the legal system and navigating through the trial process. Among other things, the committee recommended that the assistance of interpreters or special educators be taken at the time of recording of the complaint by the police and also during the trial, that the process of identification of the accused be videographed and that disabled women be exempted from recounting their testimony once again at the time of cross-examination in cases of sexual assault. The recommendations also addressed issues of sexual abuse within institutions for the disabled and suggested oversight mechanisms for both state and privately run institutions. The recommendations of the committee were welcomed by women’s groups and disability groups, including the ones that we are associated with.
However, when the government hurriedly introduced the Criminal Law Amendment Ordinance just three weeks before the upcoming session of parliament, we were faced with a dilemma. The ordinance, which was promulgated purportedly to give effect to the recommendations of the Verma Committee, incorporated a majority of the disability-specific ones. But longstanding demands made by women’s movements such as recognising marital rape, rape by security forces, compensation for rape victims, rejection of the death penalty as a punishment and such others, which were recommended this time around as well, were left out of the ordinance. As activist and researcher respectively, we were familiar with the travails of disabled women within the legal system in rape cases. Hence we were acutely aware of the relevance of the disability-specific clauses in the ordinance and were happy to have been part of the process which had led to those changes. But we were also politically aligned with the women’s movement and thus found it difficult to endorse the ordinance, which had left out issues which were fundamental to reconceptualising sexual offences in a manner that protected the rights of victims of sexual violence.
Leading from the personal/political dilemmas regarding our position on the ordinance, we wondered if the disability-specific recommendations were so readily accepted by the state because disability was seen as a ‘safe’, sympathy-inducing issue that posed no threat to the established orders. Demanding that marital rape be recognised as an offence on the other hand, definitely threatened the gendered/sexualised ordering of heterosexual marriage and family. Was this the reason, we wondered, why the two movements rarely spoke to each other in the course of the sexual assault debates, although they raised similar questions pertaining to the body and violence, power and vulnerability? We also wondered whether the predominantly service-providing nature of the disability sector was in any way responsible for it being viewed as a ‘safe’ issue. If, for the state, disability was a ‘safe’ issue and gender a ‘disruptive’ one, then what did it mean for movement politics -- the business of building alliances and solidarities across sectors while engaging with the state? And at a much smaller level, what did it mean for our own work where we try to think through both these axes of power and vulnerability?
While we still do not have clear answers to any of these questions, we want to flag some cautionary notes on sexual violence against disabled women and the legal response to the same. Protecting the rights of the disabled against sexual assault requires us to think beyond provisions for interpreters and special educators, and engage with the domain of power and sexuality as well. In the context of sexual assault law reform, one issue that has created sharp divides between the state and women’s rights groups, women’s rights groups and queer and child rights groups, and amongst women’s rights groups as well, is the proposition of making sexual offences gender-neutral. In the year 2000, the 172nd Report of the Law Commission mooted the idea of substituting the words ‘man’ and ‘woman’ in Sections 375 and 376 of the Indian Penal Code with the word ‘person’ so as to bring instances of same-sex sexual assault and sexual assault on male children by adults within the scope of the law. The idea was rejected by a wide section of the women’s movement which argued that sexual offences took place within a framework of gendered power relations and the legal system which tried these offences was heavily biased against women. These realities, it was argued, could not be wished away just by changing words in the law. Similarly, a number of lesbian women’s groups expressed concerns that in the absence of any affirmative legal recognition of same-sex relationships, a gender-neutral rape provision could be used by disapproving families to lodge false complaints against same-sex lovers.
In the last 12 years, several developments have taken place: decriminalisation of adult same-sex sexual acts by the Delhi High Court in 2009, greater public awareness and discussion about child sexual abuse, and much more documented evidence of sexual violence against gay, transgender and transsexual persons. With the result that by the time the government introduced the Criminal Law Amendment Bill in June 2012, there was agreement on certain things among the groups involved in these debates. Thus most groups agreed that victims of sexual assault must be defined in a gender-neutral manner so as to provide protection to men and transgendered persons, in addition to women. But the perpetrator should be kept as male alone, as, making the perpetrator gender-neutral would weigh heavily against women. Thus the 2012 Bill, which proposed gender-neutrality with respect to both the victim and the perpetrator, was opposed by women’s groups as well as some queer groups.
Cut to 2013, and the Verma Committee recommended that rape be retained as a gender-specific offence and provided separately for same-sex sexual assault. However, despite strong opposition, the ordinance stuck to gender-neutrality with respect to both the victim and the perpetrator, and till the time a new Criminal Law Amendment Bill is introduced and passed to replace the ordinance, it remains the operative law.
Surprisingly, disability groups have not been part of these debates, though making sexual offences gender-neutral clearly has consequences for disabled women. A stereotypical view of disabled women, particularly those with intellectual or psycho-social disability, is that they are unable to control their sexual urges (1). Such a view, historically propagated by the medical establishment, is prevalent among the police, doctors and judges. In the course of handling cases of sexual assault on disabled women, we have often heard the authorities sympathising with the accused based on the belief that ‘such women’ are prone to making sexual advances on men, and later charge them with sexual assault. In 2001, in a case where a speech- and hearing-impaired girl was raped by two policemen inside a prison van in Kolkata, the officer-in-charge had said to one of us that activists should not follow up such cases. When asked why, he said it was common knowledge that disabled girls were ‘sex starved’ and it was the girl who had in fact attacked the policemen. More recently, in the course of inquiring about a case of sexual assault on a female inmate by a male staffer at a Kolkata mental health institution in April 2012, the superintendent of the institution told one of us that he himself was scared of going inside the female ward for fear of being ‘molested’. He even asked us if there was any law to punish such women who first molest/tempt and then complain against hapless men.
In such a scenario where such attitudes are presented as medical ‘truths’ and where authorities put the blame on the victims and their lack of sexual discipline, what might be the implications of a gender-neutral rape law, where even women can be made assaulters and men their targets? Court judgments reveal how disabled women’s accounts of sexual assault are treated with suspicion by judges. For instance, in an Orissa High Court case the prosecutrix was deaf and mute and had not revealed to anyone that she had been raped; it was discovered only when she became pregnant. The court, while granting bail to the accused observed that a case of consent on the part of the woman could not be ruled out since (a) the woman was about 30 years old and still unmarried and (b) she could have at least communicated it to her mother knowing that her mother would naturally be anxious about her marriage (2). Again in Meeraj Alam vs State of Bihar, the Patna High Court kept on repeating throughout the judgment that ‘the victim girl was a grown-up lady who was unmarried because of such infirmity and that her younger sister was already married, having children from before’ (3). How were the marital statuses of the victims of any relevance here, unless the judges were trying to implicitly suggest that the women in these cases were sexually mature and yet were not ‘getting any’ because they were disabled and hence one should be suspicious of their motives? Earlier a standard defence by an accused in a rape case used to be that the woman (disabled or not) had consented to the sexual intercourse, which then would be proved with reference to her dress, conduct, sexual history, etc. Now, if the perpetrator is made gender-neutral, whenever a disabled woman complains of sexual assault, the alleged assaulter might file a counter-complaint that it was he who was raped by the woman. And we have good reason to believe that given the widely held view regarding disabled women’s hypersexuality, such counter-allegations by men will be believed and sympathised with, by investigators and adjudicators.
Thus gender-neutral definition of the perpetrator in sexual offences, as is currently the case, is not in the interests of disabled women. The government is preparing to introduce a Criminal Law Amendment Bill, 2013 soon to replace the ordinance. From media accounts, it seems the government is undecided about the formulation of the offence in the final Bill. But whatever it is, it is about time disability groups appreciated the implications of it, took a stand on the issue and made it known to the state.
(Shampa Sengupta is an activist working with disability and gender issues, based in Kolkata)
(Saptarshi Mandal is a legal researcher based in New Delhi)
1 An equally prevalent stereotypical view is that disabled women are asexual
2 Deepak Mahapatra vs State of Orissa, 107 (2009) CLT 93
3 2008 CriLJ 4384
Infochange News & Features, March 2013