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Gendered violence and biases in the criminal justice system

By Vrinda Grover

Suspicion and contempt for female victims of sexual violence permeates the criminal justice system. A victim of rape or molestation, for instance, must pass the test of the ‘good Indian woman’, and the ‘good woman’ cannot be one who wears revealing clothes or goes out late at night

Certain forms of sexual violence against women are still not prohibited, proscribed, penalised or even condemned. An attitude of suspicion and contempt for the victim/survivor of sexual violence permeates the criminal justice system. We readily castigate the police for their biased and sloppy investigation, but there is very little comment on how lawyers or the judiciary respond to this issue. Perhaps this is because not many people are conversant with the actual functioning of the legal system and the conduct of trials.

I conducted a training programme for the legal aid panel of lawyers on the rape law. It was a largely male group, with women constituting about a tenth of its strength. I began by asking them how they understood the growing number of rape cases that came for trial. Almost 90% of these lawyers promptly retorted that most of the cases that came to court were false; that the women were lying about rape. This was the near-unanimous answer, at a time when there is a high-decibel discussion going on about the severe and widespread sexual violence faced by women across the country.

Women in Guwahati protest the sexual assault of a young girl by a mob

But all these reports about women saying they feel unsafe, insecure and vulnerable, is there no truth to them, I probed. The lawyers replied: “Women are filing so many false cases of rape, dowry, domestic violence.” I drew their attention to the fact that, according to official records, a large number of minor girls were being sexually assaulted. This was conveniently sidestepped with the reply: “Yes, those children are not lying, but such crimes are committed by psychopaths -- that is a separate category altogether.” The rest of the cases of rape are false, maintained the lawyers.

These are views held by practising lawyers who know the law and legal system and are familiar with its intricacies and manipulations. I moved the conversation to a related aspect and asked them how easy it was for any person, particularly for a woman, to walk into a police station and have an FIR registered. The lawyers readily agreed that the police were corrupt and often refused to register the complaints of ordinary people. Then how come all these women were managing to get their false cases registered? Grudgingly, a few conceded that not all allegations of rape were concocted and the system is to an extent biased against victims of sexual assault. But the majority continued to hold that most cases of rape were false, as those women wanted/agreed to/invited/asked for ‘sex’, and later filed false complaints of rape. This is the mindset that the survivor of sexual violence seeking justice has to combat in court. 

A woman victim is likely to find it less intimidating to narrate her evidence before a woman judge during the trial. However, a woman judge is not necessarily more sensitive or cognisant of the dynamics of sexual violence. Despite judgments of the Supreme Court to the contrary, judges of the trial court, including women judges, look for injuries on the victim’s body as signs of non-consensual sexual intercourse. It is extremely difficult to get a conviction in a case of date rape or where the woman or her conduct does not conform to that of the ‘good woman’. The test that the survivor of sexual assault has to pass is not that of a ‘reasonable woman’ but rather that of the ‘good Indian woman’.

Here I am talking only of rape cases -- the gravest of sexual crimes. But we have seen decisions of trial courts setting the rapist free and advising the rape victim to marry the accused rapist, to “forgive him” as he has offered to marry her! Clearly a court that passes such an unlawful order does not view rape as a crime at all, certainly not one that violates the woman’s bodily integrity and dignity.

If this is how the legal system responds to grave crimes of sexual violence, what happens when we look at other forms of sexual assault, like molestation or even sexual harassment? It is simply not part of our social understanding or judicial theorisation that women have the right to bodily integrity, sexual autonomy and dignity.

Recently, I heard many people say that they were “shocked” by the incident of July 9, 2012, when a mob sexually assaulted a young girl on a busy Guwahati road. Why the shock and surprise? Such incidents of grave sexual assault occur with alarming regularity across urban and rural India. This case was highlighted because of the video footage that was telecast. The full recording shows the brutality and brazenness of the sexual assault committed in full public view. But if you sit down and talk to people, you do not hear much outrage. The inquiries are all about the girl victim. “Why was the 16-year-old in the pub?” “Was she drinking?” “Who was she with?” “Who were the boys with her?”

So I am not sure that we as a society condemn the sexual assault of women. This definitely encourages the impunity with which sexual assault is committed and the accused acquitted. Let us not forget that impunity is not new for Assam and the Northeast, which is ruled by AFSPA and not the Constitution. The impunity enjoyed by the Assam Rifles when they raped and killed Manorama in Manipur, the disappearances and extrajudicial killings in Assam and Nagaland, are now embedded and entrenched there. We were complicit in condoning that impunity, and it has come back to haunt us now.

In the 1980s, following a strong nation-wide campaign by the women’s movement after the Supreme Court judgment in the Mathura rape case (State vs Tukaram), the concept of custodial violence was introduced through Section 376 (2) of the Indian Penal Code, with respect to sexual violence. This amendment for the first time made a crucial link between state authority, control, exercise of power and sexual violence.

However, this category of custody and control needs to be enlarged now. In the ’80s, it was the police that was viewed as the main aggressor and therefore the custody regime in law enumerated police stations, jail hospitals, and women’s institutions as spaces where women were more vulnerable. These continue to be sites of violence, as is evident from the serious complaints of custodial sexual torture by Soni Sori whilst in custody of the Chhattisgarh police. But today, Kashmir, all of northeast India and large parts of central India are under the command and control of the armed forces and other security forces. Even the police dare not question, interrogate, or lodge an FIR against these security personnel. Serious complaints of sexual assault of women by security forces from these areas have never been addressed. The Shopian rape and murder of two Kashmiri women, covered up as a case of drowning by the CBI, points to the impossibility of even a fair probe and investigation in ‘disturbed areas’ under army rule. Interestingly, the recently notified Protection of Children from Sexual Offences Act, 2012 included the armed forces in the category of custodial violence. Similar amendments must be made in the IPC for women. Also, the law needs to acknowledge the specific targeting of women during communal, caste and ethnic violence.

The present definition and description of sexual violence in the law is not only inadequate it’s also regressive. The law, that is, basically, the IPC, only penalises the ‘penile penetration of the vagina’, which is rape; and ‘outraging the modesty of a woman’, which is molestation. But what is ‘outraging of modesty’? There is actually a case where it was argued that a seven-month-old baby girl did not possess modesty and so the same could not be outraged. Thankfully, the Supreme Court rejected this argument. That is exactly the problem with this kind of formulation. It is not a legal definition of a crime, but rather the expression of a subjective social opinion that actually burdens the complainant to measure up to a prescribed standard of conduct before the law will treat her as a victim. So, will a girl walking out of a pub, wearing a short dress, qualify as ‘modest’ at all? Has the police ever registered a complaint of a sex worker alleging sexual assault? The other problem is that all forms of sexual assault other than rape, regardless of their nature or gravity, are categorised as ‘molestation’ in law. From the insertion of a stick in the vagina, to stripping and parading women naked, to the pinching of a woman’s breast, it is all the same in law: an offence under Section 354 of the IPC. This is one of the reasons why the law today is so ineffective.  

Let us go back to the Guwahati incident of aggravated sexual assault. The young girl must be extremely traumatised and will need support in recovering. Regardless of the spotlight on this incident, the accused persons will be released on bail, immediately upon arrest. That is the law: Section 354 of the IPC (‘outraging the modesty of a woman’) is a bailable offence. There are no systems in place to provide psycho-social counselling or protection to the victim/witness. What does this signal to those who want to stand up and fight? Everybody is ostensibly outraged by the Guwahati case, but I am willing to wager that when this girl has to appear in court to give evidence -- I am of course assuming that the police will actually investigate the case and file a chargesheet against the accused persons -- she will find herself alone, except for a few women activists standing by her side. It is unlikely that the National Commission for Women will be there, or the Legal Services Authority, or a special public prosecutor appointed by the state government. None of these statutorily mandated and well-resourced institutions will have the time or the inclination to support the young girl and monitor the trial. Where is the short-term and long-term support which every survivor of sexual violence needs, particularly when she goes to court? And remember this is a very hostile legal process.

We often hear cries of ‘Hang the Rapist!’. This kind of rhetoric is very unhelpful. Even in pure pragmatic terms, we must understand that the more stringent the punishment the more careful the court will be in handing out a conviction. I recall attending a candlelight vigil when Dhananjoy Chatterjee was hanged in 2004, sentenced to death for raping a schoolgirl. My daughter and I carried a placard that read ‘Women Against Rape and Death Penalty’. Demonising a few will not make the violence disappear. It stalks every road, street, bus, office, factory, field, and home. We are dealing with a very complex and entrenched issue, which the law can only partially answer. Public hysteria against an incident of sexual assault is usually followed by the imposition of complete social control over women’s lives and their sexuality. When we seek recognition of bodily integrity, we also mean the sexual autonomy of women, including their freedom to choose their sexual partners. Sexual violence is intimately linked to the Indian fetishisation of virginity, the obsession with marriage,  segregation of the sexes and our notions of ‘good women’ and ‘bad women’.  

For over 20 years, the women’s movement has been asking for the law relating to sexual violence to be amended. But for the government it is not a priority issue, since women are not a votebank -- no political party is about to win or lose an election because of the high incidence of rape or sexual assault of women.

In 2010, when the complete subversion of justice by Haryana’s top cop, S P S Rathore, who had sexually assaulted and driven the young tennis player Ruchika Girhotra to suicide, came to light, the government in a typical knee-jerk reaction came up with the Criminal Law Amendment Bill, 2010. We in the women’s movement seized the opportunity, organised two national consultations and presented an alternative draft bill to the union home ministry. We were assured of a discussion. Of course we never heard from the home ministry again. It would seem that widespread sexual violence or the threat of it, which dictates the lives of all women and others in the country, is not a ‘security’ issue worthy of the home ministry’s time and attention.

Now that the Guwahati sexual assault has ignited some public debate, there are again some rumblings in the government. Of course, law reform will not make sexual violence disappear or even lessen it dramatically, and the prejudices and biases will remain, but right now we don’t even have a toehold to stand and fight. So the law on sexual assault definitely needs to change, and this would be just the beginning of the battle. There are many other factors that come into play, like education, the media, trainings, socialisation, and so on. The question is, when there is so much law-making going on in the country, why does neither the government nor any other political party have the time to amend laws which impact the very existence of women?   

In early-August, we learnt from the newspapers that Cabinet had approved a gender-neutral sexual assault Bill. This is the Criminal Law Amendment Bill, 2012. Neither the contents nor the concepts and principles underlying this Bill have been discussed with women’s groups or any others. So much for the government’s avowed principles of transparency and democratic pre-legislative consultation. After hectic activity, we were able to secure a copy of the Bill from the government.

There are many serious concerns with this Bill, which seems to have been hastily put together without an understanding of the issues involved.

Firstly, it is encouraging to see that our longstanding demand to enlarge the crime of penetrative sexual assault beyond the present definition of rape, that is, peno-vaginal penetration, is reflected in the inclusion of other forms of non-consensual penetrative sexual assault. Sexual assault would include non-consensual penetration of other parts of the body by objects, etc, which is equally violative of a woman’s bodily integrity.

Secondly, the 2012 Bill does not view sexual crimes as a continuum of offences. Crimes of sexual violence must encompass the entire range, from penetrative sexual assault to sexual harassment. These offences must be formulated using the notion of violation of bodily integrity and dignity causing harm, injury, and degradation. The Criminal Law Amendment Bill, 2012, however, only codifies an expansive description of penetrative sexual assault and the only other provision dealing with sexual assault is the present Section 354, with the archaic and problematic phraseology ‘outraging the modesty’. What this means is that if the government were to pass the 2012 Bill it would bring about no change insofar as the Guwahati sexual assault is concerned. The incident would still be treated as a minor or trivial offence as it involved no penetrative sexual assault. It seems that two decades of written and oral communication with the government have been completely ignored.

Thirdly, new provisions defining crimes of sexual violence have to be added to the penal code. For example, except in the state of Madhya Pradesh, stripping, disrobing and parading a woman naked is not codified as a crime. This humiliating form of sexualised violence is routinely inflicted to degrade and humiliate women, particularly those belonging to disadvantaged groups or transgressing social norms.

Fourthly, as I said earlier, the categories of aggravated sexual assault need to be increased to include the armed forces and ‘coercive circumstances’ such as communal or caste violence.

Fifthly, the present definition of ‘consent’ has proved very problematic. Consent needs to be redefined anticipating the prejudices inherent in the system to exclude the interpretation of the victim’s conduct as consensual. It is very disappointing that there is no mention of the changes required in medical examination of victims of sexual assault, or the introduction of procedural amendments that may support a disabled victim/survivor. Nor is there any reference to introducing a victim/witness programme, despite a report of the Law Commission and judgments of the Supreme Court recommending this. The Bill is also completely silent on reparative justice for victims and survivors of sexual assault. Indian law must recognise reparation as a right of the victim, without any link to criminal trials and conviction.

Lastly, the most radical departure that the 2012 Bill makes is to introduce a gender-neutral sexual assault law. What this means is that, under the 2012 Bill, both men and women can be victims and perpetrators of the crime of sexual assault, as now defined. This requires serious deliberation. My view is that the law on sexual assault could be gender-neutral insofar as the victims of the crime are concerned. There is increasing evidence that not only women but others too, including transgender persons, are subjected to sexual assault. However, I do think that the accused/perpetrator should be gender-specific, that is, only men can be accused of sexual assault. Neither experience, nor data, nor studies in any way demonstrate that women are perpetrators of sexual assault. On the other hand, the proposed gender-neutral definition of aggravated sexual assault merits our serious consideration. We cannot deny the participation of women in inciting, abetting and conspiring to commit sexual violence, particularly in times of communal pogroms and caste violence. Perhaps when a person -- man or woman -- occupies a position of state power or other forms of authority, it is power that is determinative of their actions, and the gender identity of the perpetrator is subsumed under this exercise of power, privilege and dominance.

A last issue that must be mentioned here is Section 377 of the IPC, which criminalises homosexuality. The 2012 Bill makes no mention of it. The Delhi High Court has already read down 377 of the IPC and the matter is awaiting judgment in the Supreme Court. Now that a specific law has been passed for child sexual offences, and if the victim of sexual assault is made gender-neutral as proposed by the 2012 Bill, then there really can be no rationale for retaining 377 in the penal code.

Given the deep and abiding biases women face within the criminal justice system, it is only to be hoped that the government shows seriousness in addressing them. Is that too much to ask for as citizens?

(Vrinda Grover is a Delhi-based lawyer working on issues of human rights and impunity. She is National Legal Advocate for the International Commission of Jurists. She has represented survivors of the 1984 anti-Sikh pogrom, the 1987 Hashimpura police killings and the 2008 anti-Christian attack in Kandhamal)

Infochange News & Features, December 2012