Injustice with rape victims. - Seeker's Thoughts

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Injustice with rape victims.

Every month there are highlights about rape and honor killing, but somewhere we got habitual of reading such news and forget. Victim's story is a 'hot cake' to sell for the newspaper, but as time passes, who cares if the justice was served to those victims. 

Women are often raped by known people, and the crime does not stop as most people do not intend to hear them. 

Even though the law has been amended and there are legal methods to get justice, but deeply rooted gender inequality hinders the path of justice. 

There are some changes required at two levels, pre and post incidents. Society has to bring change in the attitude towards women and treating them like a sex object. While children are young, they should be taught to respect women, and not to rape women in any case. 

Once any mishap occurs, the proper punishment should be awarded by the court. However, the injustice with the rape victim still exists in society. 

According to the Livemint data, 99% cases of sexual assaults go unreported, government data shows that the instances of sexual violence in India seem to be on the decline even though only a fraction of them is actually reported to the police.

Carelessness of administration

There have been cases where the Police has refuged to register the complaint of the 'rape victim' and even in some cases, the family of rural areas took the rape as a 'normal offense' and did not register any complaint. 

Therefore, because of the carelessness of administration, the victims, witness, and minors receive a little protection and almost 'no justice'. 

Degrading Medical test 

Even though WHO has provided guidelines for treating the victims of 'sexual assault', the two-finger test is done with the victims, that further compromises with the dignity of rape victims. 

These obstacles to justice and dignity are compounded by inadequate health care, counseling, and legal support for victims during criminal trials of the accused.

The rapes in Kathua and Unnao have triggered an intense debate on sexual violence, and the punishment that should be meted out to perpetrators. What seems to be largely missing from this debate is the gross under-reporting of such violence.

Poor implementation of The Protection of Children from Sexual offences POCSO

The convictions for child sexual assault have steadily declined in the last 10 years despite the enactment of the POCSO Act, which provides for child-friendly procedures. 

From a conviction rate of 32.6% in 2006 for child sexual assault, it is down to 28.2% in 2016 – while the pendency has climbed from 81.3% in 2006 to 89.6% in 2016.

On July 12, 2019, the Supreme Court has taken suo-motu cognizance of the high pendency of POCSO cases, as data revealed that, “from January 1st to June 30th of this year, 24,212 FIRs had been filed across India. Out of over 24,000 cases, 11,981 are still being investigated, while police have filed charge sheets in 12,231 cases."

Trials commenced in 6,449 cases only, it said, adding that they are yet to commence in 4,871 cases. Till now, trial courts have decided only 911 cases, about 4 percent of the total cases registered.

Existing gaps in the infrastructure

The infrastructure gap also needs attention as there is----

A. Absence of exclusive ‘Special’ Courts and Special Public Prosecutors.

B. Procedural Lapses: Children are often exposed to the accused, and aggressive questioning of survivors persists, resulting in survivors frequently turning hostile, more so in the absence of any witness protection systems.

C. Lapses in the investigation: Failure on the part of the police to collect relevant evidence, take statements of relevant witnesses, or collect forensic samples correctly are some of the major lapses that affect convictions.
D. Absence of Victim Protection and Support: A survey of 100 survivors of sexual assault by the Delhi Commission for Protection of Child Rights revealed that one in three children who faced sexual abuse dropped out of school. 

Further, only 15% of the survivors received compensation. The introduction of the death penalty for child sexual assault shifts attention away from the poor state of the implementation of the POCSO Act.
Indeed, child sexual abuse is a very serious matter. A society where the most vulnerable and innocent are regularly and dreadfully abused is indicative of a sombre situation that undoubtedly demands urgent intervention.

What can be done?

This can be achieved by:
  • Ensuring that children are protected and supported when they courageously report sexual offences, when child-friendly procedures are followed meticulously and investigation and prosecutions are strengthened.
  • Establishment of exclusive Special Courts and investment in infrastructure, people and training.
  • Implementation of a robust Victim and Witness Protection Program which will provide the much-needed framework for ensuring support and protection to child survivors of sexual offences, enabling both higher conviction rates and greater levels of healing and rehabilitation of child survivors.
  • What is also required is the certainty of conviction that will send a clear message to the offenders that will be held accountable for their actions.
The death penalty and enhanced sentences in child sexual assault cases are not the solutions as these will not make our children safer. The POCSO Amendment Bill, 2019 will inevitably endanger children rather than serve their interests.

How New  POCSO amendment 2019 supposed to work?
The Protection of Children from Sexual Offences (Amendment) Bill, 2019 (POCSO) was passed in the Rajya Sabha in the end of July 2019. 

The Indian government considered it a great step towards ensuring the safety of children in India by making punishment more stringent for committing sexual crimes against children – including the death penalty and provisions for fines and imprisonment to curb child pornography.
The modification in the law will address the need for stringent measures against the rising trend of child sexual abuse in the country and combat the menace of relatively new kind of crimes – as stated by the government, stressing that the strong penal provisions will act as a deterrent.

 It intends to protect the interests of vulnerable children in times of distress and ensures their safety and dignity. The amendment is aimed at establishing clarity regarding the aspects of child abuse and punishment.
The government is patting its back by passing this bill as an instrument to curb child sexual abuse, but there is little evidence to prove that the death penalty serves as an effective deterrent.

 However, the Bill has some positive aspects such as time-bound investigations, trial, and disposal of appeals, restrictions on bail, new fast-track courts, special forensic labs, etc.
All these positive aspects shouldn’t obscure various concerns related to the Bill. It seems that this Bill is more a reflection of popular demands rather than a result of proper research.
The death penalty is even more problematic in sexual assault cases where the perpetrator is a family member of the survivor/victim. According to the National Crime Records Bureau (NCRB) report Crime in India, 2016, 94.6% of all cases registered under rape with penetrative sexual assault against children were committed by people known to the survivor/victim, such as immediate family, relatives, neighbors, employers/co-workers or other known persons. 

Realistically, there are very little chances where a child is sexually abused by a family member or a relative and will come forward and file a complaint knowing that the complaint could possibly mean death to his/her father, brother or a close relative. This would mean a lesser number of cases being reported.

The death penalty also increases the chances of increased rape and murder cases. Because the disclosure of sexual assault by the survivor could lead to the death penalty, perpetrators would prefer to play it safe for them – by killing the victim.

The legal aspects come into the picture when a complaint is registered. At times, registering the complaint in itself is a difficult process especially when the perpetrators are provided political patronage. The political clout of abusers and the use of threats often stop survivors from filing complaints.
The amendment fails to consider that a significant number of cases under the POCSO Act comprise statutory rape, i.e., cases in which the victim is below 18 years of age and willingly engages in consensual sexual activity.

 Studies conducted by the Centre for Child and the Law, National Law School of India University, in Delhi, Assam, Karnataka, Andhra Pradesh and Maharashtra on the functioning of the Special Courts under the POCSO Act revealed that cases in which the prosecutrix admitted to a relationship with the accused amounted to 21.8% in Karnataka (3 districts), 23% in Delhi, 15.6% in Assam, 20.5 percent in Maharashtra and 21.2% in Andhra Pradesh.

The criminalization of consensual sexual activity among or with adolescents between 16-18 years has severe implications on their right to life, privacy, and right to health. The possibility of the imposition of the death penalty in such cases in itself constitutes a grave violation.

National Family Health Survey 2015-2016

The unit-level data of the National Family Health Survey (NFHS) conducted in 2105-16 and released earlier so it can be calculated accordingly the trends in under-reporting of crimes by comparing data on actual experiences of crime victims with that of crimes recorded by the police, and compiled by the National Crime Records Bureau.

According to the analysis shows that only a minuscule portion of incidents of sexual violence is reported to the police. An estimated 99.1% of sexual violence cases are not reported, and in most such instances, the perpetrator is the husband of the victim. The average Indian woman is 17 times more likely to face sexual violence from her husband than from others.

The NFHS is a nationally representative survey covering nearly 700,000 women. Detailed questions on sexual and physical violence were asked to a sub-sample of 79,729 women between 2015 and 2016. In the absence of a nationwide crime victimization survey, the NFHS remains the most credible sources on crimes against women.

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State-wise analysis
A state-wise analysis suggests that the extent of under-reporting be higher on average in states with low female literacy.

 In states such as Bihar, Uttar Pradesh, and Jharkhand, less than 0.5% of incidents of violence against women were reported. Tamil Nadu and Karnataka also saw very low reporting of such crimes despite a higher female literacy rate.

It is worth noting that extent of actual under-reporting might be even higher because of two reasons. First, in our estimation of total violence against women, we have only considered violence committed against women aged 15 to 49 years, as provided in NFHS.

 Secondly, there is possibly that the NFHS survey itself under- reports the extent of violence.

The estimated reporting rate is relatively higher for states such as Delhi, Assam, Rajasthan, Kerala, Maharashtra, and Himachal Pradesh. Barring Rajasthan, all these states have relatively high female literacy rates.

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How Indian law works in such cases?
Under Indian law, police officers who fail to register a complaint of sexual assault face up to two years in prison. 

However, Human Rights Watch found that police did not always file a First Information Report (FIR), the first step to initiating a police investigation, especially if the victim was from an economically or socially marginalized community. 

In several cases, the police resisted filing the FIR or pressured the victim’s family to “settle” or “compromises,” particularly if the accused was from a powerful family of community.

The lack of witness protection law in India makes rape survivors and witnesses vulnerable to the pressure that undermines prosecutions. For instance, khap panchayats, unofficial village caste councils, often pressure Dalit and other so-called “low-caste” families not to pursue a criminal case to change their testimony if the accused is from dominant caste.

Even as authorities begin to standardize the collection of forensic evidence, state healthcare systems, have largely failed to provide therapeutic care and counseling to rape survivors. This includes advice on access to safe abortions and tests for sexually transmitted diseases.

Victims of sexual assault, particularly from poor and marginalized communities, also lack effective legal assistance.
A 1994 Supreme Court ruling says that police should provide sexual assault victims legal assistance and keep a list of legal aid options- but they rarely do. In none of the 21 cases documented by human rights watch did the police inform the victim of her right to legal assistance or offer legal aid options.

Some defense lawyers and judges still use language in courtrooms that is biased and derogatory toward sexual assault survivors. “The attempt at shaming the victim is still very much prevalent in the courts,”
The National and state governments have taken several initiatives to support sexual victims, but without a monitoring and evaluation framework, they largely remain inadequate ort ineffective. 
There are hundreds of cases across the country for expeditious trials in cases dealing with crimes against women and children. However, little will be achieved unless other key concerns are addressed, such as legal assistance to help victims navigate the system.

The compensation fund was provided for namesake
The central victim companion fund created in 2015, mandates that rape victims receive a minimum of 300,000 rupees, but each state provides different amounts. The system is inefficient, and survivors wait a long time or unable to access the scheme. 

Out of 21 cases documented by Human Rights Watch, only three survivors had received compensation.

The One Stop Centre Scheme, a place providing integrated services- police assistance, legal aid, and medical and counseling services- also remains ineffective in practice.  

The government reported that it had set up 151 centers across the country, but anecdotal information collected by Human Rights Watch and other groups found a lack of coordination among the various relevant departments and ministries. There is also little public awareness about these centers.


Who to blame? Men don’t know how to deal with their masculinity.

For a few women, it’s fine but if u talk about lower categories or in villages, then the situation is really bad. Media is showing it a little too much. Take the case of the eight-year-old. No one was doing anything for her.

Rape still carries a huge stigma in India- many rape cases are still pending, rape survivors in India face significant barriers to obtaining justice and critical report services. Women and girls who survive rape and other sexual violence often suffer humiliation at police stations and hospitals.
A way forward
“Reporting rape should not contribute to the victims’ nightmare. It takes time to change the mindset, but the Indian government should ensure medical counseling, and legal support to victims and their families, at the same time do more to sensitize police officers, judicial officials and medical professionals on the proper handling of sexual violence cases”.

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