Unjust trials

The Hindu, Sunday Magazine, July 10, 2011

                                                        Structural inequalities... Photo: AFP

The Strauss-Kahn case illustrates once again the serious obstacles that women around the world face in getting justice.

For the first time, a woman now heads the International Monetary Fund (IMF) and also for the first time, Thailand has a woman Prime Minister. Women are making news all the time — either because they have done something no other woman has done before or because they are caught in the net of unfriendly judicial systems like millions of their counterparts around the world. Women like the hotel maid in New York who accused the powerful former IMF head Dominique Strauss-Kahn of sexual assault.

This high profile case is now close to collapse. As in so many lesser-known cases around the world, the woman's credibility is being questioned rather than the man's character. Instead of the evidence being used to indict the man, the woman's past record of inconsistency is being used to prove her a liar. And because she is supposed to have lied in the past, there is a presumption that she might be doing so again. Yet, although the man has been accused of similar behaviour in the past, it is not being presumed that he could have behaved the same way again. Instead, he is being given the benefit of the doubt. Why? Because he is powerful and the woman is not.

Much will be written about this case in the weeks and months to come but what it draws attention to is the justice system in all our countries and how it works, or rather does not work, for women. It is significant that in its very first report on “Progress of the World's Women 2011-12” brought out by the newly established UN Women, the theme is, “In pursuit of justice”.

For better justice

The report looks at how justice systems can be made to work for women and sets out examples and suggestions. From the data it puts forth, it is evident that in many countries there are serious obstacles in the way of women getting justice.

Where laws have been changed — such as the introduction of a particular law on domestic violence — a difference has been noted. More cases are reported as women understand they need not be silent and bear abuse. Yet, attitudes do not change overnight when such laws are introduced. For instance, according to the report, in 17 out of 41 countries surveyed, a quarter or more of the respondents thought it was perfectly alright for a man to beat his wife. So between this attitude, and a law against domestic violence, lies the challenge of implementation. And it is here that an indifferent judicial system often fails women.

“All over the world,” notes the report, “the justice chain is characterised by high levels of attrition, whereby most cases drop out of the justice system before they reach court and very few result in a conviction. Attrition is a particular problem in rape cases.” Even in European countries, where you would imagine that this would not be the case, the picture is not that different. “A 2009 study of European countries found that, on average, 14 per cent of reported rapes ended in a conviction, with rates falling as low as five per cent.”

Accessing the justice system is not a simple matter. It starts with reporting a case to the police but then is followed by investigation, legal help, facing the court, and the wait for justice. Most women do not have either the resilience or the support system to fight till the end. The majority gives up at the very first stage, which is at the point of reporting.

In many countries, especially developing countries, even if laws have been enacted that should aid women, the police are not trained to be sensitive to women, or in some places simply do not have the resources. In Uganda, for instance, if a woman goes to the police and reports domestic violence, she is asked to pay for the transport to arrest the suspect! In Cambodia, rape victims are asked to pay for the forensic tests, an amount that is equivalent to what they would earn in two weeks.

Leading the way

Several countries have pioneered solutions to this by providing integrated services. South Africa has a pioneered the Thuthuzela or “comfort” centres located in public hospitals. Here a survivor of sexual assault is given medical help and legal advice and has social workers, doctors and police on call for 24 hours. This has made a marked difference to rates of reporting and conviction. From an average of two years for a trial, the average is now down to seven and a half months and the conviction rate has gone up to 89 per cent.

The UN report makes a strong case for employing more women in the justice system so that the entire process is more sensitive to women's needs. One example of the positive impact of this is the 130-strong Indian women's police contingent in post-conflict Liberia. Reporting of gender-based violence increased because of the presence of these women, states the report.

Yet, worldwide, women make up not more than 13 per cent of the police force and only 27 per cent of judges around the world are women. The report argues that even if gender-sensitive training were imparted to everyone in the system, the presence of more women would make a material difference to the lives of the women seeking justice.

The complex justice systems in all our countries cannot be reduced to a few simple solutions. There are several simultaneous areas that need to be tackled. But sometimes the simplest solutions can make a maximum difference. The South African example, of one-stop shops to deal with sexual violence, is one such step that has already shown results. It does not require the creation of additional institutions. It means using those that already exist, such as public hospitals, and evolving systems that respond to women's needs instead of exacerbating their burdens.

Women's progress can be measured in many ways. The media usually cites the ‘success' stories — of the women who have ‘ made it' to the top in different fields. These are indicators no doubt. But the real measure of women's progress lies in the ability of our societies to deliver justice. And on this measure most countries, rich and poor, fall short.

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Contradictions and confusion cloud rape laws. The result is miscarriage of justice

My piece in Tehelka on November 20, 2010

The legal system needs a major overhaul if rapists are to be brought to book

IN EARLY October, three events took place. All relate to women and rape. On 5 October, the Central government decided to make an amendment in Section 375 of the Indian Penal Code. At the moment, if a woman under 15 is forced to have sex by her husband, it constitutes rape. If she is over that age, it does not. The government has decided to push the age limit up to 18, which in any case is the legal age for marriage.

Around the same time, a 30-year-old woman went to a Puja pandal in Navi Mumbai. She fainted during the festivities and was rushed to a nearby hospital. As she lay unconscious in the ICU, the resident doctor on duty apparently raped her. He has been arrested and the case is being pursued.

In the same week, a fast-track court in Mumbai dismissed a case filed last year by an American woman who had alleged that she had been gang-raped by six young men with whom she had gone out one evening. She was attending a short-term course at the Tata Institute of Social Sciences (TISS). The judge declared her testimony as “unreliable” and released the accused.

A related development to the above three incidents was the release of a report by Human Rights Watch (HRW) titled Dignity on Trial: India’s Need for Sound Standards in Conducting and Interpreting Forensic Examination of Rape Survivors. It exposed the extent to which even today the ‘finger test’ is used to establish whether the raped woman had been “habituated to sexual intercourse”.

All these developments are related because they revolve around that four-letter word: rape. In different ways, they also illustrate the contradictions and the confusion that prevail on rape laws, their implementation and therefore their efficacy.

Take the first, the issue of marital rape, or non-consensual sex within marriage. Talk about it, or write about it, and you will instantly get media-savvy minority groups like Save The Indian Family jumping up and down and shouting that if there is a law on marital rape, Indian men will suffer even more than they already do under laws like Section 498 A and that the ‘Indian family’ will fall apart.

It would seem that these groups, and I presume their members are men, have never heard of domestic violence that includes all forms of physical abuse, including burning the woman who is supposed to be your life partner. That they do not know that for every rape case reported and recorded in the crime statistics, there are hundreds that are never acknowledged. That they do not know that one of the largest incidents of violence against women in India is not what they experience in the public space but within the ostensibly secure reaches of their own homes.

So, publicly we do not discuss marital rape. As a result, the only step the government can think of taking to deal with this crime is to raise the age limit to 18 years. By doing this, it believes it has solved the problem.

If it has recognised the anomaly in the age factor in this ‘exception’ to Section 375, then why can it not understand that the ‘exception’ itself is an anomaly? Why is it a crime only if a woman under 18 is raped by her husband and not a person over that age? In other words, you accept that husbands should not rape their wives, and yet apparently, they can the day the wife turns 18. Does this make any legal sense? To compound the contradictions, the Domestic Violence Act 2005 offers a civil remedy for marital rape and Section 498 A considers “perverse sexual conduct by the husband” as a crime.

The rape cases of Navi Mumbai and TISS, clubbed with the Human Rights Watch report, bring out another set of issues regarding rape. Both these cases caught the attention of the media precisely because they occurred in a large metropolitan city and also because the survivors and the perpetrators were middle-class people. That rape of poor women and minor girls takes place almost every day in cities such as Mumbai is a subject that creates barely a flutter in the media.

But what happens when the case is dismissed? The testimony of the survivor in the TISS case was judged “unreliable” by the court as were the witnesses produced by the prosecution. Hence, the case was dismissed and all the accused released.

IS THIS the full story? When the TISS rape case occurred, the media was literally salivating over it. One newspaper ran the entire FIR filed by the survivor including intimate details about how it was she realised she had been raped. All newspapers published detailed information about the survivor barring her name. Other newspapers gave character certificates to the accused, all “good” boys it would seem, and ran headlines such as, “What was she doing out with six men?” So, even before the case went to court, the survivor’s character was on trial.

For every rape case reported in India, there are hundreds that are never acknowledged

What we do not know yet is whether she and the woman in Navi Mumbai were put through the standard ‘two-finger’ test that continues to be used despite a Supreme Court order that it should be discontinued. What this actually means is that if you are a woman who has been raped in your home or outside, and you work up the courage to go and report to the police, as part of the mandatory medical examination, the doctor on duty will insert two fingers into your vagina to check whether you are “habituated to sexual intercourse” or if your hymen is intact.

Why is this necessary especially when, according to the law, the character of the survivor, and hence a detail such as elasticity of her vagina, is completely immaterial in a rape case? Yet, the reality is that this method continues to be used across the country and one of the reasons, according to the HRW report, is that doctors are still being trained with outdated manuals that recommend this test.

Then, if the case ever makes it to court, you have to contend with a prosecution that might not necessarily be interested in pursuing your case. Ranged against you could be well-paid defence lawyers who can, with ease, pull the prosecution’s case apart if it is not watertight or if it has details such as the outcome of the ‘twofinger’ test. And that is precisely what happens. Nine times out of 10, such cases are dismissed because of lack of evidence, or “unreliable” evidence.

Nine times out of 10, such cases are dismissed due to lack of evidence or ‘unreliable’ proof

AND WHEN you hear that the case has been dismissed, you assume that the survivor lied, and that the charge was false. No one, least of all the newspapers that went to such lengths to pursue the case in the first place, bother to check how or why the case fell apart. It becomes one more statistic in the hands of those who want to beat up every woman who dares to cry “rape” and seek justice.

The government’s decision on amending the section on marital rape is just one more illustration of its refusal to acknowledge the extent of violence women suffer within their homes, or the insurmountable hurdles they face when they try to use laws that contradict each other.

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(To read the original, click on the link above)

Judges, judgments and women's rights

The Hindu, Sunday Magazine, October 31, 2010

THE OTHER HALF

KALPANA SHARMA

When it comes to women's issues and the law, the courts continue to send contradictory signals…

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As much as police officers, doctors also need to be taught a rape survivor's rights.

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Photo: Vipin Chandran 

Speaking out in anguish:Indira Jaisingh.

Two courts. Two judgments. Two attitudes. In the contrast lies the story of what Indian women continue to face when they turn to the law.

On October 21, the Supreme Court, in the context of a case before it, held that a woman in a “live-in relationship” could not claim maintenance in the event of abandonment by the man as such a relationship could not pass as a “relationship in the nature of marriage” as described under the law for arrangements outside formal marriage. The Court held that if the woman was a “keep” of the man, who looked after her financially but “uses mainly for sexual purpose and/or as a servant”, then such a woman was exempted from claiming any benefits of maintenance under the Protection of Women Against Domestic Violence Act 2005 on grounds of abandonment.

The ruling led to a justifiable outburst by India's first woman Additional Solicitor General Indira Jaisingh, who also happens to be one of the main movers of the Domestic Violence Act. Ms. Jaisingh ticked off the judges for using a term like “keep” which she held was derogatory to women and was “male chauvinistic”.

Wrong precedent?

Ms. Jaisingh's statements in court made it to the front pages of most newspapers. But one wonders how many will pause and think about why she felt she had to raise her voice at the use of such a term in the judgment. It was, as she herself emphasised, because the ruling of the Supreme Court sets a tone and a precedent for future judgments that affect women. One of its judgments in what is called the Vishakha case is even today used as the standard for judging all matters relating to sexual harassment in the absence of a specific law. By using a term like “keep”, you disregard and virtually excuse the responsibility of the man in an arrangement in which two people are involved and where one, the woman, is most likely the more vulnerable. Once this becomes the precedent, any man can go to court and challenge the right of a woman with whom he has a relationship outside marriage, and who demands compensation when abandoned, by claiming that she was merely his “keep”. Therefore, Ms. Jaisingh's intervention needs to be appreciated, as also her courage for speaking out in the highest court of the land where some others might have felt intimidated.

Apart from the Vishakha judgment, the Supreme Court has also passed several orders that make it clear that in a rape case, the woman's character will not be part of the proceedings during the trial and that it is immaterial to the case. This is also an important precedent in the context of women's rights. Yet, as is evident from another judgment, in another court in Delhi, the practice continues.

Pronouncing judgment in a rape case on October 23, Additional Sessions Judge Kamini Lau drew attention to an outdated and barbaric practice that continues to be used in rape cases while collecting forensic evidence. Rather than help the survivor, this particular test, called the “finger test” or the Per Vagina (PV) test, traumatises the survivor and gives the defence in such cases a stick with which to intimidate and demoralise her in court.

When a woman reports rape, she has to go to the police who then send her to a government hospital for a medical examination. The report by the doctor who conducts this test is supposed to be part of the medico-legal evidence that the prosecution presents in a rape case. Yet, although such a test has long been discarded elsewhere, in India doctors are trained to test whether the rape survivor is “habituated to sexual intercourse” by inserting two fingers inside her vagina. Why is this of any relevance to a case where the facts of rape and sexual assault are being determined? Does this mean married women cannot be raped? Does it mean an unmarried woman who has had sex cannot be raped? What does this absurd test actually establish when the woman's character, or sexual habits, are of no consequence in the matter before the court?

It is heartening to read of at least one judge who was incensed enough to speak out against this test. Judge Lau said, “The test is violative of the fundamental right to privacy of the victim.” She went on to say, “State action cannot be a threat to the constitutional right of an individual. What has shocked my conscience is that this test is being carried out in a routine manner on victims of sexual offences (even minors) by doctors.”

The judge recommended that police officers be sensitised to this issue. But as much as police officers, doctors also need to be taught a survivor's rights and informed that such a test is simply not allowed. According to a recent report by Human Rights Watch titled, “Dignity on Trial: India's Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors”, the “finger test” remains standard practice in many parts of India including Mumbai and Delhi. In fact, in Mumbai, three leading government hospitals, where hundreds of rape survivors are examined each year, still use this test.

The HRW report also reveals that outdated medical textbooks recommending this test are still being used. As a result, each succeeding generation of doctors continue to follow the practice without thinking twice about its relevance or the trauma they are causing the rape survivor.

Intimidating practice

Worse still, because the practice continues, many survivors lose their cases in court because they get demoralised, confused or intimidated when sections from the medical report relating to this test are used by the defence to undermine their testimony. Yet, the survivor's testimony is supposed to be enough in a rape case and the forensic evidence is only secondary. This is especially so because survivors often wait before they go to the police and as a result valuable evidence is lost. As a result, several court rulings have emphasised that delay in filing a complaint should not be held against the survivor.

Judge Kamini Lau has drawn attention to an extremely important aspect of the procedures followed in rape cases. Unless something like this is addressed urgently, convictions in rape cases, already abysmally low, will never improve. And women who are sexually assaulted will continue to hesitate before turning to the law.

 
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Defining sexual assault

The Hindu, Sunday Magazine, May 30, 2010

The Other Half

KALPANA SHARMA

The sentence in the Ruchika Girhotra case is a small step in rectifying an anomaly in the law. The draft Criminal Law (Amendment) Bill 2010 now seeks to tighten laws dealing with sexual assault…

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What is important is that women are made aware of what their rights would be if the law is passed.

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The enhancement of the sentence of former Haryana DGP S.P.S. Rathore, charged with molesting 14-year-old Ruchika Girhotra, from just six months to one and a half years, is a very small step in rectifying the glaring anomaly in the law that allowed him to almost get away with a serious crime. In the absence of the popular furore over what happened, and the determined efforts of the young woman's friends and family, it is possible that Rathore would have continued to hold office and escape the jail sentence awarded to him. But even as many will believe that 18 months is hardly adequate punishment for a crime that led to a young woman taking her own life, the sentencing is the beginning of an important process of change in our antiquated laws dealing with sexual assaults of all kinds.

Ruchika's is only one case. There are hundreds of such cases in India that never reach the point of conviction. And many more incidents that are never even reported. But because more such cases are coming out in the open, the demand for a change in the law has built up to the point that the government has finally taken note.

Change, finally

The draft Criminal Law (Amendment) Bill 2010 aims to tighten current laws dealing with rape and sexual assault. This has happened not because of a sudden flash of enlightenment by those who make laws but because of the sustained campaign by women's groups for well over three decades. The fact that such a law is finally on the anvil illustrates yet again how important it is that civil society groups exert pressure and provide detailed alternatives when opposing existing laws.

For, in this case, what women's groups have done is not just to point out the obvious, that the existing provisions in the Indian Penal Code (IPC) dealing with rape are antiquated (based on a 19 {+t} {+h} century law) and ineffective but have also submitted to the government detailed suggestions on how these provisions can be changed. The National Commission on Women has also provided the government with a draft law. Such interventions ensure that the discussion does not remain in the area of generalities but actually deals with the specifics.

But here is where the problems often begin. While civil society groups work on changes based on their actual experiences of dealing with cases — such as those of rape, sexual assault, child abuse etc — the bureaucrats who draft laws appear to have a different set of concerns. So some of the suggestions are incorporated but loopholes are allowed to remain that will permit offenders to slip through.

Yet, despite its apparent weaknesses, the Criminal Law (Amendment) Bill 2010, also popularly referred to as Sexual Assault Bill, will herald important changes in the sections of the IPC dealing with rape. It has enlarged the definition of rape to sexual assault, thereby bringing under the aegis of the law many other forms of assault on women that so far have not been considered rape and that have allowed offenders to get away with the minimum punishment of just two years. This is a welcome change. (The entire draft is available on the Union Home Ministry's website: http://mha.nic.in/writereaddata/12700472381_CriminalLaw (Amendment)Bill2010.pdf)

It has also specified that such a crime would be treated more seriously when the offender is a police officer, a public servant who has taken advantage of his official position, a person on the management or staff of a jail or remand home, a person on the management or staff of a hospital, the relative or a person in a position of trust or authority etc. The punishment would be a minimum of 10 years extending to life. Clearly, if such a provision had been in place earlier, Rathore would never have escaped with such a light sentence.

The draft law has also included specific provisions on child abuse that should be welcome. Groups working on children's rights have been demanding a separate law dealing with this but lawyers point out that having specific provisions within the IPC helps as the police usually act on the basis of these provisions. Thus the punishment for sexual abuse of a minor (defined as under the age of 18) will now be a minimum of seven years extending to life.

Women's groups are not entirely happy with the version of the law presented by the government because they hold that it is poorly drafted, is vague in some parts and could provide offenders a window through which they could escape. Their detailed responses have been sent to the Home Ministry and one hopes that they will be taken on board seriously.

What is important at this stage is that these provisions in the law are debated and that people, and particularly women, are made aware of what their rights would be if the law is passed. In India, a major problem is the absence of accurate information on important laws. And the media does not always help as the manner in which these issues are reported leads to a misunderstanding of the law.

Skewed balance

For example, instead of looking more closely at provisions in the draft law, some newspapers have been emphasising the opinions of little known groups that insist that the law will victimise men. This is an amazing form of “balanced” reporting where you place on an equal footing the very real problem facing millions of women who have been sexually assaulted, and their rights, with small, fringe “men's rights” groups who are given equal or sometimes even more media space.

Instead, what we need to consider is why the graph of assaults against women has been steadily climbing in this country, and why the rate of conviction remains pitifully low. According to the latest figures for 2008 assembled by the National Crimes Records Bureau, there has been a five per cent increase in crimes against women — from 1,85,312 in 2007 to 1,95, 856 in 2008. These crimes include rape, molestation, kidnapping and abduction of girls, sexual harassment, trafficking (defined as “importation of girls”) and cruelty by husband and relatives. The last has the largest number of recorded cases — 81,344, followed by 40,413 of molestation, 22,939 of abduction of girls, 21,467 of rape and 12,214 of sexual harassment.

It goes without saying that a change in the law by itself will not reduce crimes. But in this instance, the important expansion of the term “rape” into the much more specific term of “sexual assault” is long overdue. The real challenge, if and when the law is tabled in Parliament, and hopefully passed, will be how well it is implemented.