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Crime repeats itself

The unacceptable situation of violated women in India

Women in India

Women in India Photo by Gabriele Nissim

The prevailing situation prevents most victims from pressing charges of rape, especially if the rapist is a known person, powerful and influential, or if he is a family member.

During the campaign to reform rape laws in the early 1980s, following the adverse Supreme Court ruling in the Mathura rape case, in which the two policemen who had raped a young 15-16-year-old tribal girl inside a police station were acquitted on grounds that she was not of “good character” and that she was above 16 years of age, a slogan coined by the women’s movement to succinctly capture the tragic irony of this verdict, “Mathura was raped twice, first by the police and then by the courts”, is as relevant today as it was then.

Despite the fact that, in recent years, the public spotlight has been on this issue, nothing seems to have changed for the victim. All that we have achieved despite several amendments to the rape law is to make it more stringent as a deterrent. This in no way has increased conviction rates, which continue to be dismal, a mere 10-15 per cent. In all other cases, the victim is viewed with suspicion and termed as a liar.

Though we have changed the nomenclature from “victim” to “survivor”, rape trials continue to be harrowing, and victims continue to be humiliated not only by the defence lawyers but also by presiding judges. In a rare instance, if conviction is secured at the trial stage, the same is often overturned at the appeals stage.

Instead of empowering the victim to become a survivor, the criminal trial pushes her several notches down the social ladder. The young girl from an already impoverished section is forced to drop out of school and the family relocates to avoid the stigma. Most campaigns end when the law is enacted and seldom has rehabilitation been a concern. It is generally believed by campaigners and stakeholders that prescribing deterrent punishment gets translated into justice for the victim.

This prevailing situation prevents most victims from pressing charges of rape, especially if the rapist is a known person, powerful and influential, or if he is a family member. Most victims are aware of the humiliation they would have to endure and that, ultimately, they alone have to pay the price for filing the complaint.

The humiliation meted out to her is not confined to the trial court, but bogs her down even at the appeals stage. If the rape has resulted in pregnancy, her situation becomes even more precarious. The convicted rapist at times makes an offer of marriage, and the judges persuade victims to accept such offers as the only viable solution on grounds that it is difficult to raise a child as a single parent and endure the social stigma.

This is poignantly evident in the case of a young woman in Cuddalore, Tamil Nadu. The incident had occurred in 2008. In 2014, the trial court convicted the accused, and directed him to pay compensation of Rs 2,00,000. In July 2015, while hearing the appeal, Justice D. Devadass of the Madras High Court asked the victim to consider the offer of marriage made by the accused and referred the matter for mediation, on grounds that the child needs a father and that it is difficult to raise a child as a single parent. However, the victim rejected the offer and commented, “does the judge know the humiliation and stigma I have gone through all these years since the incident?”

Subsequently, in October, the case came up before another judge, Justice A. Selvam, who set aside the conviction and referred the matter for a fresh trial on grounds that there was no clear proof that the victim was under 16 years of age at the time of the incident, and that the conviction was based only on her oral evidence. The judge also asked her to repay the compensation that had been ordered by the trial court. It concluded that if the girl was above 16 years of age, then it must be held that it was consensual sexual intercourse, and not rape. Though the high court had the power to verify the documents to ascertain her age, rather than setting aside the conviction and ordering a fresh trial seven years after the incident, it declined to exercise this option.

This was precisely the situation in the Mathura case. Though the prosecution had pleaded that the girl was below 16 years of age, since clear proof of age was not available as she was an illiterate tribal girl who did not have a birth certificate or a school certificate to prove her age, the accused were acquitted relying on the legal doctrine of benefit of doubt to the accused.

It seems that history has repeated itself with the high court setting aside the conviction on this ground alone, though DNA tests had proved paternity. Unable to bear this humiliation and also the financial hardships, when the matter came up for trial, the victim informed the Cuddalore Mahila Court on December 29 that she had married the accused after a settlement and they were now living together.

This brought to an end the circuitous litigation, where the 22-year-old woman was left with absolutely no protection. There were no directions from the court that the Rs 2,00,000 compensation should be kept aside as future security for the child or an assurance that the man will not be vengeful and subject her to cruelty in retaliation for having filed the case of rape against him.

This disturbing trend is not a rare instance but a routine occurrence in our courts.

Flavia Agnes, lawyer and activist for women rights in India

10 February 2016

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Defence of human dignity

against totalitarian tendencies

In Dentures, collection of Kolyma Tales, Varlam Shalamov told the protagonist, held in the gulag, addressed to the executioners who wanted to strip him of everything: "No, do not give up the soul."
This sentence contains the essence of the Righteous: Those who refuse to "sell their soul" in extreme situations, even with the fear to go in the field of victims and of no escape, in the face of persecution, hatred and discrimination.
The defense of human dignity is the defense of one’s own self, of their own moral integrity, even when he/she rescues another human being. For this we can say that it is just the gesture of one who safeguards the dignity of the victims with his own humanity. To paraphrase the famous words of the Talmud: "Whoever saves one’s life, saves the whole world", we can also say "he who saves himself saves the whole world," not defending his own life, but the soul, listening to the authentic voice of conscience .
In the gulag one could rarely assist and help another prisoner, but every day one could try to oppose the process of dehumanization lucidly put in motion by the perverse mechanism of the working field.

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Varlam Shalamov

anti-stalinist poet who published the tale of his imprisonment in Siberia.