Waiting to exhale
December 16 — as we mark the day of shame, anguish and frustration, it is also important to register that it was a major turning point for the anti-rape movement in the country, which started in 1980 after the adverse Supreme Court verdict in the Mathura rape case.
For the first time it was not an issue that concerned a handful of “women activists”, but a matter of “public concern”, which caught the imagination of students, young professionals, television channels and web campaigners. The public protests in the capital and elsewhere, forced the government to respond. Facing embarrassment at the UN and international forums, the government had to act swiftly. And it did.
It is interesting to note that a statute enacted prior to the Delhi gangrape incident, (on November 14, 2012) for dealing with sexual offences concerning minors, was held up as a model for the rape law amendment. This statute had broadened the definition beyond peno-vaginal penetration to include all types of penetrations — in every body orifice (mouth, anus, urethra, etc.) and by any body part of the accused (fingers, tongue, etc.), as well as insertion by any objects (sticks, rods, etc.) was made punishable. But this radical shift in the definition of sexual crime had remained within the precincts of the statute books, and cases of minors continued to be filed under the old section of IPC as no one was prepared to experiment with the new statute, Protection of Children from Sexual Offence Act, 2012 (Pocso for short). Only when public protests hit the headline, this enactment seems to have got boost, and some police officers started registering offences under it, especially in cases concerning electronic transmission of pornographic material involving a child were brought to their notice. This was the first visible change.
The second was the amendment to rape law in April 2013. Though the Verma Committee, which was set up soon after the public protests had suggested several far-reaching amendments, the government confined itself to adopting the definitions of Pocso to all sexual crimes against adult women. So all children under 18 (male and female) and all women were brought within this new definition of sexual offences and the ambiguity of what constitutes a sexual crime for an adult woman and a child, a matter of grave concern for some of us, was resolved. It is another matter that many stakeholders did not pay heed to the new definition nor knew its implications until the Tarun Tejpal case hit the headlines. But it is said that at times, the law moves far ahead of society, the changes brought about by law percolate down more gradually. And so it was with this widened definition. How the judiciary will respond to it is yet to be seen.
The two major concerns that continued to be in focus much after the amendments were the low conviction rates and the setting up of fast-track courts, as though there was an interconnection between the two, and fast-track courts would automatically improve conviction rates. In fact, in many places, including in Mumbai, the fast-track courts, which were set up did not function well as far as sexual crimes were concerned and these cases had to be shifted back to special courts designated to try sexual offences against women. Yet the clamour for setting up of fast-track courts continues rather than developing a cadre of skilled and sensitised judicial officers and public prosecutors to deal with these offences.
Two issues that have not been sufficiently focussed are — the implications of stipulating 18 as the mandatory age, below which all consensual sex has been penalised and how it will affect the medical professionals who are sworn to confidentiality while performing medical terminations of pregnancy under the MTP Act. If a minor approaches a medical professional in confidence or confides in a counsellor about her past sexual violations, is it right to penalise the professional for not reporting? Counsellors and doctors are placed in a situation of moral dilemma. They need an answer as they respond to the dire need of child-adults.
If a criminal trial cannot proceed and result in conviction without the active support of a willing and cooperative “prosecutrix” (as the victim is referred to within criminal law), what end will it serve to have the provision of mandatory reporting? Is it right to force a victim to participate in a criminal trial against one’s own wishes? Should not the agency of the victim not be respected in such matters? Opinion seems to differ even among subject experts. Even more important, for whose sake is this being done and what are the gains of incorporating such a provision in law when around 80 per cent of reported cases end in acquittal?
The second and even more pertinent issue is that a rape trial continues to be traumatic for the victim without any change in the situation. The thought of appearing in court, coming face-to-face with the accused and enduring aggressive and humiliating cross-examination hangs over every victim’s head like a sword of Damocles, causing anxiety and trauma. Appointing a criminal lawyer known for securing death penalty in cases concerning terrorists in some high profile rape cases in Mumbai has also not helped. To add to the misery, in some cases, one of the accused is a minor, which means the victim has to depose twice, once in a regular court and again before the juvenile justice board. They cannot understand why they are subjected to such re-victimisation, for no fault of theirs. The excessive curiosity, and intrusive voyeuristic tendencies of the media has only served to add to their misery.
Unless the focus changes from detection, conviction and death penalty, to a victim-centric approach of dignity, support, care and treatment, a rape trial will continue to be traumatic. Mandatory reporting will just be another tool in the hand of the stakeholders, to cause further victimisation of an already traumatised victim, and mar her chances of becoming a survivor. Will the authorities please take note, as we mark December 16th as a day dedicated for those who survive rape and become “Nirbhayas”.
The writer is a women’s rights lawyer