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[Video] Mathura: The rape that changed India

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Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

Written by myLaw

Should media outrage affect sentencing in criminal trials?

TennilleDuffy_authorI wish to respond to one aspect of Sohini Chatterjee’s recent post on the sentence handed down in Ram Singh and Others – the ‘Delhi gang rape trial’. She said that the judge had recognised the outrage caused by this case as an aggravating factor and seems to argue that the supposed effect of the media attention on the sentence was a good thing.

I should point out that this is, clearly, not Ms. Chatterjee’s opinion alone. Various manifestations of this sentiment have echoed across Facebook, the comments sections on blogs and news websites, and in various reports about the case. Many people feel that justice has been done and that the court, the judge, and the criminal justice system correctly responded to the outrage felt across society.

I do not think that Judge Khanna’s sentencing order reveals that it was affected by the furore across India even though I have no doubt that he was well aware of it. Whether media reports can and should be taken into account in sentencing, however, is another question entirely.

Let me state at the outset that I am passionately opposed to the death penalty. As it stands however, the death penalty is an available punishment in India, and has been confirmed as constitutional by the Supreme Court of India.

The idea that the media can, and should, have an effect on sentencing and other aspects of the operation of the criminal justice system, however, is worth examining more deeply. Firstly, can the media, and what ‘they’ are communicating, be discerned or measured? Secondly, we need to examine the notion that that the media—whoever or whatever they are—are some kind of spokesperson for society, or the conduit through which society expresses itself. And thirdly, should judges and courts —while sentencing—take into account the expression of society’s demands or desires through the media? Even this minimal unpacking of the idea begins to expose its flaws.

Let us take the first contention. Can we (or a judge in any criminal case in India) know what the media is saying about any particular case? What if the message is not unanimous? Even in a case such as this, where one might be able to readily detect an overall sense of outrage, disgust, and fury, there were other, discordant voices present across the country. We know enough of the history of how rape is treated and reported in India, for example, to know that many different attitudes—foolish, conservative, and ignorant among others—prevail. Further, what kind of media should we observe? The mainstream media and its attendant business and political interests? Facebook and Twitter posts? Independent blogs? Civil society publications? These days, anyone can be and is a commentator. How can any one person process and take all of those opinions into account?

Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Students protest the rising violence against women at Raisina Hill and Rajpath in New Delhi on December 22, 2012. All three images are from Wikimedia Commons and have been published here under a Creative Commons Attribution-Share Alike 3.0 Unported license.

Secondly, is the media really the conduit through which society expresses itself? I doubt that, especially in a country and a polity as diverse as India, that could ever be the case. The mainstream media certainly can’t be said to speak for all people in this country. As with all other institutions in society, the media speaks for those in power and those with influence much more than those without. And whilst I am certainly not suggesting that this case didn’t deserve the media attention it has received, I am also not the first person to observe that the media treated this case exceptionally. Yes, that may be due in part to the public outrage. But was the public outrage not also fuelled and enabled, in part, by the media attention?

Many of us are equally outraged or upset by every horrific rape and murder. Reports of fresh cases—the five-year-old-girl who was held captive and raped by a neighbour in Delhi, the reports of the rape of girls in front of their mothers during the recent riots in Muzzafarnagar, and the rape of a woman also on a bus, in Punjab, just two weeks after the Delhi incident—are seen every week across the country. Who weighs the severity of these countless cases, and measures up the column inches or television minutes to be awarded to each? What about the countless others we know that we do not even hear about? Is the consequence to be that, the more media attention a case gets, the harsher the sentence? Or, alternatively, that those who commit crimes against the powerless and those deemed somehow less worthy of media attention, receive more lenient sentences? Obviously, these cannot be results that we seek to achieve in any criminal justice system.

As a matter of general principle, judges should not be looking to the media when they are determining sentences, for all of the reasons and difficulties already described. “Trial by media” is seen as a negative phenomenon for a reason. A properly functioning court system can help avoid erroneous findings of guilt, convictions, and sentences handed down without proper recourse to facts proved beyond reasonable doubt and the imposition of unfair or inconsistent punishments. If a judge is looking to the media in some cases, how is consistency to be achieved? Which commentators’ idea of fairness or outrage is to be abided by?

Even looking at the specific comments and findings made by Judge Yogesh Khanna in this case, I do not think that we can conclude that he was looking to the reported public reaction to this case in delivering his sentence. There is a difference, seen widely across the criminal law, between judges talking about concepts such as “collective conscience” and “community feeling” and judges actually saying “I have observed that people are particularly upset about this particular incident, and that is an aggravating factor”.

SupremeCourtofIndia_aggravatingcircumstance_extremeindignation_abhorrenceOne case that Judge Khanna refers to is Gurvail Singh @ Gala and Another v. State of Punjab, a 2013 judgment of the Supreme Court that Ms. Chatterjee has also referred to in her post. In that case, the Court spoke of “whether the society will approve the awarding of death sentence to certain types of crime or not.” “While applying this test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like rape and murder of minor girls”.

As we can see, the Supreme Court is referring not to a specific crime or specific public expressions of outrage. They are not speaking about some way in which judges could or should react to particular, one-off instances of outrage. Rather, they are talking about a certain category or type of crime, such as the rape and murder of minor girls.

Judges are members of the community too. For better or for worse, they are given the power to impose sentences within the criminal justice system. Part of that role is that they must gauge the level of seriousness of a crime and the level of general social abhorrence of various types of crime. As much as is humanly possible, they must attempt to do so in a principled and consistent way. To look to the media to inform their sentence, or to react more harshly to highly publicised crimes, goes against all sentencing principles, and should be discouraged.

As a member of the community, Judge Khanna was entitled to take into account not only the barbaric and hideous nature of the acts that were committed by these men, but also the fact that it was the type of crime that society increasingly found abhorrent, despicable, and outrageous. On the face of his judgment, it appears he did just that – no more, no less. Given the change in rape laws following this crime, there is no doubt that this sentiment will be echoed in many cases and sentences to come.

(Tennille Duffy is part of the faculty on myLaw.net.)

Written by myLaw

Death to all – the principles of sentencing in Judge Yogesh Khanna’s award of the death penalty in the Delhi gang rape trial

SohiniChatterjeeAround 2:30 p.m. on September 13, 2013, Additional Sessions Judge Yogesh Khanna awarded the death penalty to the four accused in State v. Ram Singh, marking the end of the (fast-tracked) nine-month-long trial of the accused in the Delhi gang rape case. The judge supported his award of the death penalty using two principles.

Firstly, he relied on the notion that when the collective conscience of the community is shocked, the court should award the death sentence. If the crime has been executed in a grotesque and revolting manner, it would be a failure of justice to not award death sentence. After gang raping the victim, the four accused persons had cut open her intestines using an iron rod and eventually pulled out her internal organs with their hands.

The judge said that this case fell within the Supreme Court’s “rarest of the rare cases test” because of the display of “extreme mental perversion” and “exceptional depravity of mind”. The essential distinction here is between ordinary murders and gruesome and ghastly murders. While the former warrants a life sentence, the latter warrants a death sentence. (Cases in support can be found here, here, here and here).

fournooses_deathpenaltySecondly, the aggravating factors overwhelmed the mitigating factors. The defence had put forward various mitigating factors such as the young ages of the accused, their socio-economic conditions, their clean antecedents, and their being under the influence of alcohol at the time of committing the crime, to argue for a lesser sentence. These reasons, the judge said, were neither special nor adequate. While determining the sentence in rape cases, the relevant factors should be the conduct of the accused, the state and age of the victim, and the gravity of the criminal act. The socio-economic status, religion, race, caste, or creed of the accused or the victims should be irrelevant considerations in sentencing. (Cases in support can be found here, here, and here).

According to the judge, the aggravating factors in this case outdid the mitigating factors. The demonstration of exceptional brutality, the extreme misery inflicted on the victim, and the grave impact of the crime on social order were some of these factors.

One particular aggravating factor deserves special mention – the manner in which the crime aroused “intense and extreme indignation of society”. The imposition of the death penalty by any court is not “judge-centric”. The satisfaction of the “rarest of the rare” test largely depends on the social approval for the death sentence for certain types of crimes. The judge relied heavily on a recent decision, in which the Supreme Court said that while determining whether a particular crime warrants a death sentence or not, the court has to look into factors such as society’s abhorrence and extreme indignation towards particular crimes. In my opinion, the judge’s recognition of social responses as an aggravating factor is commendable and shows the tremendous impact that the numerous civil society led protests, demonstrations, and debates that followed the horrific rape have had. The media was the primary vehicle for the communication of these protests and this case also highlights the media’s potential to affect sentencing.

(Sohini Chatterjee is a third-year student at the WBNUJS, Kolkata. She is a member of the NUJS Law Review.)

Written by myLaw

Exceptions to juvenile justice law would be premature

On January 28, 2013, a Juvenile Justice Board declared one of the six accused in the horrific gang rape in New Delhi, a minor. The incident, which occurred in December last year and led to the death of the twenty-three-year-old victim, had aroused anger about violence against women. The decision of the Juvenile Justice Board, which is likely to exempt that accused from a regular criminal trial and punishment, has raised doubts about the juvenile justice framework in India.

Anant Asthana

Anant Asthana

Anant Asthana, a Delhi-based lawyer whose work focuses on juvenile justice, spoke with us about the Juvenile Justice (Care and Protection of Children) Act, 2000 and commented on the demands that have been made in light of the recent events.

Edited extracts from the transcript of the conversation:

India has had laws for the reform and mainstreaming of children since the early nineteenth century. The earliest was the Reformatory School Act, 1897. That law was about stopping young people from getting into deviancy or crime and bringing them back to mainstream society by giving young people an opportunity to gain vocational skills and job opportunities. Since then, India has constantly upgraded its laws.

From ‘juvenile delinquents’ to ‘juvenile in conflict with the law’

“The first comprehensive law we had was the Children’s Act, 1960.” Even though it was intended as a national legislation, it was applied only in the Union Territories because of existing provincial laws. In 1986, the Juvenile Justice Act, 1986 (“the 1986 Act”) was passed. It dealt with children in two categories — “juvenile delinquents” and “children in need of care and protection”. The relevant age to attract the provisions of that law was sixteen years for male children and eighteen years for female children. This law provided for the differential treatment of children. Children would not be sent to jails. They would not be tried in the regular criminal courts meant for adult criminals. Further, instead of being subject to punishments, they would have an opportunity to reform themselves. The idea of providing differential treatment to children was therefore prevalent in India even before the United Nations Convention on the Rights of the Child (“the Convention”) came into existence in 1989.

After India signed the Convention in 1992, it was mandatory to upgrade its domestic legislation to conform to the standards provided in the Convention. A highly respected treaty, the entire world except for the United States of America is a signatory to it now. Pursuant to it, the 1986 Act was amended and the new law, the Juvenile Justice (Care and Protection) Act (“the Act”) was brought into existence in 2000.

The Act removed the sex-based anomaly in the relevant age. The age of eighteen was made applicable for male and female children. The term “juvenile delinquent” was replaced by the term “juvenile in conflict with the law”. This new terminology was significant because it spoke to the fact that no blame was attributed to the child.

The machinery of the Juvenile Justice (Care and Protection) Act, 2000

State governments were empowered to create three-member Juvenile Justice Boards for each district or group of districts to deal with children who fell into this category. A Metropolitan Magistrate is the Chairman of the Board. There are two other members and they are picked from child psychology and child development backgrounds. The Board’s composition is supposed to enable it to look at children with a judicial and a social mind.

There are no trials before the Board, merely an enquiry into whether the child in question is in conflict with the law. Before that, there is an age enquiry, a crucial part of the law. In order to bring any person under the purview of this Act, it is important to establish first whether that person is a child. If the person turns out to be an adult, then he is sent to the regular courts for trial. The enquiry is a fast proceeding. Once the finding as to whether the child is in conflict with the law comes, the Board starts looking at why the child came into conflict with the law. Social workers, counselors, probation officers, and welfare officers assess the child’s family, education, social background, and status of addictions to prepare a report for the Board about the factors that led to the child being in conflict with the law. Based on this report, the Board decides on a course of action to rehabilitate the child. The Board and the authorities under it implement the order. “In that way, this law is very good model of crime prevention.”

Image above is a composite of the images on Kyle Lease's Flickr photostream  and on HERRUWE's Flickr photostream. They have been published under a Creative Commons Attribution-ShareAlike 2.0 Generic License and a Creative Commons Attribution 2.0 Generic License respectively.

Image above is a composite of the images on Kyle Lease’s Flickr photostream and on HERRUWE’s Flickr photostream. They have been published under a Creative Commons Attribution-ShareAlike 2.0 Generic License and a Creative Commons Attribution 2.0 Generic License respectively.

The demand to change the relevant age to sixteen

There are two kinds of demands being made in the background of this recent case. One is to bring down the age from eighteen to sixteen. In this context, reference has been made to the Indian Penal Code, 1860 which talks about immunity from criminal responsibility only up to the age of twelve. The second demand is to retain the current age under the Act but provide for the Magistrate to be able to treat specific cases as exceptions in the case of serious offences so that a person can be subjected to the trial and punishments meant for adults.

The demand to reduce the relevant age under the Act to sixteen is based on the argument that a person should be made responsible for actions where he was aware of the consequences of those acts. The Act however, does not only look at whether the person in question was innocent, but also offers a window for reformation. Instead of looking only at whether the person was aware of the consequences of his actions, the Act also looks at whether the person was capable of being reformed. The Convention also says that the possibility of reform is a material consideration.

The Act acknowledges the fact that our country has a huge population of young people who live in poverty and under massive exploitation with conditions like dysfunctional families and unemployment. If children get into crimes, the state and society should be held accountable. Society has failed to give them care and provide an environment, which could have prevented them from getting into crime. This is why the state and society have to take responsibility for the reformation of children.

The possibility of reform is also part of the Supreme Court’s death penalty jurisprudence. Only after the possibility of reform is eliminated can a court give a positive finding that it was a ‘rarest of the rare case’ fit for the death penalty. There is evidence that possibility of reform is very high up to the age of eighteen. “Let us use that possibility first before subjecting a person to the criminal justice system.” The reservation about subjecting someone to the criminal justice system is because it is based on retribution and deterrence, and because of the environments in jails. There is a lower possibility of someone coming out of one as “a good person”. As a country of young people, we cannot afford a situation where more and more people are pumped into jails at a very young age, to come out as hardened criminals. Thus, there has been serious thinking behind fixing the relevant age under the Act as eighteen.

Treating serious crimes exceptionally

The discussion in the current context of anger over the gang rape in New Delhi in December should be about whether exceptions should be made under the Act. However, what should be the indicator for an exceptional case? “Will it only be the gravity of the offence? How do you decide what is serious?” The process of making that decision will open the floodgates. For everybody who is a victim, the offence is a serious one. People will demand that the rule facilitating the exception be applied in almost every case. It will be a functional hazard before the Board.

While we can discuss this option further, my opinion is that this is not the right time to think of it because we have not implemented the current law properly. In 2010, the Supreme Court said that governments had made a mockery of the juvenile justice system. The police also had a bad record. In the Delhi High Court, there was a case, which showed that hundreds of people in Tihar Jail turned out to be children. “The police in fact, should be last persons to demand a change in this law because they have never given full effect to it.”

The whole debate over creating an exception under the Act is premature. Our efforts, energy, and money should go into ensuring that the law is implemented. There are eighty thousand children on the streets of Delhi and many of them are addicted to substance abuse. This a national shame and the only purpose that will be served by amending the law to provide for exceptions right now is that more and more children will be sent to jail and our anger will be satisfied.

He concluded by saying that the general public was misinformed and misguided on the issue. “If people are talking about America, America is the worst model to look at when it comes to juvenile delinquency.” In India, the figure of juvenile crime has not risen above forty-thousand in a single year. It goes into lakhs of lakhs in the United States and is therefore, a non-comparable example. “People need to be given correct information”, he said.

Another piece of misinformation is that the Act is not working. “It is working despite all the problems we have with its implementation. Reformation rate is very high. Repeat offender rate is very low, somewhere around three or four per cent.”

 

(Aju John is part of the faculty at myLaw.net)

Written by myLaw

What is wrong with Indian rape law?

Provisions in Indian law covering the offence of rape have come under scrutiny since the brutal rape in New Delhi last month. Mrinal Satish, an Associate Professor at the National Law University, Delhi, spoke with us and recorded his views on the deficiencies in the law relating to rape. Mr. Satish, who is also a doctoral candidate at Yale Law School, focused on problems with sentencing in rape trials.

Mrinal Satish

Mrinal Satish

Edited extracts from the transcript of the talk.

Sections 375 and 376 of the Indian Penal Code, 1860 (“IPC”) deal with the offence of rape. Most cases under this fall under Section 375 “secondly”, where the prosecution has to prove that the man had sexual intercourse with the woman without her consent. Under Indian law, unlike the law of several other countries, there is no question of having to show that the accused knew or intended to cause the act of rape. The burden on the prosecution is therefore lower in India.

Reporting the crime

Once the offence is committed, a First Information Report (“FIR”) can be filed in the nearest police station. The Supreme Court has held in various cases that a delay in filing the FIR should not be considered detrimental to the case or become the basis for disbelieving the prosecution. On the facts and circumstances of each case, the court can assess whether the delay can be condoned. In most cases, the delay is condoned because people might not want to report the offence of rape immediately.

The police do not have any guidelines on the manner in which rape cases need to be recorded. Guidelines that women police officers should be in police stations and that the crime should recorded by them are not concrete ones.

Medical examination

Once the FIR is recorded, the processes that follow are those of recording the statement of the survivor and the medical examination. Section 164A of the Code of Criminal Procedure, 1973 (“CrPC”) deals with the manner in which medical examination has to be conducted. As far as possible, only a female medical officer in a government hospital should examine a woman. On the issue of what evidence should be collected, some states have protocols and proformas. Most other states do it through practice and some issues have come up in this context regarding the nature of evidence recorded during a medical examination.

The doctor has to look for the presence of forensic evidence. Even though the Section does not require ejaculation, the presence of semen strengthens the case against the accused. Similarly, while the absence of injuries is not a factor that is detrimental to the case, the presence of injuries on the body of the victim strengthens the case. Doctors, however, do make a note of the fact that there are no injuries and no semen along with value judgments about why they think that has happened. They are not required to do this. There are cases where doctors testify and record in a medical examination that there had been no injuries and from that, implying that there had been consent. This is a problematic aspect of the entire medical examination process.

The other egregious forms of medical examination is the “two-finger test” where the doctor inserts one or two or more fingers into the hymenal orifice of the victim to figure out whether previous penetration had taken place. This understanding of medical jurisprudence comes from authors in the late nineteenth and the early twentieth centuries. They wrote that the rupture of the hymen is an essential ingredient to determine whether sexual intercourse had taken place. Medical science has subsequently shown that this is not essential. Medical jurists of that time also said that they had seen cases where the hymen had not been ruptured even in women who had reported past sexual encounters. The reasoning was that if the hymen was not ruptured and if the doctor was able to insert two fingers, then it showed that a body of the size of an erect penis could have previously penetrated the vaginal orifice of the woman.

The test however, was used to show ‘habituation to sexual intercourse’. Until Section 155(4) of the Indian Evidence Act, 1872 remained in the statute books (it was repealed in 2003); the past sexual history of the woman could be raised in cross-examination to impeach her credit-worthiness. The defence would use this fact of “habituation” to say that the woman was of “bad character” and hence her testimony should not be given enough weight.

The Supreme Court has held that the sole testimony of the woman was sufficient to convict if the court found such testimony reliable. Mr. Satish said that the two-finger test was relevant now because in determining whether to rely on the testimony of the woman, the defence would attack the credit-worthiness of the victim and argue that conviction should not be based solely on the testimony of the woman.

In most rape cases, there are no witnesses. The only evidence is the testimony of the woman and any forensic evidence that is available. If forensic evidence is not available, the defence can secure an acquittal if the creditworthiness of the victim is attacked. “With the repeal of Section 155(4), the entire issue of habituation to sexual intercourse should have gone out of the window. Unfortunately what happened subsequently was that since medical jurisprudence texts said that the “two-finger test” could also be used to show penetration, it remained in use in medical protocols. Consequently, it continued to be recorded by doctors in the medical examination and it comes into the evidence in the rape trial before courts.” Indirectly therefore, the prosecution, the defence, and the court gets to know of the sexual history of the woman and that, Mr. Satish said, is making a difference in the adjudication of rape cases.

Law reform has to say that ‘past sexual history’ is absolutely not relevant to any part of the criminal proceeding. The Criminal Law (Amendment) Bill, 2012, which is before the Lok Sabha, has said that past sexual history would not be relevant in the issue of consent. Mr. Satish said that this had to be extended to other parts of the rape trial and to other limbs of Sections 375 and 376. Law reform would also have to say that the ‘two-finger test’ is useless and that the invasive procedure should not be conducted on survivors of rape. It would also have to indicate what the doctor has to look for in a medical examination — forensic evidence if available and recent evidence of penetration. All the tests that look to determine penetration before the time period in question are useless. Law reform should be targeted towards that. More than law reform, medical protocols should also be reformed, which involves the reform of medical textbooks and syllabi.

Guilt determination

One of the important things that courts do in determining the reliability of the victim is to look at her demeanour. Under the CrPC, the judge should record the demeanour of every witness and that is considered an important part of the trial process. “If you look at appellate court judgments, they normally say that the trial court has had the advantage of looking at the witnesses.” It is felt that by looking at their demeanour, courts are able to determine how much weight should be given to the testimonies of the witnesses.

Another issue that has arisen frequently is how the victim should behave while testifying. There have been studies conducted in the United States and other Western countries about the “CSI effect” and perceptions about how a victim has to behave. Juries are known to have relied on their past experiences in dealing with trauma to see how they expect witnesses to react in a similar situation. “In the Indian context, in rape cases, you see courts being very sympathetic to victims who are emotional on the stand, who cry, shiver, faint, or have to be given water. Courts even say that these actions obviously show that the victim was traumatised and consequently her testimony should be completely believed.” Indian courts have therefore contributed to the stereotype of what a rape victim looks like and how they behave.

SupremeCourtofIndia_rapeallegations_Westernwoman_Indianwoman

In the 1983 Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, the question before the Court was whether the sole testimony of the woman should be considered. In ruling on this issue, the Court sought to make a differentiation between what they called a “Western woman” and an “Indian woman”. They gave eight reasons why a “Western woman” would falsely allege rape and twelve reasons why an Indian woman would not do so. These twelve reasons include the fact that an Indian woman is from a non-permissive society and so would not be keen to report any incident likely to affect her chastity; that if she is unmarried, it would be difficult for her to secure a suitable match from a respectable family; that she would fear being taunted by others; that if she was married, her husband and his family would want to avoid the stigma that comes with rape and would not want to give too much publicity to it; and that the victim would fear being considered promiscuous. The Supreme Court had thus given importance to the notions of honour, shame, and chastity. In Rafiq v. State of Uttar Pradesh, the Supreme Court said that a woman feels a deep sense of “deathless shame” when she is raped.

All these cases constructed a stereotypical rape victim who really treasures her chastity and her virginity, and therefore, would be traumatised and would react in a particular way. “If you look at the way the courts adjudicate this issue, these stereotypes are still prevalent. That, in my opinion, is at the core of the problem that lies with rape adjudication in India currently.”

The past sexual history was relevant here as well because if a woman had sex outside of marriage, it is felt that she had nothing to lose. Rape is not considered a crime against bodily autonomy and dignity, but more a crime against chastity. “In my assessment, this is an important factor that comes into rape trials and affects the manner in which courts determine whether the defendant is actually guilty of the crime. Therefore, the clichéd expression that it is a trial of the victim and not a trial of the accused in rape cases.”

Sentencing

In his study of disparities in sentencing in rape trials in India, Mr. Satish found that the site of stereotyping had shifted from the guilt adjudication stage to the sentencing phase of the trial.

“In cases where courts actually find the accused guilty of the crime, then some of the stereotypes spill over to the sentencing phase of the trial.” The reason is various Supreme Court judgments that suggest that the sole testimony of the woman should be a sufficient basis for conviction. In 2008, the Supreme Court also ruled that the absence of medical evidence was not reason enough to acquit the accused if the testimony of the woman is available. It is in this context of the massive reduction in judicial discretion in the guilt determination phase that stereotyping has spilt over to the sentencing phase. Some theorists have spoken about a ‘ballooning effect’ — if you take a balloon and press one side, the air shifts to another side. Similarly if you squeeze the discretion on one side, it shifts to the other side of the system. Rape sentencing in India is a classic example of this.

In the context of rape sentencing, medical evidence plays a very important role, something akin to a lie detector. “What I found was that where the doctor was able to insert two fingers into the hymenal orifice of the woman, relative to cases where the doctor was not able to do that, sentences given to defendants decreased.” This showed that judges were actively considering the past sexual history in their sentencing decisions.

He also found that in cases where injuries were present, sentences were higher. Even though the presence of injuries was an aggravating factor, the worrying aspect was that where injuries were not present, the sentences were much lower. The minimum sentence for Section 375, covered in Section 376(1), is seven years. “In cases where injuries were present, you could see sentences going up to ten years as well. But where injuries were not present, you could see sentences coming down to five years, three years, and the like.” It showed that courts were considering the absence of injuries to imply some sort of consent as well.

Image above is from Pixabay.

Image above is from Pixabay.

The marital status of the victim was another issue. Sentences were higher when the victim was not a virgin. Similarly, sentences given in cases of the rape of married women were lower than sentences given in cases of the rape of unmarried women. The conclusion here is that courts were considering the prospect of marriage in rape sentencing. There might be an argument that it may be justifiable in some contexts but generally, this stereotype is very disturbing. Justice Markandey Katju’s judgment in Baldev Singh v. State of Punjab got a lot of media coverage recently. In that case, the Supreme Court reduced the sentence and ordered Rs. Fifty thousand compensation on the grounds that between the incident of rape and the time the case reached the Supreme Court, the woman had married.

Rape myths, which are prejudicial stereotypes or false beliefs about rape, rape victims, and rapists, are another issue. In most cases, they end up being prescriptive and mandate how a woman should react to a situation of rape. One of these myths is about what a woman goes through when raped by a stranger in contrast to a situation where she is raped by an acquaintance. In cases where women had been raped by acquaintances, courts generally gave lower sentences. Studies have shown that the myth that being raped by strangers was not more traumatic than being raped by acquaintances, so its perpetuation in sentencing is problematic.

The other reason why there are disparities in sentencing is the meaning of “adequate and special reasons” to reduce sentences under Section 376 of the IPC. Courts have used a variety of criteria here including the young age of the accused, the fact that the accused hailed from a rural area, the fact of the illiteracy of the accused, the fact that the accused had a family to support, caste, and various other factors.

Law reform

One of the proposals for law reform that have been in the limelight since the brutal rape in Delhi is gender neutrality. Should the law recognise that a man can also be raped?

Another issue, which arises in the context of custodial rape under Section 376(2), is whether custody should be confined to premises. For instance, in the custodial rape by a policeman should we look only at the physical premises of a police station? Law reform efforts suggest that this should not be restricted to the premises and should be broadened to include situations where the victim is in a position of vulnerability and the offender is able to influence her through breach of trust and other factors.

The other issue that requires reform is rape sentencing. In the context of the December rape, there have been calls for chemical castration, the death penalty, and the like. We still do not recognise that there is a bigger problem with the manner in which sentencing occurs in rape. Various other countries have some sort of principles and guidelines that they follow in sentencing with respect to any offence. Maybe we need to look closer at laying down what factors should be considered mitigating, and what factors should not be considered at all.

Law reform also needs to start from the stage of rape reporting itself. At the moment, there are no guidelines about the manner in which the police records FIRs given by rape survivors. Other countries have an interface of working with NGOs or with people trained to be able effectively record FIRs. Some thought needs to be given to these processes.

Medical examination protocols should also be amended. There has been a lot of demand for women judges, women prosecutors, and women policemen. “In my assessment, that is not the only solution because it is a question of changing the approach that the legal system has to the offence. Just by replacing men with women, that problem will not get solved.”

 

(Aju John is part of the faculty at myLaw.net)

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Why we need to keep talking loudly about rape laws

By Abhayraj Naik

(This article was originally published in September 2006 in the ‘Editor’s Pick’ section of http://www.indlaw.com)

Neither the judiciary nor the legislature have shown any interest in amending India's grossly inadequate rape laws. Photograph on the left is by Venkit N.Y. Photograph on the right is from the website of the Parliament of India.

Neither the judiciary nor the legislature have shown any interest in amending India’s grossly inadequate rape laws.
Photograph on the left is by Venkit N.Y. Photograph on the right is from the website of the Parliament of India.

The metaphor of ‘rape’ — usually conjures up unpleasant sensations to the average imagination — an act that is primly undermined as a mere moral aberration in ‘civilised’ societies, and one that is apathetically ignored as an unfortunate but jaded reality in nations still on the path to civilisation. Ironically, the absolute ubiquity of rape reveals the magnitude and urgency of the malaise at a shockingly real level – simply put, rape happens everywhere. In villages, in posh penthouse bedrooms, in police stations, in temples and churches, in marriage, in war and peace, in all continents, in day and at night, to men and to women and to transvestites and to children and to most every brand of person — of all ages and colours and creeds. The same sordid play is re-enacted every single day somewhere — a dastardly perpetrator(s), an innocent victim(s), and a setting conducive to the enactment of a sexual onslaught. For victims, it remains a horrifying reality — an affirmation of the painful nightmarish nature of worldly existence, and the non-sanctity of the barest of human entitlements — the integrity of one’s own body. For the perpetrator — it represents an affirmation of power, a satisfaction of sexual perversion, an exercise of humiliation and violence, and a mental belief that somehow ‘authorises’ the violation of another person’s body against their conscious will and despite their opposition. Women and children have suffered as victims of rape much more than have men — this is a simple empirical reality that is undeniable if one were to take resort to statistics and the guise of numbers.

In technical terms, rape is considered an illegality across the world — the criminal law of most countries explicitly dedicates itself to the treatment of rape as an offence against society (and the victim, of course) and prescribes a punishment for the offender. The term ‘rape laws’ encompasses legal provisions of a wide nature — these include constitutional provisions of relevance to actual or potential victims of rape, penal provisions prescribing rape and attempt to rape as criminal offences, penal provisions prescribing punishment for rape and attempted rape, evidentiary rules of special relevance to rape cases, and finally, procedural provisions of special applicability to cases involving rape. The legal treatment of the phenomenon of rape assumes unique significance to women and children — since they as a collective constitute the primary object or beneficiaries of the law’s protective significance. Given these factors of empirical reality, it is something to worry about then that the Indian law relating to rape continues to be rife with instances of absolute immaturity and insensitivity. That is why we need to keep talking loudly about rape laws.

The word ‘rape’ traces its origin to the Latin term rapio, which literally translates to ‘a forcible seizure’. References to rape and its linguistic predecessors (ravishment, defilement, despoiling, and so on) are rife in mythology, in literature, in films and soaps on television, in newspapers, in moral conscience and the lack thereof, in law and society, and in worlds and lives unlawful. In 1628, Lord Edward Coke, one of the evergreen names of legal and jurisprudential annals, defined rape as “when a man hath carnal knowledge to a woman by force and against her will.” Nearly four hundred years later, Indian criminal law reflects some of the same short-sightedness: the definition of rape under Section 375 of the Indian Penal Code, 1860 (“the IPC”) takes into account only penile-vaginal penetration as sexual intercourse for purposes of constituting the offence of rape. All other physical and mental injuries resulting through sexual onslaughts against women and children are to be dealt with either under the head of ‘outraging the modesty of a woman’ (under Sections 354 and 509 of the IPC) or as constituting ‘unnatural offences’ (under Section 377 of the IPC, the same legal provision that criminalises homosexuality in India). Shockingly, the law does not even acknowledge the existence of the phenomenon of raped men, thereby leaving male rape victims with the only option of resorting to the homosexuality-proscribing Section 377 when the alleged rapist(s) is male, and with absolutely no appropriate legal option to avail of when the alleged rapist(s) is female. Similarly, Indian laws do not provide for women raped by women.

The Indian judiciary’s history of dealing with rape cases has never really inspired much confidence. Campaigners, who have been long fighting for the amendment of rape laws, will most often point out Mathura’s caseas one damning singular confirmation of the highest judiciary’s blemished record on the subject of rape. The case of Mathura is also shockingly illustrative of the Indian police and legal regime’s callous treatment of the subject of custodial rape of women. In March 1972, Mathura, a sixteen-year-old tribal girl from Chandrapur district, Maharashtra, was taken to the police station by her brother and some other relatives since they were concerned that she was attempting to elope with her lover (despite her being under age). The two policemen on duty, who had said that they wanted to record Mathura’s statement when she was alone, raped her while her relatives waited outside. The Sessions Judge who first pronounced on the case, unbelievably held that since she had earlier eloped with her boyfriend, she must have been habituated to sex, and, hence could not be raped in the eyes of the law. The High Court thankfully at least reversed the judgment and declared a finding of guilt while sentencing the policemen to a mere six years in prison. On appeal in Tukaram v. State of Maharashtra, AIR 1979 SC 185, however, the Supreme Court once again reversed the order. The prominent logic of the decision of the country’s highest appellate court was that since Mathura had not raised any alarm, and since there were no visible injury marks on her body – she must have given her consent to the sexual act in question. The sheer absurdity of the Mathura rape decision galvanised the Indian women’s movement into agitating for several broad-ranging reforms of the criminal law that dealt with rape. The reformative battle has been slow and arduous, with a few victories along the way. For example, the government passed the Criminal Law Amendment Act in 1983, which created a rebuttal presumption in cases related to custodial rape placing the onerous burden of proof on the accused. Amendments have included the stipulation that the penalty for custodial rape should not be less than seven years imprisonment; provisions for in-camera proceedings that are more sensitive to the victim’s interests; and provisions stating that the disclosure of the victim’s identity a punishable offence. There have been signs of judicial progressiveness as well — judgments have increasingly begun to reflect sensitivity towards the victim’s situation; delays in lodging First Information Reports (“FIRs”) are no longer considered seriously detrimental to the victim’s allegation; onerous burdens of proof have been increasingly lightened due to greater judicial credibility towards the victims’ testimony; sensitivities have been recognised and remedies fashioned to buttress the adequacy of procedural laws, and so on. Despite these advances, the central bulwark of Indian rape law (with antiquity hailing back to the colonial origin of the IPC) — that is, the legal requirement of penile-vaginal penetration as a sine qua non for proving the offence of rape — has stiffly withstood all attempts at amendment, change and progression. The Sakshi case represents the most recent example of this still unresolved quandary.

In 1997, Sakshi, (an organisation involved in issues concerning women and children, particularly those who had been victims of any kind of sexual violence), approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. The petitioner contended that the narrow understanding and application of rape law only to the cases of penile-vaginal penetration under Sections 375 and 376 IPC ran contrary to the existing contemporary understanding of rape as an intent to humiliate, violate, and degrade a woman or child sexually and, therefore, adversely affected the sexual integrity and autonomy of women and children, in violation of the right to life guaranteed under Article 21 of the Constitution of India. The petitioner prayed that the court issue a writ in the nature of a declaration declaring inter alia that ‘sexual intercourse’ as contained in Section 375 of the IPC should include all forms of penetration such as penile-vaginal penetration, penile-oral penetration, penile-anal penetration, finger-vaginal penetration, finger-anal penetration, and object-vaginal penetration. On receiving the petition, the Supreme Court directed the Law Commission of India to respond to the issues raised in the petition.

Following detailed consultations with Sakshi and a few other women’s organisations, the Law Commission released its 172nd Report on the Review of Rape Laws in 2000. The Law Commission recommended changing the focus from rape to ‘sexual assault’, the definition of which was to go beyond penile-vaginal penetration so as to include penetration of an orifice by any part of the body as well as by objects, taking into account cunnilingus and fellatio. Inter alia, the Commission suggested that the law relating to sexual assault be made gender-neutral, that is, to bring about a situation where men and women can be charged for the rape of men, women, or children. In light of these proposed changes, the Commission’s Report also asked for Section 377 of the IPC to be dropped, thereby effectively decriminalising consensual sodomy. Following the release of the Commission’s Report, the government has shown no sign of implementing any of these recommendations on the definition of rape. In 2004, when the Supreme Court finally pronounced its decision in Sakshi v. Union of India, (2004) 5 SCC 518 — all hopes of an expeditious solution to the thorny definitional issue were bid adieu once and for all.

Delhi gang rape protests. Photograph above is by Shilpi Boylla.

Delhi gang rape protests.
Photograph above is by Shilpi Boylla.

The Supreme Court in the Sakshi case held that it would not be in the larger interests of the State or the people to alter the definition of ‘rape’ as contained in Section 375 IPC by a process of judicial interpretation as sought by the petitioners. The court noted that the law relating to Section 375 of the IPC was well settled, and giving any wider meaning to Section 375, IPC would lead to a serious confusion in the minds of the prosecuting agency and the courts, which would unnecessarily prolong legal proceedings and would have an adverse impact upon society as a whole. Two disturbing inferences arise from the Supreme Court’s 2004 ruling. Firstly, it throws the onerous burden of progressive change relating to archaic rape laws back to the Legislature — the very same legislature that has been content to let shockingly patriarchal provisions (especially so, for example, relating to the issue of marital rape) lie undisturbed for long as the effective law on the statute books. Clearly, the highest court of the country displayed strongly patriarchal conservatism in letting skip an opportunity to bring about justice through a gender-sensitive interpretation of the law — a conservatism, in sharp contrast to the urgent activism that the same court has espoused in several other prominent areas including the environment, constitutional amendments, and so on. Second, the very reasoning of the Court has dangerous and sinister implications. The Court’s primarily rationale, in simplified terms, was – since the law under Section 375 is well established, and since the legal machinery is currently familiar with only penile-vaginal penetration as rape, therefore, a change however progressive or sorely needed, cannot be made because it is just too darned inconvenient. Such an escapist explanation defies reason — surely, the mere fact that the existing legal machinery has grown familiar with a grossly inadequate provision of rape law cannot serve as a justification against amendment of the tainted legal provision in perpetuity. For such an argument to be logically countenanced would well imply that jurisprudentially the law is to remain static, ordered, and non-responsive to the changing needs of justice when viewed through the prism of gender. In particular, it would strike a bitter blow at one of the very basic claims of feminist jurisprudence — the need for reconstructing a feminist jurisprudence or a human jurisprudence in light of the inequity of the present patriarchal history, structure, and language of the law.

Clearly, the scenario is set for a crucial test — for how long will the legislature, with or without the tacit support of the nation’s judiciary, continue to blindly uphold a grossly inadequate definition of rape as limited to mere penile-vaginal penetration? For how long will the country’s legislature be squeamish to legitimately respond to the explicit realities of the experiences of victims of sexual assault? The judiciary has abdicated on the urgency of the issue and seems content to let the Legislature take the lead. The politicians and the legislators unfortunately seem to be caught up in other ostensibly weightier matters of national importance. It is vital that this definitional (non)conundrum be convincingly and appropriately answered before we can even begin to consider ourselves as a truly civilised and mature country upholding the rule of law for all people. With this as the status quo, we simply have to keep talking loudly about rape laws in India until the Powers-That-Be react and sensibly respond.

The writer gratefully acknowledges comments and suggestions on the topic from Dr. V.S. Elizabeth, National Law School of India University, Bangalore.

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A plea to the Saket Bar

 By Tennille Duffy

 

For several days, protestors gathered in parts of central Delhi. Photographs by Shilpi Boylla

For several days, protestors gathered in parts of central Delhi.
Photographs by Shilpi Boylla

Two days before charges were presented in the new fast-track District Court at Saket in New Delhi, the Saket District Bar Council announced that its advocates would refuse to represent the accused in the Delhi gang rape case. The accused will still receive representation by way of lawyers appointed by the government, but the representatives of the Saket Bar miss the point when they argue that their boycott will help ensure speedy justice in the case. The absence of a good and vigorous defence may contribute to a speedy trial, but in no way can it ensure justice. A good defence is one of the most vital ingredients in the criminal justice system and it is essential for ensuring that the justice that everyone in the nation is, rightly, screaming for, is done.

Doing justice is not just about locking people up after a show of a trial. Real justice is done when all parts of the system come together and work properly. This means that all the attendant checks, balances, and protections — including a proper defence — must come into play. It is the professional obligation of members of the Bar to uphold the system. Does the Saket Bar think that it only needs to operate some of the time? Is their faith in the very system they work within, so weak that they refuse to take part in it?

The truth is that India has, for better or worse, inherited an adversarial system of criminal justice from the British legal tradition. Two parties — the prosecution and the accused, represented by their lawyers — come together, in front of an impartial judge, and argue the case. In this system, lawyers defend people accused of both petty and heinous crimes every day. That is their job and it plays a vital part in ensuring the guilty are punished. Perhaps it’s not always a pleasant job, but it is an important one.

Indeed, the tradition of the Bar is to see it as a mark of the honour of the profession that advocates conduct themselves dispassionately and that everyone has access to representation, without fear or favour. One of the first lawyers to breathe life into this principle was John Cooke. Courageously, he agreed to conduct the prosecution of King Charles I in 1649 for crimes of high treason related to the English Civil Wars. A monarch had never been tried before a court of law before – this was a monumental moment in legal history, and in the history of the Bar. In the end, John Cooke paid for his principles with his life. He was charged with regicide under Charles II, and hanged, drawn, and quartered in 1660.

John Cooke paid with his life for prosecuting the King. Image above is originally from Wikipedia Commons.

John Cooke paid with his life for prosecuting the King.
Image above is originally from Wikipedia Commons.

The modern value of the defence lawyer’s job is reflected in rules of advocacy that exist around the world. In particular, there is an obligation upon an advocate — provided they have the time and expertise — to take any case. Taken from the long-standing English ‘cab rank’ rule, it is adhered to in jurisdictions from Canada to Australia, and reflected in Rule 1 of the “Rules on an Advocate’s Duty Toward the Court” in the Bar Council of India Rules. This Rule reads, in part, “An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he proposes to practise.”

The Indian legal system requires proof beyond reasonable doubt, and holds to the presumption that people are innocent until proven guilty. This is spoken of as the ‘golden thread’ that runs through the criminal justice systems of the common law world, thanks to the House of Lords judgment in Woolmington v. DPP, [1935] UKHL 1. The often-repeated maxim to justify these principles is that ‘it is better that one hundred guilty men go free than one innocent man go to gaol’.

Another way to think about this maxim is perhaps more appealing to the demands for justice being made in India right now. Suppose the police were to get it wrong, and the mistake was not picked up because an innocent accused did not receive a proper defence. The consequence is not just that an innocent man might go to gaol. Another terrifying consequence is that the truly guilty man would still be out there.

We know enough about the police in India to know that they sometimes get it wrong. Sometimes, they frame people and leave the real culprits free. Sometimes, even judges are subject to improper influences. A fiercely independent Bar that provides a vigorous defence to everyone helps ensure that the real culprits are brought to justice.

It also helps to ensure that the trial is conducted smoothly and that the chances for an appeal are limited. Indeed, a good defence lawyer will provide clients with realistic advice about the strength of the case against them. This improves the chances that a guilty accused will plead guilty. A good defence lawyer will abide by the rules of advocacy and evidence and not make a mockery of court proceedings, nor allow their client to. A good defence lawyer is not interested in ‘getting their client off’ at all costs, but in representing their client fairly and within the bounds of the law. This should not impede the guilty being found guilty and being appropriately punished.

As with most worthwhile things in life, there is no short cut in this case, or any other criminal trial. Justice must be reached through the proper process and if a good defence is provided, we can all be much more certain that the right man, the guilty man, is behind bars and not still living free, having escaped the consequences of his horrendous acts.

So I make this plea to the Saket Bar – please do not boycott these accused, or any accused. Instead, work to make sure that every accused before the courts has the best defence possible. Campaign for the improvement of legal aid in India. Recognise your professional responsibility to uphold and improve this system of justice as best you can. Not necessarily because these accused deserve it, but because in this and in every single case, the citizens of India deserve the best criminal justice system possible.

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Misogynistic media

A newspaper report on the recent Gurgaon rape case concludes with the correspondent informing the readers that the victim was hired to “engage with male customers”. How is this piece of information relevant to the public at large? What does it really tell us about the crime? What it does, vaguely though, is describe the victim’s job. Is that relevant to the crime? Not really.

The reporting on the rape cases of the last few weeks has once again highlighted the Indian media’s failure to take into account some critical precautions while covering cases of sexual assault against women. Most crime reporters use the police as sources of information. The police often share a comfortable rapport with journalists who periodically seek them out for news. In private conversations, they possibly divulge more information than necessary. In an interview that I conducted last year with a few senior crime reporters, one senior law correspondent of an English daily admitted, that a good journalist always has more information than a copy needs. It is up to journalists to exercise their discretion, and leave out details that won’t necessarily benefit the story, the reporter added. Sure, the police should not be sharing intimate details of victims. Nevertheless, the media is obligated while reporting cases of sexual assault, to shield the identity of rape victims.

Section 228A of the Indian Penal Code, 1860 prohibits the disclosure, not only of the victim’s name, but also of facts that could lead to the identification of the victim, such as the place of residence, identifying or naming the victim’s family or friends, university, or work details.

The Press Council of India’s Norms of Journalistic Conduct (“the PCI norms”) warn journalists not to give excessive publicity to victims, witnesses, suspects, and accused. The paramount concern in addition to the protection of victims is that, in publishing intimate details of their lives, the media exposes them to unwarranted public scrutiny. This safeguard protects the accused as well. Much of that information fails to add any value, unless it serves a genuine overriding public interest. Such information often obliquely encourages questions about the victim’s character and panders to unhealthy public curiosity. In the T.I.S.S. rape case for instance, the media published details from the victim’s written statement to the police. That information did not serve any public interest.

So, how do the personal details of a victim’s marital status, like in the Gurgaon or Calcutta rape cases, add value to the story? How is it relevant to the crime? The Supreme Court in State of Karnataka v. Puttaraja, warned against the disclosure of the rape victim’s identity even in the printing or publication of judgments issued by the High Courts or the Supreme Court. The Court observed that, “social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated.” Further, the PCI norms prohibit the visual representation or photograph of not just the victim, but also her family or relatives to avoid identification.

Beyond the question of naming victims, the recent media rape narratives also follow a familiar trajectory. The key terms, “married woman”, “unaccompanied in a pub”, and “late at night” come together to the conclusion, “raped”. What does the media narrative of married women alone in pubs at night insinuate? It suggests that the woman was reckless or foolish to be out on her own that late. There is a chauvinist undercurrent in that detail. It invites the response – what was a married woman doing in a bar alone at night? Why was she there?

It offers little insight into the reasons for the crime. Such rape coverage in the media promotes curiosity and interest in the victim’s life. It does not add to our understanding of rape or why it takes place. Instead, it feeds the propagation of the dominant misogynist view, that women like these deserved to be raped.

 

(Sonal Makhija is part of the Research and Consulting team at Rainmaker.)

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