Rape survivors in India face significant barriers to obtain justice and critical support services despite legal and other reforms adopted since December 16, 2012 gang rape-murder of a 19-year-old physiotherapy intern in the national capital, who came to be known as ‘Nirbhaya’,
The report said women and girls who survived rape and other sexual violence often suffered humiliation at police stations and hospitals.
As per the reports, the women and girls who survive rape and other sexual violence often suffer humiliation at police stations and hospitals. Police are frequently unwilling to register their complaints, victims and witnesses receive little protection, and medical professionals still compel degrading “two-finger” tests. These obstacles to justice and dignity are compounded by inadequate health care, counselling, and legal support for victims during criminal trials of the accused.
Ashamed to say that “In several cases, the police resisted filing the FIR or pressured the victim’s family to ‘settle’ or ‘compromise’, particularly if the accused was from a powerful family or community,”
“Seven years ago, Indians shocked by the brutality of gang rape in Delhi called for an end to the silence around sexual violence and demanded criminal justice reforms.”
“Today there are stronger laws and policies, but much remains to be done to ensure that the police, doctors, and the courts treat survivors with dignity.”
It is correctly said by the Meenakshi Ganguly, South Asia Director that “it takes time to change mindsets, but the Indian government should ensure medical, counselling, and legal support to victims and their families, and at the same time do more to sensitize police officers, judicial officials, and medical professionals on the proper handling of sexual violence cases”.
The Criminal Law (Amendment) Act, 2013, expanded the definition of sexual offences to include sexual harassment, voyeurism, and stalking. In so many cases of sexual harassment against girls, there were delays by police in investigating the crimes and filing charge-sheets. Victim Parent’s said that they feared for their daughters’ safety after filing complaints because the accused received bail easily and then made threats.
Shameful act: A minor girl “Mansi,”(Changed name) 13, was raped by a man behind a railway station in Maharashtra in 2012. She reported the assault to the railway police but the man responsible was a financially well-off member of a landowning community. Instead of taking action on her behalf, the police held Mansi in custody for 12 days while they tried to get her to retract her complaint.
The lack of a witness protection law in India makes rape survivors and witnesses vulnerable to the pressure that undermines prosecutions. For instance, Khap Panchayats, unofficial village caste councils, often pressure Dalit and other so-called “low-caste” families not to pursue a criminal case or to change their testimony if the accused is from the dominant caste.
Indian law requires doctors to provide first aid or medical treatment, free of cost, to women and girls who approach them and disclose rape. The medical examination not only serves a therapeutic purpose but also helps gather possible forensic evidence.
In 2014, the Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence to standardize healthcare professionals’ examination and treatment of sexual assault survivors. The guidelines provide scientific medical information and processes that aid in correcting pervasive myths. It rejects the so-called “two-finger test” by limiting internal vaginal examinations to those “medically indicated,” as well as the use of medical findings for unscientific and degrading characterizations about whether the victim was “habituated to sex.”
However, because health care is a state matter under India’s federal structure, state governments are not legally bound to adopt the 2014 guidelines. Human Rights Watch found that medical professionals, even in states that have adopted the guidelines, often do not follow them. Rules in other states are often outdated and lack the detail and sensitivity of the 2014 central government guidelines. Even as the authorities begin to standardize the collection of forensic evidence, state healthcare systems have largely failed to provide therapeutic care and counselling to rape survivors. This includes advice on access to safe abortions and tests for SEXUALLY TRANSMITTED DISEASES.
Victims of sexual assault, particularly from poor and marginalized communities, also lack effective legal assistance. A 1994 Supreme Court ruling says that police should provide sexual assault victims legal assistance and keep a list of legal aid options – but they rarely do. As per the Human Rights Reports in 21 of cases police did not inform the victim of her right to legal assistance or offer legal aid options.
The national and state governments have taken several initiatives to support sexual assault victims, but without a monitoring and evaluation framework, they largely remain inadequate or ineffective. For instance, there are 524 fast-track courts across the country for expeditious trials in cases dealing with crimes against women and children. However, little will be achieved unless other key concerns are addressed, such as legal assistance to help victims navigate the system.
A central victim compensation fund created in 2015 mandates that rape victims receive a minimum of 300,000 rupees, but each state provides different amounts. The system is inefficient, and survivors wait a long time or are unable to access the scheme. Out of 21 cases documented by Human Rights Watch reports, only three survivors had received compensation.
“Reporting rape should not contribute to the victim’s nightmare. It takes time to change mindsets, but the Indian government should ensure medical, counselling, and legal support to victims and their families, and at the same time do more to sensitize police officers, judicial officials, and medical professionals on the proper handling of sexual violence cases.”
Illustrative Case from the Report
Barkha (not her real name), Uttar Pradesh
Police in Lalitpur district in Uttar Pradesh state refused to accept 22-year-old Barkha’s complaint of kidnapping and rape against three men who had attacked her and her husband in their home on January 30, 2016. Barkha said that two men beat her husband and took him away while the third, belonging to a dominant caste, raped her, abused her using caste slurs, and threatened to kill her if she went to the police. She said the police were reluctant to act because the main accused is a local leader of the ruling political party. Even after a court ruling, the police took another eight months to register the FIR. Meanwhile, Barkha and her husband had to flee the village and move hundreds of miles away after repeated threats and harassment from the accused and others in the village.
Kajal (not her real name), Madhya Pradesh
Kajal, 23, said she and her father were detained, threatened, and beaten up after they filed a complaint of gang rape in Neemuch district in Madhya Pradesh on September 14, 2015. She said that the police detained her father and told her to tell the magistrate that she filed a false complaint of rape at her father’s behest. The police also made her sign several blank pages, slapped her, and beat her with a stick. She said the police also threatened to arrest her father on false charges if he did not sign a statement that his daughter had filed a false complaint. Kajal said that out of fear she gave a false statement to the court. Police filed a closure report in December 2015, saying Kajal and her father filed a false case because of a land dispute with the man accused. She has since filed an appeal describing the intimidation. However, the chief judicial magistrate rejected the closure report and ordered the investigating officer to appear before the court.
Kajal’s husband and his family abandoned her after she reported the rape, and she returned to live with her parents. She and her parents were forced to move away from their home after threats from the accused. She was in urgent need of medical and counselling support for months after she was raped but the doctor who examined her did not provide any referral for counselling. Kajal told Human Rights Watch reports.
Her Words: “I have lost everything and everyone blames me. I didn’t even leave my home for a month after the incident. I was tired of listening to neighbours’ taunts. I had stopped eating, just lay like a madwoman at home. It felt like I had lost my mind”.
Failure to Provide Access to Adequate Health Services
Doctors in India are legally obligated to provide first aid or medical treatment, free of cost, to women and girls who approach them and disclose rape. The medical examination not only serves a therapeutic purpose but also helps gather possible forensic evidence. Under Indian criminal law, the prosecution can secure a conviction for rape based solely on the testimony of the rape survivor where it is cogent and consistent in so-called material particulars. Forensic corroboration is considered legally relevant but not essential. But in practice, judges and police give significant weight to forensic evidence, therefore necessitating standardized medico-legal evidence collection and awareness around its limitations.
In 2014, the Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence to standardize healthcare professionals’ examination and treatment of sexual assault survivors. The guidelines integrate processes geared to respect women’s and children’s rights to privacy, dignity, creating a non-threatening environment, and informed consent. The guidelines also provide scientific medical information and processes that aid in correcting pervasive myths and degrading practices around rape that have been reinforced by common medico-legal practices. It eliminates what is known as the “two-finger test” by limiting internal vaginal examinations to those “medically indicated” and rejects the use of medical findings for unscientific and degrading characterizations about whether the victim was “habituated to sex.”
The case of Palak, an 18-year-old Dalit woman who was kidnapped and raped in Madhya Pradesh, shows health professionals engaged in victim-blaming, further harming the survivor. Palak’s mother, who was in the room with her daughter during her medical examination, told Human Rights Watch reports that the doctor tried to insinuate that Palak was lying and that the sex was consensual. The doctor said to the victim that “If they had forced themselves on you, there should have been marks on your body, but you don’t have any. You must have done this of your own free will.” The victim became even more scared after the exam.
A senior gynaecologist at a municipal hospital in Mumbai, who has often been called upon to testify in court, told Human Rights Watch reports that judges, especially in lower courts, are often unaware of the medico-legal guidelines and that police requisition forms also ignore the guidelines. “The police always ask us whether a forceful [sexual] assault has taken place, whether semen is present,” the doctor said. “They haven’t been trained and that’s why they ask such questions. For the police, sexual assault is only [penile] penetrative.”
Even as authorities take small steps toward implementing guidelines to standardize the collection of forensic evidence, the healthcare system has largely failed when it comes to providing therapeutic care and counselling to survivors.
Lack of Legal Assistance
Inadequate legal assistance is especially a concern for survivors who come from poor and marginalized communities. A 1994 Supreme Court ruling says that sexual assault victims should be provided legal assistance and that all police stations should keep a list of legal aid options. While in Delhi there are efforts to ensure this—the Delhi Commission for Women operates a rape crisis cell that coordinates with police stations, even though experts say even this is ad-hoc and not entirely effective—it is rare in other parts of the country, particularly rural areas.
The central government has established about 524 fast-track courts across the country for expeditious trials in cases dealing with crimes against women and children. There are no nationwide studies yet to determine their effectiveness. Anecdotally, however, it appears that setting up fast-track courts alone is insufficient: the equal focus should be given to other key concerns such as legal assistance to help victims navigate the system. In cases involving children, the law must provide for a support person to assist the child throughout the process of investigation and trial.
There are so many questions which always disturb my mind and not make me sleep: when will the girls and women go out fearlessly? When will be the people have the fear of rigorous punishment of rape?
Is nirbhaya case punishment gave a huge impact on the society or the people are still seeing the other side that it was the rarest case of rape in the country and it was a highlighted case and it still took 7 long years for justice?
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