Despite sustained campaigns and legal changes, convictions have declined steadily
From the near-illegible notes scrawled by investigators at the Prasad Nagar police station, we know this: ever since 2005, the young woman who walked in through their doors last month had been stalked by her brother-in-law, given flowers and chocolate and beatings.
There was the time, a bottle of rat-poison in his hand, he threatened to kill himself if she did not declare her love; there was the time he showed up with an affidavit on Rs. 50 stamp paper, promising to marry her.
Then, there were the times he raped her.
The files do not record what led the woman to summon up the extraordinary courage it takes to file a criminal complaint for rape, but this we can be certain of: she is less likely than ever before to receive justice from India's criminal justice system.
Shameful figures
In 1973, when the National Crime Records Bureau first published nationwide statistics on rape, 44.28% of perpetrators — almost half — were being convicted by trial courts. In spite of years of hard-fought struggles by women's rights groups, and landmark Supreme Court judgments, the conviction rate has fallen to 26.5% — just about a quarter. The decade-on-decade conviction rate has been in free fall: to 36.83% in 1983, 30.30% in 1993 and 26.12% in 2003.
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Maharashtra reported a 13.9% conviction rate in 2010, while Andhra Pradesh and West Bengal both recorded 13.7%. Karnataka stood at 15.4%. Jammu and Kashmir had the lowest conviction rate nationwide: a disgraceful 2.6%.
India's rape crisis in 2010 (PDF)
Lawyer Rebecca John, who has worked on the frontlines of sexual assault prosecutions, holds declining investigation responsible. “I can tell you from personal experience,” she said, “that nine out of ten cases fall apart because of shoddy investigation.” “There often isn't a single fingerprint to link the perpetrator to the crime scene, let alone anything else.”
In 2009, Delhi began issuing SAFE — short for sexual assault forensic evidence — kits to all major hospitals, in the hope of improving evidence collection. “The new systems,” says Pushpa Singh, head of obstetrics and gynaecology at Ram Manohar Lohia Hospital, which has been using SAFE kits for the last year and a half, “make evidence-gathering far more accurate and useful.”
The fact is, though, that SAFE hasn't boosted conviction rates — often, an official familiar with the procedures said, because “protocol isn't followed.” “The police accompanying the victims aren't sensitised on how to deal with them; clothes and personal articles aren't stored properly; the temperature at which vaginal swabs are kept is sometimes inaccurate. The evidence is often useless.”
Legal measures haven't helped much either. In case after case, the Supreme Court has set landmark standards for rape trials — holding, among other things, that the testimony of a victim did not need independent corroboration, and insisting that women officers alone deal with victims. In trial courts, though, perpetrators are still walking free.
In not one of five 2012 cases surveyed by The Hindu had forensic tools been used to link the alleged perpetrator to the crime scene; in one, involving a 14-year-old Bihar resident kidnapped by a friend, there was no paperwork to suggest that the alleged perpetrators had even been tested for a DNA match.
“Frankly,” says Pinky Anand, an eminent New Delhi-based lawyer who has worked on several key women's rights cases, “I think we need to focus less on the law, and more on the institutions which make the law work. That's where the real problem is.”
Falling conviction rates driven by ill-trained, understaffed police — and toxic social attitudes
In 1953, the authors of India's first-ever crime survey presented a grim picture of the state of the new country's police forces.
“There has been,” authors of Crime in India reported, “no improvement in the methods of investigation or in the application of science to this work. No facilities exist in any of the rural police stations and even in most of the urban police stations for scientific investigation.”
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From the National Crime Records Bureau's statistical databases, we know this: there are more and more women approaching police with complaints about sexual assault, but ever-fewer victims getting justice.
Little justice for rape victims (PDF)
In 1973, the NCRB first published data on rape: 2,919 rape cases were registered at police stations across India that year. By 2010 the figure grew to 20,262. The numbers of prosecutions ending in conviction, though, have steadily declined.
India's rape crisis in 2010 (PDF)
The reason is simple: in the six decades since Crime in India first appeared, the capacities of police to investigative crimes have incrementally diminished —and the social attitudes, that deem rape a crime not worthy of devoting more resources to, haven't changed.
POOR INVESTIGATION MEANS NO JUSTICE
Evidence that investigative incompetence is leading to diminishing conviction rates across the board isn't hard to come by: convictions for murder, for example, also showed a steady decline from 44.28% in 1973 to 36.73% in 2010.
Lawyers say the reason for the relatively high conviction rates for crimes like murder or housebreaking is that witnesses can be found — or, sometimes, invented by investigators. “The whole investigation system now revolves around a witness,” says New Delhi-based lawyer Rebecca John. “In crimes like rape, there usually isn't one.”
For over five decades now, the Supreme Court has held that the testimony of rape victims doesn't have to be corroborated, for example by forensic evidence, for a conviction to be won. That does not, however, appear to have pushed up the victim's chances of getting justice.
“Let's put it this way,” says a senior New Delhi-based police officer, “it doesn't take a lot for a perpetrator to create reasonable doubt — say, an unethical lawyer and a couple of friends willing to lie about his whereabouts.”
Hard-nosed investigation would minimise this kind of fraud — but there just aren't enough resources. India needs 250 police personnel per 100,000 citizens, twice the 133 per 100,000 available in 2010. Figures released by the Ministry of Home Affairs suggest upwards of 500,000 personnel have been recruited in recent months, but the infrastructure to train them in investigation doesn't exist.
The authors of the 1953 report had, in similar circumstances, warned that “large-scale recruitment in all the ranks of the police has diluted quality to a great extent, and consequently, the standard of work has fallen.”
“I think you have to accept,” says the former Andhra Pradesh Director-General of Police HG Dora, one of India's most respected policing experts, “that the police is stretched to breaking point.”
Figures show victims of sexual crimes understand this ugly fact. From 1973 to 1983, rape complaints doubled — and then slowly plateaued out, growing at levels close to the increase of the population. Even in western countries where the social stigma associated with filing a complaint is relatively low, many victims choose suffering in silence over suffering in a court. In 1991, a United States survey placed the reporting rate for rape at 55%; a similar Canadian investigation in 1985 placed the figure at 38%.
In 2000, a national survey in the United Kingdom concluded that 4.9% of all women had experienced at least one rape or sexual assault. In Ireland, Sweden and Germany, separate studies suggested that far higher numbers of women had been attacked, ranging from 25% to 34%.
No similar nationwide survey data is available in India, though a 2007 government study found that 53% of children polled reported having experienced “one or more forms of sexual abuse.”
The NCRB figures also show one important reason why victims have an incentive to remain silent: the rapists are mainly friends, even kin. Even though the media overwhelmingly reports on dramatic cases involving attacks by strangers, all but four States reported that nine out of 10 alleged perpetrators or more were known to the victim. In Delhi, that figure was 96.6%.
Protracted ‘acquaintance rape' trials allow for pressure to be brought to bear on victims or material witnesses to withdraw their testimony. In 2010, the numbers of alleged perpetrators either in custody or out on bail awaiting trial had grown to a staggering 89,707, up from 4,991 in 1973 — numbers which point to endless courtroom delays.
The north-east exception
Fixing policing and fast-tracking trials, though, might not alone be enough to influence outcomes. The NCRB data shows that the status of women in society may influence outcomes just as much as policing. The highest conviction rates were recorded by a cluster of States in the north-east, where data on literacy, nutrition and gender ratios all suggest women have a relatively high social status.
Nagaland convicted 73.7% of alleged perpetrators, Arunachal Pradesh and Sikkim both 66.7% and Meghalaya 44.4%. Mizoram, which convicted a staggering 96.6 percent of alleged perpetrators, also had the highest level of rape reported to police — 9.1 per 100,000 residents. This suggests that community pressure on the criminal justice system forces it to take rape seriously.
Some believe that better laws could help address these problems — but the evidence isn't persuasive. In a 1992 critique of Canadian rape-law reforms, criminologists Julian Roberts and Robert Gebotys found they had simply “attract[ed] more victims into the system, rather than changing the way that the system functions.”
Susan Estrich, writing in the Yale Law Review in 1986, noted that “studies within particular jurisdictions suggest limited, if any, changes in the processing of rape cases in the aftermath of major law enactments.”
India's problems aren't unique: in the United Kingdom, the government has been working to reverse an appalling conviction rate of 5.7 per cent, measured against complaints, and 33 per cent, when measured, as in India, against cases brought to trial.
The fact is, though, that much of the world has the tools, and the intent, needed to address the problem. In India, there is little so far but debate.
DIGNITY IS HER BIRTH RIGHT
The state should not forget the human rights perspective while dealing with a victim of sexual violence. It should not doubly, trebly victimise her.
Women do not walk in a state of perpetual consent. But women do seem to labour under a delusion that it is safe for them to walk in public spaces, to travel in buses and trains. It obviously is not. They can be raped. It is difficult to understand rape. Rape is not about chastity or virginity. Long before these concepts were constructed, long before the institution of marriage was founded, a man raped a woman whenever he broke her sexual autonomy without her saying “yes.” It is a violation of her right to equality and her right to live with dignity which “We” promised ourselves when we gave to ourselves the Constitution. Surely women are included in the “We” of the Preamble, aren't they?
Rape is the destruction of dignity through invasion of another person's body without her consent. I use the word “her”, though the victim of this violence can be a child, a woman or a man. The anatomy of rape is common to all. But I will continue to use the pronoun “her”, since the majority of victims of sexual violence are female. Rape is a deliberate negation of the right over one's body.
This right is born with us. It does not require a development of maturity or the consciousness of one's body to acquire the right. So a girl child who is raped when she is 11 months old does not suffer less, nor is the crime less dark and bloody because the child does not know that she has the right not to be invaded. The consent that is required to make the sexual act not a rape must be understood as an active assent to the act. The consent cannot be presumed merely because a woman does not say “no”. She might not have said “no” because she was paralysed by fear, manacled by coercion or pounded by force. She might not have said no, because she was mentally damaged, incapable of making a decision in this regard; she might have been an infant, or disabled from moving because of physical incapacity. Yet it is rape. Only it is blacker if there is such a colour. It is the invasion of a woman who cannot say no.
Act of subjugation
It strips the victim of her dignity, it is intended to. It is an exertion of power, an act of subjugation, a statement that divests the victim of her right of control over herself and renders her an object. It is meant to objectify her. The dilution of the horror, by using words like “he lost control” is unjustified and is an insult to a woman. The violator does not lose control, but exerts control through the act of unspeakable violence.
In the Prosecutor v. Jean Paul Akayesu, the International Tribunal held that rape is a form of aggression, the central elements of which cannot be captured in a mechanical description of objects and body parts. It noted “the cultural sensitivities involved in public discussion of intimate matters and recalled the painful reluctance and inability of witnesses to disclose graphic anatomical details of the sexual violence they endured.” It was intended to reconstitute the law's perception of women's experience of sexual violence.
In a sensitisation programme for judicial officers, an exercise was given which would give a clue to the rape complainant's feelings in court. All judicial officers were asked to close their eyes and imagine the experience of their first union with their loved one. Then they were asked to narrate it to the colleague sitting on their right. They were horrified at this intrusion of their privacy. Then the trainers asked them: “If you cannot narrate a pleasant sexual experience to a friend without inhibition, how do you expect a frightened woman in a strange court hall to narrate fluently, in the presence of a battery of hostile lawyers, her devastating experience of sexual violence?” The officers had no answer.
But what is the reality? She is broken by having to repeat the incidence of rape again and again. “Madam, what was he wearing at the time of the occurrence? Did his tee shirt have a collar or no?” Oh yes, she can surely recall in vivid freeze-frames of “the occurrence.” And who will save her if she falters just once in the witness box? “See your Honour, the accused was wearing a blue striped chaddy, but she says red ... totally unreliable, Your Honour.” The Supreme Court has given strict guidelines on how her evidence should be weighed, and how her complaint should be assessed.
But a poor child who does not know an Ambassador from a Fiat was disbelieved by the trial court, until the Supreme Court came down with all its majesty to the rescue of the child and noted that the prosecutrix was a village girl studying in class 10 and her ignorance of the car brand, was irrelevant (State of Punjab v Gurmit Singh 1996 (2) SCC 384.)
'Distinct concepts'
In the Amnesty International publication, “Rape and sexual violence — human rights law and standards in international courts,” we read how the human rights perspective must never be forgotten while dealing with sexual violence.
Sexual autonomy cannot be understood outside the umbrella of human rights. Its violation must be criminalised. The report says, “Unfortunately, however, sexual autonomy is frequently conflated with narrow views of ‘consent' under domestic criminal law which do not capture the reality of how acts of rape and sexual violence are committed ... Sexual autonomy and consent are two distinct concepts. The concept of ‘consent' as used in domestic criminal law imports a notion of individual choice, typically without a consideration of the reality of abuse of power (whether evidenced through physical force, or other forms of coercion) and other factual conditions that may prevail before, during and perhaps after the sexual acts in question. A consideration of whether an individual was able to exercise sexual autonomy, by contrast, takes into account the overall dynamic and environment surrounding those sexual acts and how these had an impact on the victim's ability to make a genuine choice.”
A woman who is raped goes through a variety of feelings like denial, self-hate, grief, degradation, suicidal impulse and more. She falters in her narration, oh yes, she does, but not because she is a liar, but because the act of rape not only inflicts physical harm but also incalculable emotional and psychological harm. Chemical changes take place in her brain because of the trauma. She may go into a fantasy that someone will rescue her from this nightmare. Post-rape, she lives in a smoke world of truth and untruth, denial and depression, nothing is the same any more. She is screaming on the inside “please, please put the clock back.” This is just a short, incomplete statement of what is happening on the inside.
What is happening on the outside? The whole family is devastated, it even looks at her as if she somehow brought it on herself. “Why did you go there?,” “I told you not to wear that” and so on. So the woman wonders if the first enemy is the family. It is not in every case that the woman actually lodges a complaint, because she and her family know what will follow the complaint is worse. It is hell. It is not necessary to give the details of the experience on the way to the police station and inside the precincts thereof. The world looks at her as if she carries a stain on her all the time. She may never be allowed to forget the occurrence. So will a woman lie that she was raped?
The Amnesty International report reminds us that women and girls are not “likely to make false accusations of rape and sexual violence. This is a particularly irrational stereotype as women and girl complainants usually have very little to gain and everything to lose by making allegations of rape, there is rarely an incentive for them to lie; many complainants pursue their search for truth and justice at enormous cost to themselves, in terms of stigma and rejection by their families and communities.”
In this harsh reality, society and especially the state and courts must remember that they shall not doubly and trebly victimise her, nor raise a cacophony of distrust. It will only silence the voices against this horror.
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