The lesser known legalities of one of the most heinous acts of crime. Exploring the reasons behind silence of the helpless rape victim…
Rape or ravishment is defined as an unlawful sexual intercourse with a female by a male, without her consent. Physical scars may heal up, but the mental scars remain forever. When a woman is ravished, not merely physical injury is inflicted upon her but there is also a deep sense of deathless shame. Rape is a crime not only against a woman but also against the entire society. Even the society looks down upon her in derision and contempt. Ravinder Singh Dhaka, Advocate, Delhi High Court reiterates, “No age group, social status or blood relationship can guarantee a woman safety from sexual assault. When her modesty is attacked by way of indecent assault or outrage or rape, that very moment she is dispossessed of almost everything short of physical life.”
Rape is the most hated crime as it is against the very basic human rights of a person. It is a violation of the most cherished Fundamental Right of the victim namely the ‘Right to life’ as envisaged and guaranteed under Article 21 of the Constitution. Unfortunately, laws relating to rape do not take care of the social aspect of the matter and are inept in many ways. Rape is defined under Section 375 of the Indian Penal Code, 1860 (IPC) and is punishable under Section 376 of IPC.
The alarming frequency of crime against women and widespread agitation against the Supreme Court decision in the Mathura Rape case, led the Parliament to enact ‘The Criminal Law (Amendment) Act 1983’ whereby Sections 375 and 376 were amended and several new sections namely Section 376-A, 376-B, 376-C and 376-D were introduced. The fact that sweeping changes were introduced reflects the legislative intent to curb the offence of rape with an iron hand. Section 327 of the Code of Criminal Procedure, 1973 (Cr PC) that deals with the rights of an accused to an open trial was also amended. Section 114-A was also added in the Indian Evidence Act, 1872 for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape. However, Hon’ble Justice (Retd.) J K Mehra says, “There are cases where courts should not rely completely on the girls’ story, for instance in case of live-in relationships or people working together, where the possibility of consensual intercourse cannot be ruled out. But the moment a girl fears exposure, she accuses of being raped.”
“Society and medical practitioners have to work in tandem in order to relieve the victim of the trauma brought about on her person by rape. Once, she starts seeing an opportunity to become economically independent, chances of her being rehabilitated in the society becomes far better”.
Except for gang rape and child rape cases, female’s statement should not be taken as gospel truth. Every case should be thoroughly investigated and evidence should be properly examined. However, where this shameful crime has been inflicted upon innocent children or where close relatives are involved, strictest possible punishment should be given to the accused.
A woman in the tradition bound nonpermissive Indian society would be reluctant to admit any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by the society. Considering these factors, when the crime of rape is brought to light, there needs to be an inbuilt assurance that her allegation shall be considered genuine. In the Indian setting, refusal to act on the testimony of the victim of sexual assault, in the absence of corroboration as a rule, is adding insult to injury. Hence, corroboration should not be the sine qua non for conviction in a rape case. However, M P Singh, Advocate, Delhi High Court, Ex-Public Prosecutor opines “Truly speaking, laws relating to rape have been misused. Everyone believes the version of the female even if there is no substantial evidence against the accused. At the same time even burden of proof falls on the accused. Except for gang rape and child rape cases, female’s statement should not be taken as gospel truth. Every case should be thoroughly investigated and evidence should be properly examined. However, where this shameful crime has been inflicted upon innocent children or where close relatives are involved, strictest possible punishment should be given to the accused.” Hon’ble Justice (Retd.) Mehra adds, “It’s not just a heinous crime but a social problem therefore the courts have to be very careful before giving their final verdict.” Moreover, the family of a rape victim discourages her from filing the complaint
Dr. Girija Vyas, Chairperson of the National Commission for Women (NCW) while addressing a Press Conference in New Delhi on July 4, 2009, felt sorry at the alarming rate of increase in the number of rape cases. NCW has framed a rehabilitation scheme which emphasises that all formalities like recording the statement under Section 164 of Cr PC, conducting medical tests and filing of charge sheet should be done under strict surveillance. She also suggested that rape cases should be tried by ‘Fast track courts’. She highlighted the ‘Sexual Assault Bill’, which has been drafted to take care of the inadequacies in the law relating to rape and sexual assault and asserted that stringent punishment should be awarded in cases of sexual misconduct by men in uniform and in positions of authority. Dr. Vyas said that to rehabilitate a rape victim, it is important to make her mentally, physically and financially independent.
The basic and most crucial help provided by us to a victim is psychological support in the form of immediate trauma counseling and intervention. We also help them to come out in the open and comfortably share the details with the police and the courts.We give them counseling about HIV/AIDS dangers and brief them about the need to go in for proper medical checkup to avoid harsh consequences.
Apart from psychological help, the second help that a victim needs is rehabilitation. Every victim requires us to take a different course depending upon the background and mind frame of the victim. For example, victims who are financially weak and unstable need financial help while those emotionally cut off from their family seek emotional stability. Our counseling is directed towards helping them curb their suicidal tendencies and come out of this trauma so that they can get on with their life.
We also have lawyers working with the organisation, who help us testify the victims and report the matter to the police. Recently, there was a case of a mentally challenged girl wherein we helped the police in preparing the narrative, which will help in further understanding the exact turn of events and in deciding the way forward.
because of social repercussions and humiliation. Consequently, the victim decides to remain tight-lipped about the crime. While the rape victim is put under pressure for the sake of family honour, she gets no chance of justice, leaving her to accept rape as an unfortunate act of fate. Rape damages the physical, mental and social well-being of the victim. It also raises the threat of contracting AIDS, venereal diseases and other such infections from the attacker.
Indian Penal Code, 1860 provides stringent punishment for rape convicts and the Indian Evidence Act, 1872, provides victim friendly rules of procedure to save her from mental harassment and humiliation through the embarrassing questioning process in the court rooms but these provisions do not protect the rape victim from the social disapproval and non-acceptance by the society. Hon’ble Justice (Retd.) Mehra shares his views on rehabilitation of a rape victim, “Society and medical practitioners (psychiatrists and psychologists) have to work in tandem in order to relieve the victim of the trauma brought about on her person by rape. Once, she starts seeing an opportunity to become economically independent, chances of her being rehabilitated in the society become far better”.
At times, the rapist offers to marry the victim and this raises multitude of questions in the mind of the victim. For instance, should she marry the person who has committed the worst violence on her person, would she ever be able to live with the person for the rest of her life, would her married life with the accused be happy, satisfied and content, would she be able to forgive him and even if she marries him due to her being pregnant or under family pressure, what would happen if the court convicts him. Most important of all is the motive of the rapist to marry the victim? Is it genuine repentance or a mere pretext to escape from punishment?
The offer of marriage flowing either from the rapist or rape victim or from her family members raises a significant issue as to whether it is permissible in law for a perpetrator of a rape to marry the victim and thereby allow the prosecution to drop all charges against him. Such instances draw attention to the fact that there is no change in the mind-set of the society towards the victims of sexual violence; rather such offers being approved or moved by the family members of the rape victim offers protection and impunity to the perpetrators.
No age group, social status or blood relationship can guarantee a woman safety from sexual assault. When her modesty is attacked by way of indecent assault, outrage or rape, that very moment she is dispossessed of almost everything short of physical life.
M. Sc. Criminology Forensic science is primarily an investigation science. Evidence derived there from can be described as best evidence when it comes to booking of the accused and finally to convict him or her. However, apathy of criminal justice system towards forensic science has forced it to take the back seat. There is some valid criticism that forensic techniques like polygraph and NARCO analysis are not admissible and it is the duty of legislature to modify the law but that can only be perceived when there is judicial appreciation of such techniques and forensic procedures are allowed to take front seat in terms of investigating techniques which has now become the need of the hour.
It is time to break the taboo and change the mindset of the criminal justice system, which demands greater precision in terms of justice being delivered by using scientific and technological methods. This problem arises because of loopholes inherent in the system and the solution lies in effectively utilising the tools of forensic science in order to complete the chain of events.
At present, forensic evidences are considered as circumstantial evidences while they should be treated as direct evidence as forensic science depends upon facts and procedures, which are certain. If the forensic science mechanism is given due honour and preference, many obstacles in criminal justice system can be removed. This would eventually make the entire justice system effective and efficient.
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