by Parul Sharma
- Sweden -
“The truth, however, is that the male is the enjoyer and female a thing to be enjoyed…” - Manu Smiriti
Social and psychological discrimination appeared in an Indian courtroom on April 3rd, 2005, when minutes before sentencing was due, a convicted rapist offered his victim a marriage proposal. The man, who said he was offering to marry the woman because the stigma of rape in India meant no one else would, was convicted of raping and seriously injuring a 22-year-old nurse in September 2003 at the hospital where they both worked. The survivor was asked in court whether she would accept the proposal from her attacker, who had hoped it might lower his sentence. The judge postponed sentencing until the next day, when the rape victim told the court she had rejected his petition.
So many questions come to any sane person’s mind, most importantly: did the court, as a “law-making” institution, even consider the dangers such a precedent would pose to women?
What does “utmost sensitivity” mean to the law?
A recent rape case indicates just how much law enforcement has collapsed in India. A woman who was allegedly raped by both a head constable and constable on April 10th, 2008 at the CIA (Central Intelligence Authority) police station in Rohtak, northern India, committed suicide at the regional police headquarters on the 9th of June. Identified as 25 year old Sarita, the deceased, along with her two children, reached the office of the director-general of police after consuming poison and handed over the suicide note to him. Sarita said she was committing suicide because no action had been taken against the accused and her family was being threatened with dire consequences. The ADGP (Addition Director General of Police) now says that an inquiry has been made into the case and the accused cops suspended pending punishment if found guilty.
A woman is raped every hour in India but victims are often reluctant to report the attack. In court, they have to prove that the rapist sexually penetrated them in order to get a conviction. This can be damaging, especially when defense counsel uses harsh and callous rhetoric to further victimize the survivor. Eminent judges and landmark cases refer to rape not merely as a physical assault but often destructive of the whole personality of the victim, As in State of Punjab vs Gurmit Singh and others, the court of law observed:
“Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.”
Unfortunately, and following old patterns, the court has not defined what should be understood by “great responsibility” or “sensitivity.”
The courts must recognize that the legal system can effectively deliver the benefits guaranteed by the law, especially when the beneficiaries are the weaker sections of society. That means considering the aftermath experienced by girls who have been victims of horrible crimes. For example, while dealing with the rape of an eight year old girl in Madan Gopal Kakkad vs Naval Dubey, the Supreme Court acknowledged the severity of the crime of child rape and saw fit to use the "sword of justice" to punish the criminal under Article 376 IPC in a case where there was only partial penetration of the victim. The Court opined:
“Though all sexual assaults on female children are not reported and do not come to light there is an alarming increase of sexual offences on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore such offenders who are a menace to civilized society should be mercilessly punished in the severest terms.”
In Majlis Manch vs. State of Maharashtra & Ors., a 9 year old deaf and mute girl was raped in an observation home where she was institutionalized. Her medical examination indicated, “Skin injury mark. Bite mark on right cheek and multiple abrasion marks over skin, buttocks and both legs.” The report mentioned the possibility of violent sexual assault; the bite marks were those of the adult sexual assailant. The girl was in critical condition, requiring medical aid and good nutrition, so through an interim order, the court directed the removal of the victim to the Bal Asha Trust and directed the state government to deposit Rs. 50,000 into the trust.
In both cases, no mental health concerns were raised by the court even though two young girls were brutally molested. One need not analyze the judgments extensively to conclude that an injustice has been committed. Common sense justice tells us that a victim/survivor needs much more to bounce back. Mental health must become a priority if women are to heal from their attacks and achieve other individual rights.
What is critical to note are the findings from a survey conducted by Sakshi, an NGO working extensively for women’s rights: out of 109 judges, 50% felt child sexual abuse is not common, and that this “uncommon offence existed only amongst uneducated, depressed, and over-sexed people or people with a prostrate gland problem.” These judges felt that these abuses were mostly carried out by servants and least commonly within families. These findings clearly show just how far judges may be from the reality that sexual assault and abuse are undeniably common, not to mention their odd and misguided social perspectives on crime and criminals.
Culture and attitudes
Violence against women at home is the most pervasive form of human rights abuse; domestic violence was declared a human rights issue for the first time at the United Nations Conference in 1994. Psychologists say domestic violence, whether sexual or not, wrecks havoc on the personality of a woman. The constant threat of violence creates a feeling of helplessness, which destroys a woman's sense of self. The abuser’s intermittent use of rewards creates yet more confusion in a woman's mind.
In Harvinder Kaur v. Harmander Singh, the Delhi High Court stated,
“Introduction of Constitutional Law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Art. 21 nor Art. 14 have any place. In a sensitive sphere which is at once intimate and delicate the introduction of the cold principles of Constitutional Law will have the effect of weakening the marriage bond.”
Seemingly, the privacy referred to and preferred by the court of law, has created a silent victim, where constitutional principles stand outside the four walls of the victim’s home, not even bothering to look inside.
‘One slap a day for a woman’ is almost a matter of culture, so where and how do we start sensitizing people to the fact that violence against women in all forms (mental, physical and emotional) is a crime?
The International Centre for Research on Women (ICRW) suggests that 80 percent of men from Punjab think violence is justified if his wife is "disrespectful" and 60 percent if his wife "does not follow instructions." The National Human Rights Commission (NHRC) has emphasized the need for more police offices that deal specifically with crimes against women, but what is being done about cultural beliefs? These violations hint at the real culture of gender equality in India. Does the law deal with this?
What the law and law-making authorities forget to address most of the time is the “reason” for certain violence, and why an offender becomes an offender. Hopefully such consideration will amount to viable future legislation and more powerful measures. Discussions and efforts by Mahila Lok Adalats (Women’s Fast Track Courts), Family Courts, Crisis Centers and Community Policing Initiatives, though somewhat moving, have done little to shift the country’s cultural beliefs; they are very much at a stand-still.
A value-based education system is the key to uplifting women, says the NHRC. Education will not only bring about a discernible change in women’s attitudes, especially those in the rural areas, but can also equip them with a powerful tool: their voices.
However, if only the survivors of domestic violence are included and offender sensitization ignored, we may find that we’ve created an even more dangerous situation for victims of sexual/domestic violence and women in general.
About the Author
Parul Sharma is a human rights lawyer and activist based in Stockholm, Sweden. Parul has written several articles on the rights of children and women and victims of crime. Parul is the author of the book Right to Life; the pluralism of human existence, released by India Research Press in April 2007. For the last few years, Parul has been working on issues related to corporate social responsibility with Swedish companies investing in emerging markets.
Visit her website A Seachange to learn about her initiative to inspire change "based on voluntarism and the power of each individual to make a difference."