Rape Incidence In India- Reason And Suggestive Measures To Cure
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This Blog is written by Nipa Dharod from SVKM’s Pravin Gandhi College of Law, Mumbai. Edited by Uroosa Naireen.
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INTRODUCTION
BREAKING NEWS: Police shot dead four men suspected of raping a 27- year-old in Hyderabad | Unnao rape victim set ablaze by five men, including the rapist; Uttar Pradesh lawmaker Kuldeep Sengar convicted for Unnao rape case, given life imprisonment | Catholic Bishop Franco Mulakkal accused of raping a nun repeatedly for two years | 12-year-old girl raped, sedated and assaulted by 18 men in Chennai for seven months | 8-year-old girl of Kathua district, Jammu & Kashmir drugged and sexually assaulted for a week, later killed | 23-year-old beaten and gang-raped in a moving bus in New Delhi, the victim later died of injuries
Such breaking news’, which awaits to knock our doors almost every day has shaken the conscience of the common man. Whenever such news gets to the headlines, the entire country mourns in sorrow with deep shock and grief for the daughters of India. Rape is an extremely traumatic phenomenon that leaves the victim in a miserable condition with not only dreadful physical and mental effects but also multifarious challenges from the family and society at large. The stereotypical patriarchal ideologies, gender inequality, caste system, and the corresponding discrimination have contributed incredibly to the rape culture. Rape not only injures the dignity of the victim but also victimizes the entire society. It is a death knell to humanity.
In 2018, 33,356 rape cases were reported throughout the country. Notwithstanding such a huge number of rape cases, the Government claims that 99% of cases of sexual violence are not reported. Also, it is disheartening to know that out of the total rape victims, 27.8% of victims were minors below the age of 18 years. The perpetrators of such sexual offences are set free after their term of imprisonment, however, such acts tend to shatter and devastate the entire life of victims. There is a dire need to devise measures to preclude the perpetrators from committing such heinous offences.
In 2018, India had reported 33,356 rape cases. Nevertheless, the rape incidence of India is lower than many other developed countries such as United States, Russia, Germany, France, etc. i.e. the no. of rape cases reported per 1,00,000 women in India is comparatively lesser than many countries. [1] The question that arises is “If the overall percentage of rape cases in India is lower than many other countries, then why is India termed as the rape capital of the world?” Is it the lack of awareness or ignorance of the citizens, or India’s low conviction rate, or sluggish procedures of the courts and the police, or the conventional attitude of men?
India is often regarded to be one of the most dangerous and unsafe places for women in the world. Statistics reveal that every 15 minutes, a girl is raped in India. Thus, by the time you complete reading this article, another daughter of India has been raped, and the next one has been captivated for the same excruciating process.
NEED TO INCREASE THE LOW CONVICTION RATE
To a greater extent, rapes are increasing due to the leniency of the courts along with the low conviction rates. Sections 375 and 376 of the Indian Penal Code, 1860 provide well-defined boundaries as to what is to be construed as rape and postulate the corresponding punishments. Various women-centric legislation such as the Protection of Children from Sexual Offences Act, 2012 are also in force to uphold the dignity and safety of women. The Centre has also established ‘Fast track courts’ in various states to provide speedy remedy to rape victims, thus escaping the complex, lengthy procedures of the trial courts where justice is a far-fetched dream. Notwithstanding such measures adopted, incidences of rapes are constantly increasing in India.
The rape incidence in India is increasing despite the stringent anti-rape legislation, primarily due to the low conviction rate in India, which is as poor as 27.2%. In accordance with the National Crime Records Bureau (NCRB) statistics, 1,56,327 rape cases were pending before the Courts as of 2018. In 2018, the Courts gave final verdicts in 17,313 cases resulting in 4,708 convictions; 11,133 acquittals and 1,472 discharges. The conviction rate in India has been on a constant decline owing to myriad factors such as:
Victims Turning Hostile
In Baban Devji Rathod v. State of Maharashtra [2], a 10-year-old girl was raped by her father and he was convicted. Later, he filed an appeal on the conviction order where the victim was influenced to turn hostile by her parents. The Court said “She could bear the physical pain but would be living with an injury to her soul. The biggest trauma would be that she was not even supported by her mother, and was expected to speak a lie before the Court.”
In 94% of the rape cases, the offender has some relation with the victim, and consequently, he is in a position to influence the victim. The major drawback is, that the accused is in a position to turn the victim hostile either by threatening the victim to dire consequences or by attempting to settle the matter under the table. The worst case is where the victim herself turns hostile, as that weakens the hands of the judges as well as the prosecutors from upholding and rendering justice, consequently resulting in the acquittal of the accused.
With regard to this, firstly, the Judges while dealing with bail applications or anticipatory bails, should provide an opportunity to the victim to put forward her stand on the grant of bail. Judges need to consider the threat posed and the safety of the victim, while setting free the accused. As for instance, in the Unnao rape case, while the accused were out on bail, they tried attacking the family members of the victim; further, they abducted the girl, stabbed her and set her ablaze, while she was on her way to the Court. Such dangers from the accused tend to frighten the victims and they hesitate from seeking any assistance from the law enforcement personnel. Thus, in heinous offences like rapes and gang-rapes, the judges should evaluate the evidence, and prime-facie if a strong case is made out, they should be reluctant towards granting bail to offenders, especially when there is an imminent threat to the victim or the accused is in a position to influence the victim.
Secondly, it is pivotal to provide police protection to the victim and her family members, since, in most of the cases, the victim turns hostile after facing ‘threats’ from the offenders. The Courts need to confine the accused to strict boundaries while providing police protection to the victims. Every state should form a committee which is entrusted with the responsibility of keeping track of the rape cases while keeping under surveillance the parties involved to ensure that the victims are not victimised further. Thirdly, the committee should also inquire into the reasons for settlement, if any, to ensure that justice is done to the victims, and the offenders do not merely escape the law through their power and influence. Lastly, in prosecutions for rape, in-camera proceedings need to be strictly espoused for the protection of the victims and the witnesses.
Delay In Registering F.I.R And Faulty Investigations
Although fast-track courts ensure speedy remedy for rape victims, the procedure until reaching there is highly flawed and needs to be re-evaluated. An F.I.R. is the most essential procedural requirement as it sets the entire criminal justice system into motion. Firstly, the police officers refuse from registering an F.I.R. on jurisdictional excuses, or they cause unnecessary delays in registering the same due to the inadequate police force. Many times, the F.I.R. is not registered immediately after the offence is committed, and a lapse in the filing of the F.I.R. can be detrimental to the victims as it weakens the entire case. Secondly, whenever a crime a committed, the first responders are police officers, who are often not well trained in sustaining the sanctity of the crime scenes. Reports suggest that 93.6% of the cops do not receive up-to-date training to deal with public matters, which leads to the cross-contamination of evidence and a broken chain of custody, which renders the evidence inadmissible. Thirdly, delays in filing F.I.R. cause unnecessary delay in the medical examination of the victim which needs to be taken as soon as possible to get the best physical evidence i.e. the bodily fluids, injuries and marks on the body of the victim, residues under fingernails, etc. [3] Lastly, another major drawback is the lack of lady police officers in India, since many rape victims hesitate from reporting the cases to male officers. Today, women account for only 7% of the entire police force in India, which is even lesser for some states. The victims, after the mishap, are highly traumatized and disturbed to face an unsympathetic interrogation from the male police officers, and thus refrain from facing them in the absence of lady police officers.
On account of all this, there is a dire need to modify the criminal system to ensure that victims do not suffer due to the negligence of the police, the investigating officers or the forensic experts. Concerning the same, firstly, confidence reports of police officers should be prepared annually to analyse the conviction rate in their jurisdiction. In areas with low conviction rates, various aspects need to be scrutinized which contribute to the high acquittal rates. Secondly, new police officers need to be appointed, who are specially trained in dealing with sexual offences to compensate the understaffed and not well-equipped police personnel. Every State should establish such teams of skilled police officers in every district, who are specially enjoined with the responsibility of dealing with sexual offences. Also, every such team shall include 40% lady officers and the jurisdictional limitations of such officers should be relaxed to enable the officers to deal with offences beyond their jurisdiction as well. Thus, the sexual offences would be dealt with by such well-equipped officers from the initial stage so that the sanctity of the evidence is sustained and all the aforementioned predicaments arising from police personnel would be resolved. Consequently, the conviction rate would also increase, since the procedures are being complied with and the chain of custody is maintained.
LACK OF SERIOUSNESS IN PROSECUTORS
To a considerable extent, prosecutors play an imperative role in successful convictions. However, lately, it has been observed that prosecutors have lost seriousness towards the profession, and have developed a lethargic attitude, owing to their fixed salaries. Such an indolent attitude can be detrimental to the victim, especially when the accused employs experienced lawyers capable of twisting the case, where a reasonable doubt in the eyes of law can also lead to the acquittal of the suspect.
Thus, annual reports of prosecutors need to be prepared to analyse the conviction rates of their cases. The conviction rates of individual prosecutors would demonstrate their expertise in the fields while exhibiting the seriousness they possess in discharging their duty. Prosecutors with lower conviction rates should be questioned about their conduct and possibly replaced by appointing new prosecutors. Further, the State can also offer incentives such as providing higher salary to prosecutors having a conviction rate of more than 60%.
It is high time that the law enforcement personnel, the police force and the forensic experts ensure that the victims do not suffer due to procedural lapses caused by their negligence. The entire criminal justice system needs to function in tandem to increase the conviction rate and uphold justice. Even a minute error in the investigation can turn the tables and the case goes in favour of the criminal, which leads to his acquittal. Further, high acquittal rates of suspects encourage offenders to commit more crimes and consequently they develop criminal tendencies. On the contrary, severe punishments along with higher conviction rates deter the offenders from committing such crimes and consequently, the rapes committed will reduce owing to the fear of imprisonment or death.
ENDORSING CAPITAL PUNISHMENTS
The Court in State v. Deepak Dogra [4] held that “Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency”.
The Indian criminal system endorses the ‘Reformative theory of punishment’, which is grounded on the principle of “Abhor the crime, not the criminal”. Thus, the Indian lawmakers are inclined towards the notion of reforming the anti-social elements into moral and virtuous citizens, rather than inflicting harsh punishments on offenders. However, in countries like India where the crime rate has been constantly increasing, the reformative theory has proved to be inefficient, as the criminals commit graver offences after they are released from the jails. Lately, the Indian courts have realized the significance of moving to capital punishments and deterrent type of punishment, i.e. inflicting severe punishments including death penalties.
The sympathetic attitude of the country has failed to protect its citizens from those having criminal proclivities since offenders barely dread the law. The mandate of deterrent punishment is to sanction severe penalties on offenders to deter them from committing such crimes in future while preventing others from indulging into such activities. After the Criminal Amendment Act, 2013, the punishment for rape has been amended in Sec.376 of IPC to be rigorous imprisonment of not less than 10 years extendable up to life imprisonment. Further, Sec.376A (rape causing death or resulting in a persistent vegetative state of the victim); Sec.376AB (rape on women under twelve years of age); Sec.376DB (gang rape on women under twelve years of age) and Sec.376E (punishments for repeat offenders) provide for death punishment along with imprisonment for life. The amendment is commendable, however, death punishment should also be awarded in cases of rapes; gang rape of women and gang rape of girls below the age of sixteen years under sections 376, 376DA, 376DB of IPC respectively, where the highest punishment is life imprisonment i.e. imprisonment for the remainder of that person’s natural life. Had the Courts awarded capital punishments in prosecutions for rape from the very start, today the offenders under the fear of death, would not have the guts to commit sexual offences against women.
Further, while the punishment for rape is imprisonment of at least 10 years, the punishment for perpetrators who are juveniles is mere imprisonment of 3 years. Recently, the amendment altered the age of juveniles for heinous offences, and juveniles committing heinous offences between the age of 16-18 years would be tried as adults. If a juvenile is competent enough to develop such sexual desires at such a tender age, he is absolutely capable of understanding the consequences that may follow. The number of sexual offences committed by juveniles is on an increase, which entails an increase in the quantum of punishment awarded.
Reports suggest that 70% of the offenders of rape are those who have been earlier convicted for the same or other crimes. This clearly demonstrates that the kind of punishment awarded in India fails to deter offenders from committing such crimes again. Thus, there is a dire need to impose capital punishments on offenders of sexual offences, since an ordinary person tends to fear the most from death and fatal incidents. Punishment is mandatory to maintain discipline and law and order in the state and the severity of the punishment should be decided depending upon the gravity of the offence. Recidivism i.e. the behaviour of repetitive commission of crimes can be reduced only by adopting deterrent punishments, especially capital punishments.
Lastly, the Courts need to ensure that justice is done not only to the accused but also to the accuser. The Apex Court in Dhananjay Chatterjee Alias Dhana v. State of West Bengal [5] held that “Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of a crime and the society at large while considering the imposition of appropriate punishment.”
PROTECTION OF VICTIMS FROM RE-VICTIMIZATION
“They were so full of self-blame and shame from the original assault that they felt unable to act on their own behalf during the later sexual assault victimization.”
– Chris O’Sullivan, Senior Research Associate at Safe Horizon.
In a society like India, although crimes like rapes are largely condemned by the citizenry, and the perpetrators are highly opposed, nevertheless the victims of sexual offences are equally subjugated to oppression and they are also humiliated by their families and the society. They are usually stigmatized as provokers of sexual offences and often made a prey of slut-shaming. Consequently, many victims are reluctant to raise a voice and they decide to remain silent owing to various factors such as rejection from family, threats from the perpetrators, mistreatment by police, illiteracy, social exclusion, backwardness, etc.
Reports suggest that women subjected to violence at early ages adapt to such actions and prefer not to raise voices against the perpetrators, which makes them susceptible to recurrent sexual offences. A trend has been observed, that victims of sexual offences are subjected to re-victimization and often abused repeatedly. A survey report by ‘National Intimate Partner and Sexual Violence Survey’ quoted that “The percentage of women who were raped as children or adolescents and also raped as adults was more than two times higher than the percentage among women without an early rape history.” [6]
Concerning the problem of re-victimization, there is a dire need to strengthen the women by training them in martial arts and other self-defence techniques to make them capable enough to confront and counter-attack the offenders, in the absence of police. The prevailing training programs for women have proved to be inefficient. Thus, the State should constitute a ‘Women Empowerment Commission’ with the primary task of collecting the information of women who have been victims of sexual offences to protect them for re-victimization and provide compulsory training to women, who have been victimized earlier. The state should outsource such training programs to academies and training schools, which equip the women to confront the offenders and make the women competent enough to save themselves and escape the abduction itself, which is the first step of committing a rape.
The police personnel cannot always receive information regarding the commission of a crime beforehand. However, the state can strengthen the women beforehand to enable them to confront the perpetrators. Consequently, the offenders will also think twice before harassing and ill-treating women. Such self-defence training can be an effective measure against at least marital rapes. Thus, training should be provided to every woman who has been a victim of rape, thus ensuring that victims do not have to undergo the agony and torture again, which sometimes leads them to suicidal tendencies.
CONCLUSION
India’s rape culture is more of a social problem than a mere legal problem. Since time immemorial, the patriarchal ideology of India has created the great gender rift, placing men on a superior scale than their female counterparts. Women are treated as nothing more than mere property and men largely exploit them to fulfil their sexual desires. Very often girls are abused from a very primitive age, and they learn to stay subservient to men and endure the violence committed silently. Even today, women accede to the superiority of men and gradually, they adapt to the atrocities committed on them. Reports suggest that about three fourth (3/4th) of the sexual assault cases go unreported. The judicial system plays a pivotal role in upholding justice, but the criminal justice machinery also stands weak, if the victims do not intend to seek justice. It is high time that women break the unprecedented silence and fight for themselves. Just like, when India wanted freedom from the British, Indians had to revolt and raise voices against the British. Similarly, when women seek liberation from sexual offences like rape, women will have to raise voices against offenders. Until and unless women do not oppose and revolt against the perpetrators of sexual offences, it is very difficult to eradicate sexual offences.
REFERENCES
[1] https://worldpopulationreview.com/country-rankings/rape-statistics-by-country.
[2] 2019 SCC Online Bom 704.
[4] Sessions Case No. 57 of 2013, Addl. Sessions Judge, Tis Hazari District Court, Delhi.
[5] (1994) 2 SCC 220.
[6] https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf.