Delhi HC- Guidelines for recording of evidence of children in criminal courts #mustshare


Guidelines issued by Delhi High Court for  Courts to record evidence of children. These guidelines are in force across Delhi and all criminal courts are bound to follow them.

These guidelines provide remedy for all the possible problems witnesses face in criminal cases and take care of concerns we all face while assisting children in criminal proceedings.

Here are some key features of these guidelines :

*A child who has not completed 18 years of age is to be treated as ” Vulnerable
Witness”. *

*Practice of “Court House Tour” has been introduced which means that a
pre-trial tour of court room will be conducted  to familiarize a vulnerable
witnesses with the environment and the basic process of adjudication and
roles of each court official. *

*These guideline have recognised Stress causing factors of adversarial Criminal Justice System which cause stress on *
*child witness, rendering them further vulnerable witnesses,* *and impeding complete disclosure by the.

These factors include Multiple depositions and not using developmentally appropriate language; Delays and continuances; Testifying more than once; Prolonged/protracted court proceedings; Lack of communication between professionals including police,doctors, lawyers,prosecutors, investigators, psychologists, etc. ;
Fear of public exposure; Lack of understanding of complex legal procedures;
Face to face contact with the accused; Practices are insensitive to developmental needs;Inappropriate cross-examination; Lack of adequate support and victims services;
Sequestration of witnesses who may be supportive to the child;
Placement that exposes the child to intimidation, pressure, or continued abuse; Inadequate preparation for fearless and robust testifying;
Worry about not being believed especially when there is no evidence other than the testimony of the vulnerable witness;
Formality of court proceedings and surroundings including formal dress of members of the judiciary and legal personnel.

 

#India- New guidelines for handling sexual assault cases in hospitals #Vaw #womenrights


GAURAV VIVEK BHATNAGAR

A new set of guidelines have been recently issued by the Department of Health and Family Welfare for “rapid response by hospitals in case of medico legal case (MLC) examination of sexual assault victims’’. These instructions have come in the wake of the December 16 gang-rape case in which the preparedness at a city hospital was found allegedly somewhat lacking while handling the victim.

As per these new guidelines, sent by the Department to all the directors and medical superintendents of Delhi Government hospitals on January 28, when the victims of sexual assault are brought to the hospitals by the police or otherwise for MLC and treatment then as per the provisions of Section 164 A (2) of the Criminal Procedure Code it should be done “promptly and without delay’’.

“As the victims of sexual assault are traumatised and their physical condition and state of mind are unstable, handling of their case required sensitivity, empathy and compassion,’’ the order noted adding that “therefore, the examining doctor must throughout remain re-assuring, empathetic and sensitive to the victim and should also provide due privacy.’’

Further, the order has noted that in consonance with the directions of the Delhi High Court on performing MLC, “in order to provide privacy to the victim, a separate room should be identified by the director/medical superintendent and marked in all hospitals where the victims can be examined by the attending doctor’’.

Stating that “the room number should be known to the doctors in emergency duty’’, the guidelines further state that “the room should have proper furniture required for medical examination’’ and “the basic equipments, adequate stock of sexual assault forensic evidence (SAFE) kit etc., should be kept available in the room for collection of the forensic evidence.’’

The guidelines also lay down that “the hospital should also provide clothing to the victim in case the victim’s clothes are taken as evidence or action otherwise required fresh clothes to be given’’.

“The hospital should also provide toiletries to the victim after the MLC examination has been concluded,’’ the guidelines note.

For better preparedness to deal with such cases, it has been stated that the director or medical superintendent will arrange periodic training sessions to the doctors on the protocols and guidelines on the MLC examinations/reporting in case of sexual assault victims.’’

These officials are now also required to “organise sensitisation workshop for hospital staff, and medical and paramedical staff in collaboration with the Delhi Commission for Women.’’

Further, it has been stated that “in case where counselling of the victim is required, the same should be provided by the hospital’s own pool of doctors and if that is not available, then the Crisis Intervention Centre, which provides counsellor should be informed’’.

 

PRESS RELEASE- #Justiceverma recommendations in context of assaults against women with disabilities #delhigangrape


National Platform for the Rights of the Disabled

4, Ashoka Road, New Delhi 110 001

 

 

January 24, 2013

 

 

Press Statement

 

The National Platform for the Rights of the Disabled (NPRD) welcomes the report and recommendations of the Justice Verma Committee concerning sexual violence against women.

The NPRD puts on record its appreciation of the seriousness with which the Committee has considered the specific issues concerning women with disabilities and the sexual assaults they face. Representatives of the National Platform for the Rights of the Disabled (NPRD) met the Committee on three occasions, and made its submissions.

The Committee has, amongst others, made the following recommendations, in the context of assaults against women with disabilities:

Duty of the State: The Committee has affirmed the duty of the State as the guarantor of the Fundamental Rights of disabled women and has stated that the involvement of private actors in providing services to the disabled, does not absolve the State of its Constitutional duty towards them.

The Committee has also invoked the idea of parens patriae (the State has the same rights over its citizens that the parent has over his ward) to describe the role of the State.

However, experience shows that protection by the State is like a double-edged sword. When the State takes over the role of the parent, it often overrides the opinion of the ward; the State then decides what is good for the ward and what is not. This could at times go against the interests of the disabled. This issue also needs to be addressed.

 

Making the Legal System Accessible: In its submissions to the Committee, the NPRD had highlighted the difficulties encountered by disabled women at each stage of the criminal-legal process, right from filing an FIR, to testifying in court during the trial. The Committee has responded to the submissions by recommending the following:

·        When a physically or mentally disabled woman lodges a complaint of rape (Section 376 Indian Penal Code) or outraging of modesty (Section 354 IPC), such complaint shall be recorded by a woman police officer at the residence of such woman, or wherever she is comfortable. The complaint shall be recorded in the presence of a special educator or interpreter, depending on the need of the complainant. The entire process of recording of the complaint should also be videographed. (Section 154 Code of Criminal Procedure)

·        A physically or mentally disabled woman cannot be asked to go to the police station. Her complaint must be recorded at her residence or wherever she is comfortable. (Section 160 CrPC)

·        During the process of Test Identification Parade, if the person identifying the arrestee is physically or mentally disabled, then the identification process must be videographed. (Section 54A CrPC)

·        While recording the statement of a physically or mentally disabled woman in court, the Magistrate must take the assistance of a special educator or interpreter, depending on the needs of the complainant. Additionally, the recording of testimony of the woman should be videographed. (Section 164(5)(a) CrPC)

·        Additionally, the statement made in the above manner shall be treated as a statement for the purpose of cross examination during the trial and the physically or mentally disabled woman would not have to re-state the same. (Section 164(5)(b) CrPC)

·        Section 119 of the Indian Evidence Act, provides for the recording of testimony of ‘dumb witnesses’. The Committee has recommended that this derogatory phrase be replaced with ‘persons who are unable to communicate verbally’.

One of the major reasons why most cases involving rape of disabled women fail to convict the wrongdoer is because the testimony of the victim is not given due importance by the police or the court. The above recommendations, if incorporated in the law would go a long way in addressing this problem.

However, the definition of ‘special educator’ and ‘interpreter’ require further clarity when these recommendations are incorporated into the law. In our deliberations with the Committee we had stated that a special educator may not know sign language and an interpreter may know only a few signs, and therefore may not be always equipped to provide the required assistance in bridging the communication barrier between the victim and the legal system.

Medico-Legal Examination: Medical examination of the victim is of utmost relevance in cases of rape, both from the point of view of providing medical aid and from the point of gathering evidence for the trial. The Committee has recommended the setting up of Sexual Assault Crisis Centres at government and private hospitals to carry out this task. The Committee has recommended that the Counsellors present in these Centres should be professionally qualified to address the needs of disabled victims of sexual assault. In addition, the report of the counsellor regarding disability of the victim should be part of the medico-legal evidence that is submitted to the court.

Safety of Women and Abuse within Institutions: The Committee has affirmed that every citizen has a right to protection against violence and it is the duty of the State to provide safe spaces to all women, including disabled women. The Committee has recommended that such safe spaces should be accessible to the disabled in terms of architectural design, management and provision of services.  To address abuse of disabled children within institutions, the Committee has suggested that all such institutions and homes must be registered with the concerned High Court with the court acting as the guardian of such children.

The Committee has recommended that the concerned High Court should act as an oversight mechanism to all the institutions in the state and there should be weekly reports submitted to the High Court. The suggestion to professionalize the recruitment of care takers and superintendents, in terms of having mandatory qualifications etc. is a welcome suggestion and would improve the conditions of these institutions and the way they are currently managed.

Power Asymmetry and Socialization in Schools: The Committee has observed that it must be the task of educational institutions to recognise discriminatory attitudes among children on the basis of gender, disability, caste and so on and rectify the same.

Sex Education: The Committee has recognized that sex education must also be provided to disabled children and young people by professionally trained teachers and care givers, to ensure their safety and holistic development.

Aggravated Sexual Assault: The Criminal Law Amendment Bill 2012, which is at present before the Parliament provides that sexual assault against physically or mentally disabled women, is classified as an ‘aggravated sexual assault’ and has a minimum punishment of ten years imprisonment. While the Committee has endorsed most of the provisions in the Bill, it is unfortunate that this clause is absent from the Committee’s recommendations.

In the light of these recommendations made by the Committee, it is of utmost importance that the government act immediately. The NPRD demands that the recommendations made by the committee with regard to changes in laws should be passed in the Budget session of parliament. It also demands that necessary budgetary allocations for requisite infrastructure and providing personnel and their training should be made for implementing the other recommendations made by the Committee.

(Muralidharan)

Assistant Convener

National Platform for the Rights of the Disabled (NPRD)

9868768543

 

 

#India -Fast-track death sentence raises brows, Specific law on ‘whole life’ term needed #Vaw #Justice


By , TNN | Jan 20, 2013, 1

Fast-track death sentence raises brows

NEW DELHI: The death penalty awarded this week by in a rape-and-murder case after a 10-day trial before a fast-track court has raised apprehensions about a possible rash of such sentences in the prevailing climate for enhanced punishment. One of the human rights concerns is whether, in the public outrage following the Nirbhaya case, the judiciary would be under pressure to award death routinely in all rape-and-murder cases, departing from the doctrine of the rarest of rare cases.

Given the dangers involved in introducing death for rape, the Verma committee would do well to consider the alternative proposed by the apex court, however tacitly, in rape-and-murder cases over the last five years. Evolved through judicial activism, it is a life sentence that is exempt from the usual stipulation of being reviewed after 14 years.

With the 2008 verdict in the Swami Shraddhananda case, the Supreme Court began the trend of awarding life sentence subject to the condition that the convict would either stay behind bars till his natural death or not be released for hitherto unheard-of terms extending up to 35 years.

This innovation of a “whole life” or “long life” sentence is contrary to the Criminal Procedure Code (CrPC), under which the executive has the discretion to remit a sentence in the course of the incarceration. The only restriction imposed by CrPC on this executive discretion is that for a heinous offence punishable with death, the convict cannot be released before 14 years.

It is on account of this restriction introduced in 1978 in the form of section 433A CrPC that life sentence in murder cases or rape-and-murder cases has often come to mean no more than 14 years. The Supreme Court departed from this norm for the first time ever in the Shraddhanand case, which was as egregious as Nirbhaya’s. It felt that Shraddhanand deserved neither the death penalty (as his crime, in its opinion, fell short of the rarest-of-rare category) nor the life sentence (which was found to be “grossly inadequate” as it was for all practical purposes no more than 14 years).

The spate of cases that followed the Shraddhanand precedent constitute a recurring signal from the judiciary that Parliament should amend the law providing a statutory backing to the discretion assumed by judges to put the life sentence beyond the ambit of section 433A CrPC. Such a legal provision may ensure greater objectivity in determining the cases in which the life convict would enjoy the existing safeguard of section 433A and those in which he would not be released after 14 years. It would also reduce the pressure on judges to resort to the extreme option of death penalty.

The disconnect between the statute and judicial practice in this regard cannot be ignored as judges at all levels – trial court, high court and apex court – have been awarding “whole life” or “long life” sentences, without being able to trace them to any legal provision. From the viewpoint of penology (the study of punishments), it is undesirable to impose such stringent sentences without a codification of the principles involved.

 

#India- Legal rights every woman must know #Vaw #justice #womenrights #mustshare


RIGHT TO PRIVACY WHILE RECORDING STATEMENT
Under section 164 of the Criminal Procedure Code, a woman who has been raped can record her statement before the district magistrate when the case is under trial, and no one else needs to be present. Alternatively, she can record the statement with only one police officer and woman constable in a convenient place that is not crowded and does not provide any possibility of the statement being overheard by a fourth person. The police have to, by law, protect the woman’s right to privacy. It’s important for the person to feel comfortable and not be under any kind of stress while narrating the incident.

TIME DOESN’T MATTER
The police cannot refuse to register an FIR even if a considerable period of time has elapsed since the incident of rape or molestation took place. If the police tells you that they can’t lodge your FIR since you didn’t report it earlier, do not concede. “Rape is a horrifying incident for any woman, so it’s natural for her to go into shock and not want to report it immediately. She may also fear for her safety and the reputation and dignity of her family. For this reason, the Supreme Court has ruled that the police must register an FIR even if there has been a gap between the report and the occurrence of the incident,” says Tariq Abeed, advocate, Supreme Court.

POLICE CAN’T SAY NO
A rape victim can register her police complaint from any police station under the Zero FIR ruling by Supreme Court. “Sometimes, the police station under which the incident occurs refuses to register the victim’s complaint in order to keep clear of responsibility, and tries sending the victim to another police station. In such cases, she has the right to lodge an FIR at any police station in the city under the Zero FIR ruling. The senior officer will then direct the SHO of the police station concerned to lodge the FIR,” says Abeed. This is a Supreme Court ruling that not many women are aware of, so don’t let the SHO of a police station send you away saying it “doesn’t come under his area”.

NO ARRESTS AFTER SUNSET
According to a Supreme Court ruling, a woman cannot be arrested after sunset and before sunrise. There are many cases of women being harassed by the police in the wee hours, but all this can be avoided if you exercise the right of being present in the police station only during daytime. “Even if there is a woman constable accompanying the officers, the police can’t arrest a woman at night. In case the woman has committed a serious crime, the police has to get it in writing from the magistrate explaining why the arrest is necessary during the night,” says Bhaumik.

YOU CAN’T BE CALLED TO THE POLICE STATION
Women cannot be called to the police station for interrogation under Section 160 of the Criminal Procedure Code. This law provides Indian women the right of not being physically present at the police station for interrogation. “The police can interrogate a woman at her residence in the presence of a woman constable and family members or friends,” says Abeed. So the next time you’re called to the police station for queries or interrogation when you have faced any kind of harassment, quote this guideline of the Supreme Court to exercise your right and remind the cops about it.

THE DOCTOR CAN’T DECIDE
A case of rape can’t be dismissed even if the doctor says rape had not taken place. A victim of rape needs to be medically examined as per Section 164 A of the Criminal Procedure Code, and only the report can act as proof. “A woman has the right to have a copy of the medical report from the doctor. Rape is a crime, not a medical condition. It is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion and the doctor can’t decide on this,” explains Bhaumik.

PROTECT YOUR IDENTITY
Under no circumstances can the identity of a rape victim be revealed. Neither the police nor media can make known the name of the victim in public. Section 228-A of the Indian Penal Code makes the disclosure of a victim’s identity a punishable offense. Printing or publishing the name or any matter which may make known the identity of a woman against whom an offence has been committed is punishable. This is done to prevent social victimisation or ostracism of the victim of a sexual offence. Even while a judgment is in progress at the high court or a lower court, the name of the victim is not indicated, she is only described as ‘victim’ in the judgement.

EMPLOYERS MUST PROTECT
It is the duty of every employer to create a Sexual Harassment Complaints Committee within the organisation for redressal of such complaints. According to a guideline issued by the Supreme Court, it is mandatory for all firms, public and private, to set up these committees to resolve matters of sexual harassment. It is also necessary that the committee be headed by a woman and include 50 per cent women as members. Also, one of the members should be from a women’s welfare group.

Sources: Saumya Bhaumik (women’s right lawyer, Tariq Abeed (advocate, Supreme court)

 

#India- Chastity, Virginity, Marriageability, and Rape Sentencing #Vaw #Justice #mustread


The horrific gang rape incident in Delhi has led to demands for amending the law to provide for more stringent punishment for rape, including introducing the death penalty. Over the last few days, there have been various debates about the advisability of making such changes to the law. An issue that has not been highlighted in these debates is the existing state of rape sentencing. Any attempt at law reform needs to include an examination of this issue. In this piece, I provide a brief account of a few problems plaguing the current rape sentencing regime in India. This is based on my doctoral study at Yale Law School, in which I examined all rape cases decided by all High Courts and the Supreme Court over the last twenty five years.
Section 376 of the Indian Penal Code (I.P.C.) prescribes the punishment for rape. For non-aggravated forms of rape, the minimum punishment is seven years imprisonment, and the maximum is life imprisonment. The minimum punishment for aggravated rape (gang rape, rape of a girl under the age of twelve, custodial rape) is ten years imprisonment, and the maximum is life imprisonment as well. In both these circumstances, courts have the discretion to sentence below the prescribed minimum term of imprisonment, if they provide “adequate and special reasons” for so doing. The crucial question is: how do courts determine the appropriate sentence to be imposed on an offender? A basic understanding of the trial process is essential to understand the procedure involved. The Criminal Procedure Code (Cr.P.C.) divides the trial into two distinct phases – the guilt determination phase and the sentencing phase. In the guilt determination phase, the court either convicts or acquits the offender on the basis of evidence presented in this regard. If the offender is convicted, then the sentencing phase begins. In this phase of the trial, the court considers evidence and arguments on factors relevant to the determination of sentence. Ruling on the factors that a court should consider in deciding on sentence, the Supreme Court has held that the nature of the offence; the presence of aggravating and mitigating circumstances; the prior criminal record of the offender; his age, professional, social, and educational background, amongst others are relevant. Another important consideration is the theory of punishment that should be followed – deterrence, rehabilitation, retribution, etc. Since the I.P.C. does not provide guidance to courts on any of these issues, except for prescribing maximum – and in some cases, as in rape – minimum punishments, judges have the absolute discretion to determine the sentence for each individual offender. Unlike some other countries, such as the United States and England, India does not have sentencing guidelines, which provide rules and principles for judges to follow while sentencing. These guidelines generally list out factors that the court should (and should not) consider while sentencing. The absence of such guidelines in India is one of the reasons for the rampant disparity that exists in sentencing across crimes, including rape. In fact, the Supreme Court has itself repeatedly acknowledged the existence of disparity in its death penalty practice. It has observed that sentencing has become “judge-centric,” instead of being based on principles. The same critique applies equally to rape sentencing as well. However, the causes for disparity in rape sentencing, as compared to capital sentencing or sentencing in other crimes, are entirely different.
What makes rape sentencing different from sentencing for other crimes? Unlike other offences, the crime of rape carries its own baggage. Over the years, stereotypical and patriarchal notions have developed with regard to women’s sexual behaviour. Most of these notions are based on the assumption that the chastity and virginity of a woman are her most important “assets.” Popular notions consider rape as a fate worse than death since it robs women of these “virtues” and casts a stigma over victims for the rest of their lives. In these imaginations, rape is not a crime against a woman’s sexual autonomy or bodily integrity, but an irreparable loss to her chastity, “modesty,” and social standing. A woman who has already “lost” her chastity and modesty by having sexual relations before or outside of marriage, is not considered to have suffered too much harm; and the perpetrator is therefore not required to be punished too severely. In order to ensure that such stereotypical notions relating to the sexual behaviour and sexual mores of women are not considered in rape trials, the Indian Evidence Act was amended in 2003, prohibiting the defence from impeaching a rape victim’s testimony on the basis of her past sexual history. Unfortunately, the amendment appears to have impacted only the guilt determination phase of the trial, and not the sentencing phase. The site of stereotyping has merely shifted from the guilt determination phase to the sentencing phase of the trial, and stereotypes have an adverse impact on rape sentencing. In cases where the woman’s behaviour does not adhere to stereotypical constructs, the men who raped them end up getting lower sentences.
But, if the law prohibits past sexual history from being considered, how does it continue to impact rape sentencing? The answer to this is the nature of evidence required to prove rape, and the manner in which such evidence finds its way into the trial. The crucial fact that the prosecution has to prove in rape cases is the lack of the woman’s consent to sexual intercourse. Unlike laws of various other countries, Indian law does not require the prosecution to prove that the offender knew that the woman had not consented, or intended to rape the woman. The woman’s testimony that she had not consented to intercourse is sufficient. In fact, the Supreme Court has consistently held that conviction can be based solely on the testimony of the woman, and there is no need for any other corroborating evidence. However, the court has to be satisfied that the woman’s testimony is reliable, and she is in fact stating the truth. It is in the determination of the reliability of the victim’s testimony that stereotypes enter rape adjudication.
An important piece of evidence in rape cases is the report of the medical examination of the rape victim. Medical and forensic evidence enables the prosecution to show that penetration of the vulva by the penis (a pre-requisite for the offence of rape) had in fact taken place. Doctors are required to testify to this fact, as also the presence of body fluids and injuries, if any. Note, however, that the law does not require ejaculation. The protocols followed by doctors in examining rape victims across India go much beyond determining whether penetration had occurred. They continue to make assessments of the woman’s sexual history, and play a major role in advancing stereotypical notions relating to women’s sexual mores, by providing a scientific veneer to the process. This process includes the examination of the woman’s hymen and the distensibility of her vagina. Whether the hymen is torn, and if so, if such tears are old or new are noted. Doctors conduct the “two-finger test,” ostensibly to determine whether penetration has occurred. This highly invasive procedure involves the doctor inserting one, two, or more fingers into the woman’s vagina to determine the elasticity of the orifice. If the doctor is able to insert two or more fingers, it ostensibly indicates that the woman has had prior intercourse. The rationale behind this “test” is that if two fingers can pass through the vagina, a body of the size of an erect penis could have passed through the orifice at an earlier point of time.
Let me provide a concrete example of how the stereotypes find their way into the trial process through medical examination.
Assume that in examining an unmarried rape victim, the doctor notes the presence of old tears on her hymen. The doctor also notes that she was able to insert two or more fingers into the vagina of the victim. Although the doctor does not expressly opine that the woman was sexually active, this information is conveyed to the court by way of the medical report. My study showed that in cases where the medical report indicated that the woman had been sexually active before marriage, lower sentences were imposed on the offenders who raped them. In contrast, in cases where the offender had raped a virgin, the sentence was relatively higher. Thus, the sexual history of the victim had an impact on the sentence imposed on the offender.
Another factor related to virginity is the perceived loss experienced by an unmarried victim, in terms of her marriageability. The Supreme Court has in a number of cases noted how rape adversely affects the chances of a woman finding a suitable groom. In this context, the Court has even held that the marital status of the woman can be a relevant factor in rape sentencing. It is not surprising then that offenders who raped unmarried (and virginal) women got higher sentences in contrast to men who raped married women. Further, courts tend to impose lower sentences when a victim who was unmarried when the offence was committed, gets married during the trial. Since the rape did not impact the victim’s ability to get married, the harm caused by the offence is discounted. An egregious example of this approach is the Supreme Court’s decision in Baldev Singh v. State of Punjab (2011), another gang rape case that got a lot of media attention. One of the reasons that the Court gave for reducing the sentence in this case was that the victim was now married.
The second stereotype that affects rape sentencing is the perception that rape is a matter of shame for the victim. The Supreme Court has in fact frequently observed that a woman experiences a “deep sense of deathless shame” as a consequence of being raped. Combined with the notion that a woman considers her chastity and virginity to be invaluable, a myth has developed that on being inflicted with this “shameful” act, a woman will necessarily physically resist her attacker, when sexually assaulted. Such physical resistance, it is believed, leads to injuries on the woman’s body, which then demonstrates that sex was not consensual. Note, however, that the law does not require the woman to resist the attack. The presence of injuries might corroborate lack of consent, but the absence of injuries should not imply consent. Although courts do not appear to infer consent from absence of injuries, I found a marked decrease in sentences in cases where no injuries were present on the woman’s body. Hence, unfortunately, the notion that a woman should physically resist rape makes its way into rape sentencing.
The third interesting finding of my study was that courts consider acquaintance rape to be less traumatic than rape by a stranger. Offenders who were in a romantic relationship with the women they raped got lower sentences, compared to their counterparts who raped women they did not know. In cases of statutory rape where the under-aged girl had consented to intercourse, courts consistently imposed lower sentences on the offenders, based on the understanding that the young woman had otherwise “contributed” to the offence.
Law reform movements, as well as policy-makers have not paid much attention to issues pertaining to stereotypes surrounding rape sentencing. For justifiable reasons, their focus has been on steps to ensure higher convictions in rape cases. In addition to these efforts, there is need for reforms to rid rape sentencing of stereotypes. This would include: first, changing the nature of medical evidence collected in rape cases. Protocols for medical examination of rape victims should be modified, and corresponding changes should be made to medical education syllabi. The second reform required is the formulation of principles to be followed by judges while sentencing rape offenders. Factors that should not be considered in sentencing rape offenders (such as the victim’s sexual mores) should be listed. Currently, a large number of rape offenders whose victims do not adhere to the stereotypical construct of a rape victim get relatively lower sentences. Ensuring principled sentencing, one that is in tune with our constitutional values, is a better guarantee for justice to rape victims, rather than legislative steps providing for capital punishment, chemical castration and the like.
Mrinal Satish is an Associate Professor at the National Law University, Delhi. His doctoral dissertation at Yale Law School examines the issue of rape sentencing in India. He can be contacted at mrinal.satish@aya.yale.edu)
Source- http://www.lawandotherthings.blogspot.in/

#India- “Women Against Sexual Violence and State Repression” to the Justice Verma Commission #Vaw #Justice


(Women Against Sexual Violence and State Repression (WSS) is a non funded grassroots effort initiated in November 2009, to challenge the violence being perpetrated upon women’s bodies and societies. We are a nationwide network of women from diverse political and social movements comprising women’s organizations, mass organizations, civil liberties, student and youth organizations, mass movements and individuals. We unequivocally condemn state repression and sexual violence on women and girls by any perpetrator(s). We have conducted fact findings and brought out several reports of cases of sexual violence in conflict areas, notably in Jharkhand, Odisha, and Chhattisgarh; and have collaborated with women’s organizations in Kashmir and the North East in their struggles in such situations. We attempt to support women victims, approach courts and human rights institutions for redressal, and conduct awareness campaigns.)

Representation by  “Women Against Sexual Violence and State Repression” to the Justice Verma Commission.

(Women Against Sexual Violence and State Repression (WSS) is a non funded grassroots effort initiated in November 2009, to challenge the violence being perpetrated upon women’s bodies and societies. We are a nationwide network of women from diverse political and social movements comprising women’s organizations, mass organizations, civil liberties, student and youth organizations, mass movements and individuals. We unequivocally condemn state repression and sexual violence on women and girls by any perpetrator(s). We have conducted fact findings and brought out several reports of cases of sexual violence in conflict areas, notably in Jharkhand, Odisha, and Chhattisgarh; and have collaborated with women’s organizations in Kashmir and the North East in their struggles in such situations. We attempt to support women survivors of such violence, approach courts and human rights institutions for redressal, and conduct awareness campaigns.)

WSS notes with concern that the entire public debate arising out of the recent Delhi gang rape incident has centered round the issues of “enacting a strong law” and “prescribing harsher sentences”. It has failed to recognize more basic issues – the enormous social obstacles encountered in registering complaints, in the conduct of thorough investigation, in the protection of witnesses, in fast and efficacious prosecution and in unbiased adjudication – in other words, the issues of implementation of the law, and the functioning of the police and judicial machinery – which necessarily precede sentencing. The debate has also largely failed to take into account the deeply patriarchal character of our social institutions, and law enforcement machinery which render women vulnerable to violence in the family, in the larger community, in their work places and public places.

In particular, in this representation, WSS would like to focus on the even more serious situation that arises when patriarchal attitudes are reinforced by caste, communal and class inequalities or perpetrated by the state, that is, when sexual violence is inflicted as a part of an assault by a dominant community as in a caste attack or communal riot; or when sexual violence is inflicted on women in custody in a police lock-up or jail or state institution; and when sexual violence is perpetrated by the police, security forces or army. Rapes occur daily in this country and adivasi, dalit, working class women, women with disability, hijras, kothis and sex workers are especially targeted based on the knowledge that the system will not support them when they file complaints of rape. We also note with concern that our suggestions are limited to what will affect women and our suggestions on sentencing must be also interpreted to mean that at least equivalent sentences should be imposed on perpetrators of the same crimes upon children. The current sentencing laws on those are woefully inadequate.

However, our reach in terms of getting input directly from these communities is still limited by the people we know and have worked with, and we hope that our submissions do not contribute to limiting the discussion to those groups and people who have access to information via the internet and English newsmedia, and we hope the Justice Verma Commission carries out wide ranging consultations with women in every locality, with dalit groups, rural groups, labor groups, and groups working on communal sexual violence and sexual violence against adivasi women, groups working in areas in conflict with the state, and groups working on disability and transgender issues.

Here are our suggestions:

A. In regard to Sexual Violence by Police and Security Forces

Defining custodial violence: Any incident of sexual assault by police/ security forces or SPOs accompanying them, irrespective of where it occurs, should be treated as custodial violence since the perpetrators exercise power and control over the people of that area owing to their position of authority. Such sexual assault should be considered to be a case of aggravated assault.

Security of women detainees:  The lack, especially in remote/ small police stations, of women constables (in whose presence women under-trials and prisoners are more likely to be safe), is a serious issue. If there is no woman constable on duty, that particular police station must not be allowed to detain women. Women constables must be present throughout any interrogation of women detainees. Arbitrary or proxy arrests and illegal detention of women and children during search operations in conflict areas, which render women extremely vulnerable, have to stop.

Rule of law:  There must be strict adherence to the procedures and safeguards for protecting women in custody and women should be produced before the court at the earliest opportunity, even before the mandatory 24 hours, to be able to disclose original violations as well as further ill-treatment (if any) while in custody of police or jail authorities. Their families also must be intimated within this time period of their whereabouts.

Detention of women: The rules about arresting and detaining women at night should strictly apply to all women and transgender people, including sex workers. Transgender people must be handled only by women police officers and not male police officers, given the history of custodial violence against them.

Judicial recognition:  The judiciary must take suo moto cognizance of any irregularity in the arresting procedure and delays in presenting the accused before the magistrate. Any non-compliance of the D.K. Basu guidelines and other provisions of the Criminal Procedure Code should attract strict action and accountability from the Court. Once the woman has been presented before the magistrate, it is the responsibility of the judiciary, to ensure that her dignity and safety are ensured and her complaints of violations of her rights addressed. If any violation of the rights of a woman takes place in police or judicial custody, the judiciary should take the strictest action against the perpetrators in a time bound manner, and she must immediately be given the option of being transferred to custody outside the state.

Investigation and registration in cases of custodial or state violence: It cannot be expected that an aggrieved person/family who has been violated by personnel of the police station of her/their area, will go back to report the violation to that very same police station. She should have the option of registering cases in another district or state, and the case must be investigated by an authority not involving local police if they are the perpetrators. Special guidelines must be evolved for such cases along the lines of the NHRC guidelines for encounter killings.

Vulnerability in conflict situations:  There must be a quick and effective response from the district and state administration when a woman shows the courage to make a complaint of sexual violence. Instead, the rape survivor, her family and other witnesses are only further terrorised by the people in authority. The administration should take suo moto cognisance of such complaints, whether they come directly, through the media or any other source. Third-party complaints of custodial sexual violence should also be allowed to initiate the process of safeguarding the survivor behind bars from further assault in custody.

All state-supported private militias and vigilante groups, such as Salwa Judum and others in the conflict areas of Central India, Manipur and Kashmir must be disbanded. Action must be taken against the members of these groups accused of sexual violence and other human rights violations as it would apply to the police and security forces, i.e., treating their cases as aggravated sexual assault.

Registering cases:  The FIR of all victims should be registered, even where the perpetrators are from the Central Armed Police Forces or the Army, and refuge must not be taken under impunity provided under unjust laws such as the Armed Forces Special Powers Act. In particular if a Superintendent of Police receives a complaint that a particular police station has refused to register an FIR, he must be made personally liable to get the FIR registered immediately and to conduct an enquiry against his erring subordinate, with legally enforceable consequences for not doing so within 48 hours of being informed. .

Criminal prosecution: Sexual assault by the Central Armed Police Forces or the Army must be brought under criminal law. In cases of sexual offences, the law should clearly state that the Army has no jurisdiction to prosecute the accused member of the armed forces. The accused must be handed over and all investigation must be done by the police strictly in accordance with the law, and supervised by a senior police officer. The requirement of sanction for prosecution under Sec. 197 of the Criminal Procedure Code should be done away with in cases of custodial sexual violence and other human rights violations.

Facilitating investigation:  Immediate arrest of the accused and suspension of all accused from their posts, once the FIR is registered or suo moto cognizance of the crime is taken, is essential. The accused should not be allowed to exercise any authority in the area where the complaint of sexual violence is made, till the final determination of the complaint. Armed forces personnel and public servants against whom there are serious charges of violence against women, or who have been named in FIRs alleging violence, should not be considered for national awards and military honours or promotions until their names are cleared.

Command responsibility:  In cases of sexual assault committed by State personnel, the authorities higher up in the hierarchy (SP and the Collector or any other senior officer in the chain of command of the Central Armed Police Forces) should be held criminally liable for crimes committed by those under their command or within their control. Ignorance or lack of information about sexual violence committed in his/her jurisdiction cannot be an excuse for inaction.

Sentencing: The sentences for custodial rape and sexual assault must be enhanced compared to the sentences for civilian rape and sexual assault, to act as a deterrent for security officers misusing the power they have derived from being officers of the state.

Speedy investigation: The responsibility of a proper investigation falls on the investigating agency. Any delay, shoddiness, partisanship and inefficiency in collection of evidence, and lack or delay in medical examination etc should be seen as a criminal offence and negligence of duty, and the concerned officers or personnel should be penalised for negligence or dereliction of duty and/or charged with complicity in the crime.

Protection of victims and witnesses:  Protection of victims and witnesses has to be ensured, from the pre-trial to post-conviction stages, in accordance with the recent jurisprudential developments, the Law Commission’s 198th Report of August 2006, and decisions of the Supreme Court.

Liability and damages:  It is the government’s responsibility and duty to protect the rights of women, the responsibility grows manifold when the woman is in the custody of the State. Considering the gravity of the crime, the rape survivor has a right to reparation for all the costs incurred in fighting for justice legally, to recover medically, and to recover loss of livelihood or shelter or even ability to stay in the same area as before, as a consequence of fighting a case against the perpetrator.

Reparative Justice:  The State must be obliged by law to make provisions for free and high quality medical treatment, psychological care, shelter and livelihood in order to overcome possible destitution and social ostracism. This should be done through effective implementation and budgetary support of existing legal provisions and schemes for compensation/ rehabilitation for sexual assault. Such compensation should not be linked to the criminal trial and prosecution. Schemes include, but are not limited to, the Victims Compensation Scheme (brought about through a 2008 amendment to section 357A of the Cr PC) as well as the National Commission for Women’s scheme for assistance and support services to victims of rape.

B.  In regard to sexual violence against marginalized groups or by dominant  groups.

  1. While dealing with the violence against women belonging to marginalised groups like Dalits, Adivasis, denotified groups, religious, gender, sexuality and other Minorities, the dominant position of the perpetrators must be kept in mind and such cases should be probed under the specific laws applicable to these atrocities. Sexual assault in situations of conflict based on community, ethnicity, caste, religion, gender, sexuality and language, ought to be treated as specific circumstances of aggravated sexual assault.
  2. Since there are specific kinds of sexual violence documented to be specifically perpetrated against dalit women, such as parading naked, groping, tonsuring of hair and mutilation; against minority community women during communal riots such as mutilation the genitals and womb, cutting breasts; against transgender women like stripping, burning or mutilating the genitals, forcibly cutting hair, stripping and/or redressing in clothes to fit assigned gender, confinement, rape by insertion of objects – all of which are intended to sexually assault, degrade or humiliate women who are so targeted, these specific offenses should be defined along the scale of aggravation with specific punishments which are not dependent on the discretion of the judge.
  3. Meeting the burden of proof that an offence was committed with an intent to humiliate and intimidate a member of the Scheduled Caste/Tribe in the Prevention of Atrocities Act has been made impossibly difficult leading to low rates of conviction. When the perpetrator is of a dominant caste/class/religious/gender/sexuality group and the survivor of assault is of an oppressed group, the power difference will always mean that the police, criminal justice system, media, and public will be fearful of taking the side of an oppressed community. This means that dalit, adivasi, religious and gender/sexuality minority community women, and women with disabilities are routinely targeted for the reason that it is harder for them to fight a legal case against the perpetrator. Thus when the perpetrator is of a dominant caste/class/religious/gender/sexuality group and the survivor of assault is of an oppressed group, these acts should be defined to automatically be in place and the burden of proof that such targeting did not take place should be on the perpetrator.
  4. Refusal to file an FIR based on caste, class, gender identity, profession, or disability of the survivor must be legally punishable through reporting to superior police officers or officers at other police stations. Once such a complaint is made, the  officer who hears it must be legally liable to file an FIR immediately and conduct an enquiry against the police officers who refused to file the FIR. Likewise refusal to provide medical care on these grounds should be prosecutable by law.
  5. Acts like the Karnataka Police Act and the Hyderabad Eunuch Act that place the entire transgender community under suspicion like the colonial Criminal Tribes Act, and demand their routine reporting to the police act as a vehicle for police harassment and sexual violence against transgender women. These should be immediately repealed.
  6. Khap Panchayats, casteist-communal organizations and other kinds of vigilante groups are responsible for spreading and normalizing misogyny. The perpetrators of honour killings, honour-related crimes and other moral policing, including those who abet this brutal crime, must be promptly prosecuted and awarded severest punishment. Specific legislation must also be introduced to punish the full range of violent and abusive acts that attempt to restrict the choices of women including socio economic boycott, expulsion from the home or community, etc.

C. In regard to the definition of sexual assault.

Expansion of definition of sexual assault: The expansion of the definition of penetrative sexual assault under Sec. 375 IPC, beyond peno-vaginal penetration (rape) as proposed in the Criminal Law Amendment Act is a step in the right direction.  It is imperative that the definition of sexual assault is broad enough to include anal, oral rape, digital rape, rape with objects etc. and also includes sexual assault against transgender people. Section 377 should be repealed as it criminalizes consensual same-sex relations and all its provisions for punishing

Gap in law of sexual offences: However, there continue to be serious gaps in the codification of crimes of non-penetrative sexual assault. The gap between ‘outrage of modesty’ (S. 354 IPC) and ‘penetrative sexual assault’ remains large. We believe that sexual crimes form a continuum, and that the graded nature of sexual assault should be recognized, based on concepts of harm, injury, humiliation and degradation, and by using the well-established categories of sexual assault, aggravated sexual assault, and sexual offences.

‘Outraging modesty of a woman’ to be replaced with ‘violation of bodily integrity:  S.354 and S. 509 IPC, which contain archaic notions of ‘outrage of modesty’, ought to be repealed, and a clear gradation of offences and punishment as mentioned above should be inserted. We believe that ‘sexual assault’ should rest firmly on the concept of violation of bodily integrity and dignity, and sexual harassment should be defined as it is in the Vishaka Guidelines.

New sexual offences to be defined: New crimes need to be formulated to punish acts of attempt to rape, stripping, parading naked, groping, tonsuring of hair and mutilation which are intended to sexually assault, degrade or humiliate women who are so targeted. Further stalking, flashing, gesturing, blackmailing as well as sexual harassment must be codified as crimes under the rubric of sexual offences. These should include any electronic and other forms of technology which promote rape as a game, promote electronic stalking or forced viewing of pornography, etc.. We welcome the introduction of a specific offence for acid attack.

Gender neutral sexual assault: The formulation of the crime of sexual assault as gender neutral in all circumstances, as proposed in the Criminal Law Amendment Act, makes the perpetrator/ accused also gender neutral, i.e a woman or man can be accused of sexual assault. We believe that the perpetrator has to remain gender-specific and limited to men as perpetrators, as there is no empirical evidence to support a finding to the contrary, and in light of this gender neutrality of perpetrator can be used to file false cases against women who complain of rape. Hence we strongly oppose the gender-neutrality clause in relation to perpetrators under Sec. 375 IPC.

Gender neutrality of the victim: The survivor of sexual assault should be treated as gender neutral with respect to the law, even if the perpetrator is still defined as male. With respect to all forms of violence, the victims/survivors should not be described just as women, but as ‘person’, as transgender people face immense targeted sexual assault and in some cases of state and custodial violence the victims can also include men. In cases of abuse of children also children of all genders are targeted.

“Purpose”: We also express a deep problem with the expression ‘penetrate for a sexual purpose’ in Sec 375(a) of the proposed Criminal Law Amendment Bill 2012. We maintain that any contact without consent is what must be punished and the intent of the perpetrator is both irrelevant, and impossible to prove.

Consent:  Consent must be clearly defined as verbal agreement which can be withdrawn at any point during sexual activity. Initiation of sexual activity or sex work is not an invitation to rape or sexual assault and battery. The lack of marks on the body can not be used as evidence of consent (as in the Suryanelli case) because sedation, rape based on threats of retaliatory violence, and rape where the perpetrator holds economic, caste, communal, custodial or state power over the survivor can all be perpetrated without leaving signs of force.

No exception to consent rule for marital Rape: Rape within marriage should be recognized and should be strictly penalized.  The punishment for rape should be the same irrespective of whether the perpetrator is married to the survivor of rape or not.

No exception to consent during medical procedures: Consent should be required even when penetration/genital exam of a patient by a doctor occurs for “proper hygienic or medical purposes” which is currently a defined exception for rape under the Criminal Amendment Bill 2012. Unless the patient is unconscious, doctors must have the consent of a patient for any form of penetrative or genital physical exam, and punishment for doctors abusing their privilege as doctors should be higher than for civilians.

No exclusion of prosecution of Public Servants: We suggest an exclusion of the application of S. 45 and S. 197 Cr PC to the provisions of sexual assault, in order that the existing widespread impunity for sexual assault where it is committed by public servants, is ended.  We believe that no sexual assault can ever be construed as being perpetrated “in discharge of official duty” and therefore the statutory requirement of prior sanction from the government for prosecution of public servants ought not to be extended to the crime of sexual assault;

Age of consent: The age of consent should be kept at 16 years of age since the reality of caste, communal and moral policing particularly when it comes to young people from different religions and castes falling in love and running away, makes misuse of the age of consent law possible to  prosecute young lovers who go against parental dictates of ‘arranged marriage within the fold of one caste/religion’.

Consent during sex work: Rape during sex work must be recognized explicitly as a sexual offence.  Sex work should be decriminalized so that what takes place without consent can be clearly distinguished from the specific acts the sex worker is paid for and has consented to.

Inclusion of women in drafting process: Local womens’ groups in India, including those of adivasi, dalit, religious minority women, transgender women, self help groups  and woman panchayat representatives must be consulted in drafting laws upholding women’s rights at home and in public.

D. In regard to pre-trial, trial and evidence procedures.

  1. SOPs like those of Delhi police should be reviewed to ensure that they reflect a gender sensitive and meticulous approach to investigation and officially adopted by all police departments in states and UTs, and should be made publicly accessible. Violation of the SOP by police should be made punishable by law, especially with respect to refusing to file FIRs.
  2. The two finger test and checking of old tears hymen which are widely used during medical examination of the rape victims to determine whether they are ‘habituated to sexual intercourse’ or not, must be explicitly barred and only fresh damage relevant to the sexual assault in question should be recorded. Likewise build and health of the survivor of rape and presence of marks on her body to determine whether she had or could have “resisted the assault” is irrelevant as mentioned above – use of threats, weapons, sedation, etc can all be forms of coercion that do not leave marks or allow the survivor to fight back. Testing should be done by women doctors if possible, and if not by any doctor the survivor is comfortable with –no survivor should be turned away for lack of a female doctor, and the survivor should be able to be accompanied by a chosen family member at all times during medical tests. Hospitals turning away survivors of sexual assault should be punishable by law. Victims should not be subjected to lie detection tests as is done in some parts of the country, and forensic tests must include DNA tests for which central laboratories and a DNA database must be set up to which samples can be mailed.
  3. Police personnel and all state officers who deal cases of sexual assault must undergo compulsory sensitization about handling these cases, so that they do not traumatize the survivor of assault with irrelevant and traumatic questions or statements of judgement or dismissal. They must also be sensitized specifically to deal sensitively with survivors of sexual assault who are dalit, adivasi, religious minority, transgender women, sex workers, and women with disabilities. Each complaint of sexual harassment and molestation must be taken seriously and failure to file an FIR must be punishable by law.
  4. Women police officers should be available and visible at a women’s help desk in every police precinct for each step of processing a sexual assault or harassment complaint, although no survivor should be turned away for lack of a female police officer. The number of women at all levels of the police force must increase to 50%, and within this dalit, adivasi, religious, gender and other minority women police officers should be represented according to their proportion of the local population. For their retention, proper housing, women’s toilet, and training facilities as well as a cell to address sexual harassment complaints within the police force must be made available. A minority of policewomen deployed to ensure safety for women prisoners are not able to be effective if they are pressured by a male majority in their workplaces.
  5. Trials in rape cases should be concluded within a 90 day period, with trials postponed only to the next working day and without any unnecessary delays. All pending cases of rape (all India-100,000, Delhi 1000) should be dealt with by specially constituted courts with both rural and urban accessibility within 90 days.
  6. Trials pertaining to sexual offences should be conducted as far as possible by women judges, and in cases of SC/ST or communal violence, by women members of the minority community. The number of judges, especially women judges, must also be increased in lower level courts and vacancies in these courts must be filled up. A special cadre of Public Prosecutors must be trained to prosecute cases of sexual assault. The trainings should include understanding of the crimes of sexual assault, gender sensitivity in the conduct of the trial and a comprehensive understanding of the laws relating to sexual assault.
  7. There should be specific provisions for recording the testimony of disabled survivors of assault or witnesses. Cases involving sexual assault against disabled women often end in acquittal as their testimony is either not recorded at all, or is recorded without the help of independent interpreters.
  8. Guidelines for victim and witness protection should be available for victims of violation of bodily integrity (outraging the modesty in the current law) as well as all forms of sexual assault, and bail should be canceled for cases where intimidation can be shown.
  9. In trials of sexual offences, the victim/survivor, her family members or members of women’s organizations representing the complainant should ordinarily be permitted to engage a counsel of her choice to assist the prosecution. In addition free legal, medical, psychological and rehabilitative services should be made available to enable working class women to pursue legal justice.
  10. Even in an in-camera trial, on the request of the victim/survivor, her representatives should be permitted to remain present.
  11. Guidelines must be laid down for the cross examination of a survivor of sexual violence, particularly highlighting the changes in the CrPC sections which now do not allow character assassination or looking at past history of the survivor.
  12. There should be a strict code of conduct and binding jail-time punishment for officials holding public office, including ministers etc while commenting on cases pertaining to sexual assault or rape. Judges who deal with sexual assault/ rape cases should be sensitized and held accountable with legally enforceable punishments for dismissing rape cases based on violating the constitutional right of every person to a fair hearing – by disbelieving the rape of a dalit woman as in the Bhanwari Devi case, or for suggesting extra-legal remedies or marriage to the accused instead of strictly pursuing legal justice for the crime.
  13. The pending cases against security forces, police and wardens of Nari Niketans and other protective homes for girls and women must be dealt with on a priority basis so that instead of inflicting further violence these institutions play their role of providing thorough investigation and appropriate support.
  14. The chosen gender of a transgender or intersex person should be respected during trial.  Transgender people are often punitively raped for crossing the boundaries of assigned gender and the rape trauma is compounded by their bodies and minds being handled in ways to remind them of their assigned gender. The trial should not further increase that aspect of the trauma.
  15. A date base of cases of sexual assault be maintained online and be publicly accessible, to track the implementation and performance of the law in each registered case, to help identify weak links. The name of the survivor must not be mentioned, but the neighborhood where the assault took place, and the progress on the case must be made publicly known on the internet and must be available at each local police station.
  16. Any media establishment that publishes the name or contact information of a survivor of rape should be routinely punished. Likewise there should be punishment for media reports that witness and broadcast images of sexual violence without having first immediately contacted law enforcement authorities. There should be publicly available letter boxes and an online site where reports on such media misuse can be directly sent.

E. In regard to punishment for rape.

In cases of aggravated sexual assault, punishment should be for life imprisonment with no remission or parole.

Sentences should run consecutively instead of concurrently in sexual crimes.

Sentencing should be spelt out as much as possible for different extents of punishment, degradation, harm and repetition of the act of sexual violation, so that judicial discretion is limited to small difference in the nature of the crime rather than focusing on the socioeconomic standing of the survivor and perpetrator.

WSS does not support death penalty or chemical castration as a punishment for rape. We need to evolve punishments that act as true deterrents to the very large number of men who commit these crimes. Cases of rape have a conviction rate of as low as 26% showing that perpetrators of sexual violence enjoy a high degree of impunity, including being freed of charges.  Our vision of justice does not include death penalty, which is neither a deterrent nor an effective or ethical response to acts of sexual violence. We are opposed to it for the following reasons:

  1. We recognise that every human being has a right to life. We refuse to deem ‘legitimate’ any act of violence that would give the State the right to take life in our names. Justice meted by the State cannot bypass complex socio-political questions of violence against women by punishing rapists by death. Death penalty is often used to distract attention away from the real issue – it changes nothing but becomes a tool in the hands of the State to further exert its power over its citizens. A huge set of changes are required in the system to end the widespread and daily culture of rape.
  2. There is no evidence to suggest that the death penalty acts as a deterrent to rape. Available data shows that there is a low rate of conviction in rape cases and there is a strong possibility that the death penalty would lower this conviction rate even further as it is awarded only under the ‘rarest of rare’ circumstances. The most important factor that can act as a deterrent is the certainty of punishment, rather than the severity of its form.
  3. As seen in countries like the US, men from minority communities and economically weaker sections make up a disproportionate number of death row inmates. In the context of India, a review of crimes that warrant capital punishment reveals the discriminatory way in which such laws are selectively and arbitrarily applied to disadvantaged communities, religious and ethnic minorities. This is a real and major concern, as the possibility of differential consequences for the same crime is injustice in itself.
  4. The logic of awarding death penalty to rapists is based on the belief that rape is a fate worse than death. Patriarchal notions of ‘honour’ lead us to believe that rape is the worst thing that can happen to a woman. There is a need to strongly challenge this stereotype of the ‘destroyed’ woman who loses her honour and who has no place in society after she’s been sexually assaulted. We believe that rape is a tool of patriarchy, an act of violence, and has nothing to do with morality, character or behaviour.
  5. We also believe the law should punish rape with murder more strongly than rape without murder, so that the law does not provide an incentive for the perpetrator to kill the survivor of rape.
  6. An overwhelming number of women are sexually assaulted by people known to them, and often include near or distant family, friends, husbands, workplace superiors and partners. The awarding of death penalty rests on the logic that rape and battery are rare events. Awarding equal punishment for the same crime would lead to a large portion of the male population being awarded death penalty and any penalty has to be feasibly equally applied to the entire population of perpetrators.
  7. With death penalty at stake, the ‘guardians of the law’ and the perpetrators will make sure that no complaints against them get registered and they will go to any length to make sure that justice does not see the light of day. Who will be able to face the psychological and social consequences of having reported against their own relatives when the penalty is death? In cases of sexual assault where the perpetrator is in a position of power (such as in cases of custodial rape or marital rape or caste and religious violence), conviction is notoriously difficult. The death, penalty, for reasons that have already been mentioned, would make conviction next to impossible.

Chemical castration is also a problematic sentence since

1. It violates the fundamental right to bodily integrity and this can not be violated by the State.

2. It misrecognises much of the violence in rape. Assault and battery are carried out with fists/rods/acid and other weapons and chemical castration may not prevent a perpetrator from using these

3. We feel that this penalty would also, like death penalty, not be awarded equally to all perpetrators irrespective of class, caste, religion and socioeconomic background, but be used selectively in some cases.

F. In regard to the urgent need for making workplaces and homes of women more safe.

  1. The Committees against Sexual Harassment which are to be constituted in various state and private establishments, including informal sector worksites, houses where domestic workers work, construction sites, homes where women gather to do piece-work or beedi/agarbati rolling, sex work sites, and NGOs, should be constituted with priority and urgency as per the Vishakha judgment. Renewal of formal workplace licences to employ workers should be made contingent on this. The said Committees should function independently and effectively and not be nominated by the employer to avoid conflict of interest, and they should create an atmosphere of no tolerance to sexual harassment. This would go a long way in ensuring dignity and empowering women at their workplace.
  2. Section 14 of the proposed 2012 amendment to the sexual harassment bill which punishes a woman for a so-called false complaint must be scrapped, as must clause 10 suggesting a conciliation as the first step – this would amount to covering up sexual harassment which is a criminal offence. The Bill should also take the caste, class and religious dimensions of the perpetrator and the victim into account, and mandate that women should not be forced to comply with gender specific dress codes and women employees should be able to able to choose their dress code.
  3. It is a common observation that the Domestic Violence Act is poorly implemented in most States with government servants being given additional charge of Protection Officer, lack of proper Shelter Homes for women victims of domestic violence, abuse within those shelter homes and on the streets for those rendered homeless by domestic violence, and poor understanding of judicial officers of the powers of civil injunctions and specific reliefs available to them
  4. Women employees working in night and early morning shifts should be
    provided safe public transport facilities by the employer, and both public and private forms of transport must be effectively regulated and monitored for safety by the government. The routes from public transport sites to housing areas must be well-lit and tinted window vehicles should be strictly monitored.
  5. There should be an expansion of the public transport system and the government should bring a public-transport-for-women-on-demand facility for any neighborhood with a number of working women coping without public transport, including dispersed adivasi settlements and urban slums, functioning in the same manner of response to demand as anganwadi-on-demand. Strict implementation of women’s general compartment in all trains and women’s seats in all inter-city buses is necessary.
  6. The number of affordable working-women’s hostels to ensure safe accommodation for single working women must be increased. All out-station girl students studying in colleges must be provided cheap and safe accommodation by their respective institutions.
  7. Due to its impact on physical and mental health and a high degree of mortality, rape is also a public health issue. The public health workforce (ASHA and ANM workers) need to be trained in sensitizing at the family and community level in destigmatizing rape-survivors, enabling them to file FIRs and access legal provisions, providing medical care and counseling, and encouraging women to speak out and seek justice. The ASHA workforce should also have dalit, adivasi, religious, gender and other minority women represented among them according to their presence in the local population to enable local women to feel comfortable reporting sexual assault. All public hospitals must be trained and equipped to immediately file an FIR and conduct a proper preliminary medical exam on behalf of patients who have survived rape For this the budget allocation of the government to the women and child, health and public transport departments must be accordingly increased by the next Budget.
  8. Effective and 24 hour functional women helpline and other emergency services should be provided around the clock and should be well advertised by video and audio messages in rural and urban areas. Emergency telephones to this helpline must also be available at all bus and train stations. Calls should be addressed around the clock by enough specially trained staff to meet the demand, and calls should be automatically recorded for later review, and the staff should be able to dispatch immediate vehicles to assist women facing an emergency. Disciplinary action must be taken against staff for inappropriate or inadequate responses.
  9. The state should take over agencies that provide women domestic workers, the conditions of service of domestic workers must be laid down and effectively implemented, and complaints of sexual violence made by them promptly redressed.
  10. Institutions such as the National Human Rights Commission (NHRC), National Commission for Schedule Castes (NCSC), National Commission for Scheduled Tribes (NCST), National Commission for Minorities (NCM), National Commission for Women (NCW) and the corresponding State Commissions, created for safeguarding constitutional provisions and protection of vulnerable groups must be more proactive. They should be made to respond to all complaints lodged with them in a time-bound manner. There should be systematic and regular review processes by independent bodies involving women’s groups, put into place to audit the work of these institutions
  11. The system of shelters for women should be greatly expanded, and every state-based shelter home for women, nari niketans, remand homes, juvenile delinquent homes, shelters for disabled children, orphanages, as well as schools, prisons and areas under army patrolling or combing operations should have a schedule of inspections to probe for ongoing sexual harassment or assault by committees whose members are independent of the government. The people confined within should have the right to insist on 1 person whom they trust outside jail to accompany the team when it does these surprise checks
  12. The current policy of clearing the streets of vendors, closing shops by a specific hour of night and chasing away other people who occupy public space at night makes the street more unsafe for women. This policy should be stopped as a greater presence of people and well-lit public areas at night are essential in reducing the danger to women traveling to and from work as well as homeless women.  Women should be given priority in being given vendor licenses and employment in public transport.

G. In regard to Discouraging Patriarchal Culture.

  1. All those persons against whom charge sheets have been filed for rape cases must be tried and either cleared of those charges, or sentenced and barred from contesting elections for public bodies by the Election Commission.
  2. Advertisements, movies and public materials that condone, trivialize or misrepresent violence against women and sexual harassment should be banned.
  3. Women have been carrying out powerful movements against liquor which is found to be connected to increase in domestic violence and incidents of sexual assault. The demands made by women in their local areas must be responded to by local authorities, who must act against the liquor mafia.
  4. Restrictions on movements and intimidation of women’s groups and democratic rights groups, while conducting fact-findings of incidents of sexual and other forms violence in conflict areas, have to stop. Repression, labelling and intimidation of women activists and human rights defenders must end.
  5. Mass visible and audio messages on what constitutes sexual offenses and what are the facilities available to address it and punishment for the same, should be displayed in all public vehicles and public places such as markets, bus stands, train stations, etc. These areas should be accessible by people with disabilities to reduce their vulnerability due to being confined at homes or shelters.
  6. School curricula should include basic information on how stalking, harassment, and touching another person without consent constitute unacceptable and illegal behavior, and the government should set up a training module for at least 2 staff members from each school to help children to report cases of domestic sexual assault. Such teaching should also happen in prisons. Caste, communal, gender identity and disability based discrimination against dalit, adivasi, religious minorities, gender and sexuality minorities, people with disabilities, homeless and working class people, etc. should be clearly and unequivocally taught to be unacceptable. This will greatly decrease their vulnerability to sexual assault.
  7. All departments that deal with disability pension administration should have a clearly marked desk where people can go to report sexual harassment and assault. They as well as police stations should carry information for complaints procedure and all awareness material in accessible formats to cater to people with disabilities  (Braille, audio, audio-video with same language sub-titling, large print, easy to read and pictorial guidance and availability of sign language interpreters). The inaccessibility of police stations and their present lack of capacity to interpret complaints from women with disabilities must be addressed in the long run.
  8. The legal age for young girls, transgenders, and boys to legally leave their biological homes and exercise autonomy as individuals, due to abusive situations at home should be lowered to 16 to give them enhanced protection against false cases filed by families and family violence. They should be able to chose a guardian instead of having to go to a juvenile detention home.
  9. Implement 50% reservation for women in elections at all levels, with reservation for minority communities in proportion to their presence in the local population.
  10. Create a National Commission to monitor implementation of the CEDAW.

Custodial death of an Undertral Prisoner – non compliance of procedure #Westbengal


Inline images 1

3 October 2012

To
The Chairman
West Bengal Human Rights Commission
Bhabani Bhaban
Alipur
Kolkata – 27

Respected Sir,

We conducted fact finding on the custodial death of a prisoner (Under Trial Prisoner) at Calcutta national Medical College & Hospital, Kolkata when he in judicial custody of Alipore Central Correctional Home, Kolkata. It is also revealed during the fact finding that the victim was subjected to torture in police custody Lalgola Police Station, Murshidabad soon he was arrested. On 10.8.2012 the victim was sent to Lalbagh Sub-Divisional Correctional Home, Murshidabad by order of the ACJM Court, Lalbagh but his family members had no idea/information about his detention at Alipore Central Correctional Home, Kolkata. Though post mortem examination of the victim was held but there was no enquiry by any judicial magistrate on the custodial death of the victim in compliance of Section 176(1-A) of Criminal Procedure Code. Therefore the incident of the victim again proved that the law is incapable of granting succor to the victims of custodial violence/death and the entire exercise on the part of the government officials and judicial authorities in this case proves the arrogance of the entire system in refuting to implement the legal procedure and abide by the rule of law with which they are not comfortable.

Hence we demand your urgent action in this matter in the following manner:-
• The whole matter must be investigated by one neutral investigating agency
• The provisions of Section 176(1-A) of Criminal Procedure Code must be implemented in this case.
• The perpetrator police personnel of Lalgola Police Station must be booked under the law immediately for perpetrating custodial torture upon the victim and they must be punished in accordance with law.
• The concerned perpetrator jail authorities must be reprimanded for causing the death of the victim in custody and be punished accordingly.
• The victim’s family must be compensated adequately.

Thanking you,
Yours truly,

Kirity Roy
Secretary, MASUM
&
National Convener, PACTI

Particulars of the victim: – Mr. Ketabul Seikh (deceased), son of Late Rustam Ali, aged about – 24 years, by faith-Muslim, by occupation- car driver, residence at village – Natatala, Post Office – Paharpur, Police Station-Lalgola, District-Murshidabad, West Bengal, India.

Particulars of the perpetrators: – (1) Mr. Debasish Sarkar, Mr. Debabrata Sarkar, Mr. Kajal Babu, Mr. Rontu Babu (Constable), Subhasis Ghosh and the other involved police personnel of Lalgola Police Station; (2) The Superintendent of Labagh Sub-Divisional Correctional Home, Lalbagh; (3) The Superintendent of Berhampore Central Correctional Home, Murshidabad and (4) The Superintendent of Alipore Central Correctional Home, Kolkata.

Date & time of incident: – On 09.08.2012 and subsequent thereafter.

Case Details:-

It is revealed during the fact finding that the victim belonged from a poor family. He was a part time truck driver. On 09.08.2012 he was arrested by the police personnel of Lalgola Police Station from Lalgola Bus Stand with other three men who were also come there for finding a suitable job for them. Thereafter all of them were taken to police station. Reportedly he was tortured in the police custody as well as by the police personnel led by Mr. Debasish Sarkar (Officer-in-Charge). He was implicated Lalgola Police Station Case No. 407/2012 dated 09/08/2012 under sections 397/411/413/ 414 of Indian Penal Code. On the same date the victim’s family members came to the police station but they were also threatened by the police personal. The police personnel physically tortured the victim in front of his family members and moreover the torture continued upon him whole night on that day.

On 10.8.2012 he was sent to Additional Chief Judicial Magistrate, Lalbagh Court with the other accused persons. His application for bail was rejected and he was sent to judicial custody at Lalbag Sub – Divisional Correctional Home fixing 18.8.2012 for his further production before the court. In the mean time the victim’s wife went to the said Correctional Home but she was informed that the victim was shifted to Beharampur Central Correctional Home. When the victim’s wife went to Beharampur Correctional Home with the help of her relatives she was informed that there was no such person in the victim’s name detained there. The victim’s wife was allowed to search the victim inside the said correctional home but she could not found her husband there. On 18.08.2012 the victim was not produced before the court.

On 19.08.2012 the victim’s family received information that he died at National Medical College & Hospital, Kolkata. On 20.8.2012 the family members of the victim went to the said hospital and received the body of the victim. The disposal certificate of the victim disclosed that the victim was detained at Alipore Central Correctional Home, Kolkata before his admission to the hospital. Beniapukur Police Station registered one unnatural death case vide Beniapukur Police Station Inquest no. 547/2012 dated 20.8.2012. The post mortem examination of the victim was held at the Police Morgue at N.R.S Medical College & Hospital, Kolkata. Though the victim died when he was still under judicial custody at Alipore Central Correctional Home, Alipore, Kolkata but no enquiry by any judicial magistrate was held on the custodial death of the victim in compliance of provisions of Section 176(1-A) of the Criminal Procedure Code. Our fact finding revealed that Mr. Amiya Kumar Lahiri, Assistant Commissioner of Police, ACP-1 of Kolkata Police was entrusted with inquest, which was against the law. The victim’s family did not get the post mortem examination report of the victim till date. On 31.8.2012 the victim’s family lodged written complaint before the Superintendent of Police, Murshidabad for enquiry into the custodial death of the victim but till date there has been no action.