Trauma on the stand – when do we stop putting rape victims on trial?

Had done this piece for Femina magazine in 2010. Posting it here now because it is still relevant.

It isn’t hard to picture – a raped woman seeks justice but is humiliated and harangued further as her ‘virtue’ is called into question. It sounds like a tacky 1980s Bollywood film plot, doesn’t it? The great tragedy is that if they didn’t get anything else right, in this one respect, filmmakers did stay close to the truth. Despite theoretically sound laws and a string of empowering judgments from the highest courts in the land, a rape trial in India remains a deeply traumatic experience for Indian women and their families. An Indian rape survivor continues to be examined by misinformed doctors. Her past relationships, real or alleged, continue to be dragged into courtrooms. She continues to face threats of further violence.

Unscientific, unusable, unnecessary.

Starting from the moment a rape survivor picks herself up and goes to a hospital, her trauma multiplies if she is made to undergo a ‘finger test’, which is supposed to assess whether the victim is a virgin or ‘habituated to sexual intercourse’.

Describing it as ‘unscientific, inhuman and degrading’, a recent Human Rights Watch report titled ‘Dignity on Trial’ points out that the finger test has no forensic value. It is also legally irrelevant since the Supreme Court has ruled that a woman’s ‘habituation to sexual intercourse’ is immaterial. Yet, earlier this year, the Delhi and Maharashtra governments introduced a new forensic examination template for rape survivors which seek details about ‘hymenal orifice size’.

The report found at least three government hospitals in Mumbai, “including one where more than a thousand rape survivors are examined every year” continue to conduct the test. As if that wasn’t enough, they found that survivors make “grueling trips from one hospital or ward to another, and receive multiple examinations at each stop. Medical workers frequently collect evidence inadequately or insensitively, and it may then be lost, poorly stored, or subject to processing delays, rendering it unusable.”

While the ‘finger test’ is technically irrelevant, it does impact trials. Courts do make comments about the victim’s character. In a 2009 rape case, the Supreme Court made remarks like: “the prosecutrix appears to be a lady used to sexual intercourse and a dissolute lady.”

Veena Gowda, a women’s rights lawyer, points out that law is a subjective field since it manned by people, usually men. “Look at the whole thing of getting a rapist to marry his victim,” she says. “It is a patriarchal society’s way of morally resolving the issue. It still looks at rape as a violation of a woman’s ‘purity’ instead of violence done to her.”

V for Violation, V for Violence

India’s popping economic muscles have not done much to curb violence against women. Between 1990 and 2008, rape statistics showed an increase of 112 percent. According to the National Crime Records Bureau, 21,467 rapes were reported in 2008, but most researchers believe the figures are much higher since most women don’t go the police. Of the limited number of cases where the trial is completed, the conviction rate is only 26%.

Against this constant dissection of her morals, it takes a woman almost super-human courage to trust the judicial system and get the rapists punished. Monica Sakhrani, a criminal lawyer and a teacher, believes that the construction of rape law is slightly problematic since it hinges on a women’s consent. “It puts the woman in the dock. You start looking at who she is, where she comes from. Her relationship with the rapist is questioned. But the man’s behaviour is rarely in the dock unless the victim is a child, or the man is from a lower class.”

Defense lawyers often imply that familiarity with a man automatically translates into consent. Even police statistics say that in 91% of rape cases, the victims knew the accused. Monica illustrates what an impossible situation this creates for women by referring to the infamous Jalgaon case of the 90s. “In 2000, the Bombay High Court acquitted a man in a case where the girl was 17, since she had gone to the man’s house. The assumption is: ‘What do you expect when you go to the man’s house alone?’ So if you can only expect sex, then they assume consent was given.”

The New Guard for a Newer Generation

Despite current problems, Monica doesn’t despair. There have been progressive judgments and the women’s movement had its successes. Since 2005, a woman’s sexual history is no longer admissible in court as evidence in rape cases. A survivor can also hire lawyers to assist the public prosecutor. This is a huge step forward since prosecutors are underpaid, overworked and rarely trained to deal with gender violence. Besides, they might have prejudices about what kind of woman gets raped. A ‘watching advocate’ allows the victim a voice.

Women’s collectives are helping the government draft a new definition of sexual violence. Currently, the assumption is that the worst kind of violence is penetrative. Rape laws are restricted to penile-vaginal penetration. Sections 354 and 509 of the IPC deal with anything ranging from ‘obscene’ singing to fondling of breasts – everything encompassed by ‘outraging a woman’s modesty’.

Aruna Kashyap, who researched and authored ‘Dignity on Trial’, says defining the law in terms of modesty is very problematic for it presumes women are modest. “Ideas of good girl and bad girl need to be challenged. The law should protect women’s rights. You also need doctors, police, prosecutors and judges to be trained to grow aware of these rights.”

Sadly, even minor girls aren’t spared the moral posturing as was shamefully evident after a nine-year-old Russian girl was raped in Goa. The state’s Deputy Director of Tourism, Pamela Mascarenhas went on record to say: “walking on the beaches half-naked is bound to titillate the senses.”

There have also been instances of the finger test being performed on girls as young as six. Maharukh Adenwalla, who has often worked as a watching advocate for minors, says children face court procedures they don’t always understand. Many children don’t yet have the language to explain what happened. She recalls a cases where a 10 year old was raped. “She testified when she was 13. There were three men accused and each had his own lawyer. Each lawyer cross-examined the girl. She was in the witness box for six days and just couldn’t understand why they were making her out to be a liar.”

Truth and Trauma

Any woman would be shattered by the allegation that she is lying about the brutality she suffered, but defense lawyers often badger even children. Anuja Gupta of RAHI, an organisation that works with survivors of child abuse, has heard horror stories about children being made to stand on benches to give testimony, like they were being punished.

The law has little understanding of trauma, according to Anuja. “Victims cannot retell the story in a clear, sequential manner. The story might change. That is the nature of trauma. It doesn’t mean it didn’t happen. But judges aren’t trained to deal with trauma.”

RAHI is part of a collective that sent suggestions for criminal law amendments to the home ministry. The collective wants rape laws to include ‘persons other than women’ so adult men and transgendered people can seek justice too. It also wants the children’s section to be gender-neutral.

In the meantime, a first progressive step forward would be to do away with the finger test. CEHAT (Centre for Enquiry into Health and Allied Themes) has come up with a rape toolkit called SAFE to collect forensic evidence and conduct medical examinations.

Padma Deosthali, a senior researcher at CEHAT, says their chief concern is treatment and evidence collection. “We intervene in rape cases reported in three hospitals in Mumbai. More than 50% cases are of non-penetrative assault. The other issue is that hospitals ask for police intervention. Their primary job is to provide treatment and follow-up care. The victim’s injuries may show up later and are an important part of the evidence.”

Another major gap is our lack of a witness protection regime. Padma says she was horrified while visiting a six year old victim in hospital. “The mother of the accused came into the ward and threatened the victim’s mother, saying ‘if your girl hasn’t been raped yet, we will ensure she is raped later’. In India, most rapists have easy access to victims and parents.”

The law needs to protect and assist people who report violence. Finally, it also needs to address sexual violence within marriage and amongst sex workers. In both instances, consent is taken for granted. But even here, change can be wrought.

Meena Seshu, who works with commercial sex workers through SANGRAM, remembers, “When I began work with the sex workers, even murder was not reported. If they tried to report violence, the police wouldn’t even put it in the diary. They’d take money from both parties and call it a ‘negotiation’. Now sex workers are organised, and violence does get reported.”

Marital rape is almost never reported though. Married women might talk of husbands ‘using force’ or ‘not listening’ but they don’t go to the police.

It might take years before India finds a way of investigating marital rape. For now, Veerappa Moily must answer the activists who wrote to him saying: “Change in the structure of humiliation which typifies rape trials is not possible unless medical jurisprudence textbooks and procedures are changed.”

Indeed, Mr Law Minister. If you cannot prevent rape, stop the public humiliation of women and children. You owe the nation that much.

BOX:

Things to remember about rape law and investigative procedures:

- Courts have held the finger test ‘obsolete’ and ‘violative’ of your fundamental rights.

- Victim’s sexual history is inadmissible as evidence.

- Women cannot be taken into custody after sunset and before sunrise.

- When women are arrested or interrogated, a policewoman must be present.

- There are legal precedents allowing a delay in reporting the crime.

- In cases of statutory rape, there are legal precedents for hearings in a judge’s chamber, or for a screen to be placed between the victim and the accused.

- If a child is involved, the law has provisions for the defense lawyer to put questions through the judge, who will address the victim in a non-threatening way.

- A rape survivor can hire her own lawyer to assist the prosecution