Has Nirbhaya incident changed anything at all?

The Nirbhaya rape in New Delhi changed the way we look at sexual assault.

Published: 09th July 2017 10:51 PM  |   Last Updated: 09th July 2017 11:24 PM   |  A+A-

Clamour for death penalty for Nirbhaya killers

Express News Service

The Nirbhaya rape in New Delhi changed the way we look at sexual assault. The J S Verma Commission and the Indian Council of Medical Research (ICMR) proposed stringent practices to deal with cases of rape and sexual assault.

However, has it changed the way our law enforcement agencies treat rape victims? Not much, according to a qualitative study by the New Delhi-based Partners for Law in Development (PLD). The study found that the victims of such crimes continue to face insensitivity when registering a case or while undergoing a medical examination.

At the behest of the Delhi High Court, the study examined 16 cases of rape that were under trial in six fast track courts (FTCs) in Delhi between February 2014 and March 2015. It analysed case reports, observed trials, and interviewed the victims to find out if the reforms proposed by the Verma Committee and the ICMR and other sensible practices were being implemented.

Here’s what the study found.

1. Process is speedier,  but still prejudiced

 

Although the study found that pre-trial processes like registration of FIR, medical examination of the victim, the arrest of the accused, and court cognizance took place within the prescribed time, the process itself was still tainted by prejudice, and attempt to obstruct the process of justice and violation of procedural norms.

2. Cops take too long to file FIR

Although police have to mandatorily register an FIR as soon as they receive a complaint, that is not always the case. Five of the 16 complainants experienced difficulty in getting their FIRs registered, and one of them was even turned away. In cases where there was a delay, the victim had to wait for at least 12 hours, sometimes overnight, to finish the procedure which is nothing but the first step in the long process to get justice.

3. Cops play agony aunt

If delays add to the trauma of the victim, there are also occasions when the police ‘advise’ the victim not to proceed. Although the Verma Committee prescribed punishments for a police officer “who fails to register a case of rape reported to him,” in two of the 16 cases studied, police attempted to persuade the victim not to file a case. In one case, where the accused was the brother-in-law of the victim, police urged the victim not to file a case as it was a “family” issue and she might be shamed in the neighbourhood. In another case, police refused to file a case. It was only on account of the victim’s persistence and refusal to compromise and after payment of a large sum that police accepted her complaint, the study says.

4. Zero FIRs still not the norm

The Verma Committee suggested that rape victims be allowed to file Zero FIRs, in other words, an FIR that can be filed in any police station irrespective of the victim’s place of residence. The Partners for Law in Development (PLD) report states that in at least two of the 16 cases studied, police refused to comply and urged the victim to approach a police station in her locality. It is important that lodging of the FIR is done as soon as possible so that the victim can be taken for medical examination before the evidence is lost. But the old practice of police station jurisdiction continues.

5. Post-rape medical protocols not followed

Following the 2012 Nirbhaya gang rape, the Indian Council of Medical Research Council (ICMR) laid down a fresh set of protocols to be followed while conducting the medical examination on a rape victim. The PLD study found that although medical examinations were being conducted on time, many of the protocols laid down by the IMRC were not being followed. The study noted that none of the victims were informed about the purpose of the examination.

6. Two-finger test ban ignored

Although the two-finger test was banned in 2013, medical examination often involves examination of the victim’s vagina for infection or injuries. In eight out of 16 cases, the medico-legal certificate (MLC) highlighted tears in the victim’s hymen. In one of the cases, the report went as far as to state that the tears to the victim’s hymen were old although she was unmarried, thereby making explicit remarks about her character and sexual history, the very reason why the two-finger test was banned in the first place.

“To mention old hymen tears along with the fact that she is unmarried invokes the victim’s ‘character’ which is not the purpose of the MLC,” the PLD report noted.

7. No resistance ≠ no rape

The PLD study found that medical examinations of rape victims continue to place faith in resistance injuries as proof of rape. They look for and record resistance injuries and make pointed mention when there aren’t any. The Supreme Court in 2013 ruled that lack of resistance cannot be equated with consent as the victim may be too traumatised to resist the attacker. However, by expressly noting the lack of injuries medical reports may serve to prejudice the trial, the PLD study noted.

8. Public allowed into in-camera hearings

The PLD also pointed out certain flaws in court practices that demonstrate insensitivity in treating a rape victim. In all 16 cases that PLD studied, precautions were taken to ensure that the victim was shielded from the accused by a screen, and the proceedings were conducted in-camera. However, other protocols such as keeping the public out of the courtroom were not always followed. “The deposition of the prosecutrix is routinely conducted in-camera, but occasionally the spirit behind the guideline is overlooked, as members of the public are temporarily allowed access to the courtroom where the deposition takes place,” the PLD report says.

9.  Accused gets too close to victim

Further, although the victim has to be shielded from the accused at all times so as not to generate any anxiety that which might affect her testimony, the structure of the courtroom often fails this requirement. The victim often comes into contact with the accused on the court premises, especially in the waiting area. “The prosecutrix and the accused (or his companions) routinely share the same space in the waiting area, where on more than one occasion discussions on compromises were witnessed,” the PLD report said. 

Even outside the court premises, victims often came into contact with the accused. In four of the 16 cases, the companions or the family of the accused reached out to the victim and threatened her to withdraw the case. In one case, money was offered for withdrawing the case.

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