Human Rights and Victims of Sexual Abuse


Author

Rishita Ghosh|Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur

Introduction

India is stallworth and mighty in the global panorama for our culture, value systems, colourful ceremonies, but sadly, also for our apathy and rising cases of sexual abuse on women and children. The draconian term of “rape” is sadly still resonating in every part of the country which has deteriorated to such an extent that our national capital, “Delhi” is now recognised as the “Rape capital”. This coined term is becoming appropriate day by day with a recent event of brutal rape and torture of a 12 year old girl in Delhi[1]. The blame game of public and the government receives major media attention but the brutal negligence and cruel acts of societal ignorance and denial of medical treatment to the victims sadly garners no attention which leads us to the biggest question, Are these victims mere numbers or do they deserve the compassion and support of the society at large? We can criticise a lot regarding the lack of government enforcement but isn’t the actual apathy of the society provides an impetus to such heinous crimes and therefore it is important to take a hard glance at the human rights and how it is completely neglected for a victim of sexual abuse.

Treatment towards victims of Sexual Abuse

We are not unknown to the social stigma associated with a victim of sexual abuse with the constant victim blaming, social boycott and the worst of all character assassination of the victim which makes it worse for any human to survive let alone thrive and come out of the trauma. The society and its extremely vicious nature forces the victim to relive the heinous encounter day in and day out which violates the basic principles of Human Rights[2] enshrined under Article-3 of the Universal Declaration of Human Rights (UDHR) and the Constitutional Right of “Right to Life” under Article-21[3] of the Indian Constitution.

The societal negligence and victim blaming nature encourages the perpetrators to continue such acts and no amount of legal or judicial amendments can prevent it unless the people are more compassionate and understanding towards the pain of the victim rather than blaming the victim.

There have been many incidents where the police or the hospital authorities have refused to cooperate with the victim which led to less reporting of the crime, provided an encouragement to the perpetrators that they can just get away with the act and instilled fear among the victims for the rest of their lives. This attitude of police and hospital authorities creates lasting scars on the mental and physical health of the victims as in most of the cases, the victims are children who cannot even grasp the extent of damage being done to them.[4]

Legal measures to aid a victim of sexual abuse

Indian legislature and judiciary have taken tremendous steps in actually addressing the issue of victim blaming by incorporating many amendments in the law especially after the 2013 “Nirbhaya”[5] rape case. India now has several laws to address gender-based violence such as the Criminal Law (Amendment) Act, 2013 which introduced Stalking, Voyerism and amendment in the definition of Rape provided an impetus to criminalise any act of violation of Human Rights of a woman[6].

There have been major amendments in the Protection of Children from Sexual Offences Act which introduced Section-42A which gave this Act an overriding effect over other legislations securing and empowering the victims who are children[7], and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act if the victim belongs to a Dalit (formerly “untouchable”) or tribal community to be given preference to the crime committed against the victim rather than the caste[8]. Between the time the legal changes went to effect and till the end of 2015 (the most recent year for which data is available), there was a 39 percent increase in the number of rape complaints reported to the police—from 24,923 cases in 2012 to 34,651 cases in 2015—likely reflecting a greater willingness of survivors to take their cases to the justice system.[9] Further amendments have also been made in the Juvenile Justice Act,2015[10], which decreased the age limit to try a person on charges of rape from 18 years to 16 years, which still aids in trial of many assaulters who have not yet turned legally major.

Though these changes point in the right direction, there is still a long way to go as there are many practical glitches in the implementation of such laws. The authorities are unwilling to cooperate, the victim and their family members are afraid to report the case fearing their safety and reputation in the society and also in most of the cases as the recent trend shows, the victim is raped and subsequently murdered which delays the reporting, nabbing and the trial process because the authorities have to rely only on circumstantial evidence to prove the incident and also the victim gets no justice as they are already dead.

Shortcomings in justice delivery mechanism

The “Nirbhaya” rape case pointed out the glaring difficulties of the elaborate procedure enshrined in the Criminal Procedure Code, 1973[11] and post this case, elaborate judicial and legislative amendments have been incorporated. The establishment of Fast Track Courts[12] have reduced the trial proceedings in such matters of sexual abuse to three months but its still a long way to go, as collection of evidence and docketing it correctly consumes a considerable amount of time.

Furthermore, due to the proper implementation of laws and the lengthy court procedures, it has become a trend for the police to completely do away with the due process of law and they have resorted to the arbitrary practice of encounter or custodial death of the alleged accused as evident in the 2019 “Hyderabad rape case” of a veterinary doctor[13].

The ignorance of the judicial process may be a downfall for the justice system because there is no proper mechanism to determine whether the accused killed in the encounter were actually the perpetrators or not.

The Criminal Law (Amendment) Act of 2013 expanded the definition of sexual offenses to include new offenses such as voyeurism and stalking. However, a 2014 study by the Commonwealth Human Rights Initiative in Delhi and Mumbai suggests that these offenses are underreported to the police, and even where reported, the police often fail to register FIRs or properly investigate these crimes[14].

Therefore, a speedy process of judicial measure is required to restore the faith of the victim in the justice delivery system. Moreover, a stern attitude of the judiciary will also act as a deterrence to the perpetrators from committing such heinous crimes.

Suggestions for improvement

Though many amendments have been made there is still a long way to go to prevent incidents of sexual abuse in India and it is not just the responsibility of the government or the judiciary but the public as well and few of the suggestions to move forward in that direction are:-

  • Incorporate mandatory self defence classes in schools, colleges as well as offices to make women and children strong and resilient.
  • Stricter implementation of existing laws by the police and hospital authorities and stricter punishment for such personnels in event of defiance to provide safety and security of marginalised sections of society.
  • Create more women centric roles and redefine the roles as gender neutral and create a balance in the society.
  • Regular awareness campaigns must be conducted and judiciary must speed up the procedure and faster trials on the accused to set an example in the society.
  • Inherent mindset of the society has to be changed that men are more powerful than women by removing the demarcation between official posts and roles.
  • Patrolling mechanisms must be improved so that women and children feel safer and the perpetrators are deterred from committing such offences.
  • Create more job opportunities for victims of sexual abuse to make them self reliant and thereby reduce the drop out rates in schools, colleges and organizations.
  • A safe and healthy public forum must be established for these victims so that they can gain back their lost confidence and their experience can help many people in the society to be cautious and careful and may lead to early detection of such psychopathic behaviour of the perpetrators.

Conclusion

All this being said, no matter of lawmaking and judicial intervention will be able to resolve the inherent bias in the society unless the society changes its mindset at a grassroot level. The people in power must also give a sympathetic and understanding view towards the victims because it is not their fault. There are no words or mechanisms that can restore the violations that have been felt by a sexual abuse survivor, but it is our moral responsibility to provide a safe environment to help these victims deal with the trauma and attempt to live a fulfilling life. It is not just the responsibility of the police, lawmakers and the judiciary to give justice to the victim, but also of every man and woman in the society to help these survivors and rather than calling them victims of a violent crime, address these brave souls as “survivors of a human rights violation”.


[1] https://timesofindia.indiatimes.com/city/delhi/12-year-old-raped-left-to-die-at-residence-no-arrests-made-yet/articleshow/77380808.cms

[2] https://www.un.org/en/universal-declaration-human-rights/

[3] https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021#:~:text=Constitution%20of%20India&text=Protection%20of%20life%20and%20personal%20liberty.&text=No%20person%20shall%20be%20deprived,to%20procedure%20established%20by%20law.

[4] https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors

[5] https://www.bbc.com/news/world-asia-india-51969961

[6] https://www.iitk.ac.in/wc/data/TheCriminalLaw.pdf

[7] http://www.aphrdi.ap.gov.in/documents/Trainings@APHRDI/2019/April_4/Prevention%20of%20Sexual%20Harassment/POCSO%202019.pdf

[8] https://www.thehindu.com/news/national/supreme-court-upholds-constitutional-validity-of-scst-amendment-act-2018/article30780857.ece

[9] https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors

[10] http://cara.nic.in/PDF/JJ%20act%202015.pdf

[11] https://www.indiacode.nic.in/bitstream/123456789/1611/1/A1974-02.pdf

[12] https://doj.gov.in/sites/default/files/Fast%20Track%20Special%20Courts%20Scheme%20guidelines%202019_0.pdf

[13] https://www.thehindu.com/news/national/telangana/rape-rage-and-an-exchange-of-fire/article30300278.ece

[14] https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors

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