Of voices & the victim

The rage on the streets, the candlelight vigils and marches that have become a common sight after the Delhi gang rape incident, are evidence of our frustration with the system that has repeatedly failed its citizens. But this systemic failure neither occurred overnight, nor can be speedily remedied.

Activists in Agartala take part in a candlelight vigil on December 30, 2012, seeking justice for the Delhi gang rape victim who succumbed to her injuries in a Singapore hospital. Pic/AFP

As a civil society, we must therefore trade in our rage to work for a system that delivers justice, deters criminals, and sets high standards for politicos, prosecutors, law enforcement officials and the judiciary. Besides, we must address the root of the problem and eradicate the very ethos that fosters disrespect for women.

Rustam Mulla, co-founding partner, Desai Desai Carrimjee & Mulla, Advocates, Solicitors and Notary (Mumbai)
At the risk of epitomizing a cliché; the primary malaise lies in the attitude of the people and the national disease of indifference. Until personally affected (directly or indirectly), the attitude of, ‘kisko beech mein padna hai', prevails. Perhaps justifiably this is not completely out of sync with reality; a non- cooperative police force, defense counsel who manipulate the trial (with dilatory tactics), an over-burdened judiciary and scant conviction.

Mumbaikars protesting the lack of safety for women, gather outside the residence of Sushilkumar Shinde in Bandra and demand his resignation from the post of Minister of Home Affairs on December 29, 2012. Pic/Rane Ashish

Whilst we are very quick to change the names of cities/roads/bridges so as to obliterate every shadow of our colonial past, we are equally hesitant and slow in amending archaic legislation for e.g. Section 110 of the Bombay Police Act (the moral policing harbinger) or to bring in judicial reforms; this accentuates the problem of corruption and on the other hand denies expeditious and more importantly effective conviction. Much of our criminal jurisprudence is antiquated and has not transmuted to deal with crimes and perversions of present day society.

Harsh(est) punishment is the burning need of the hour, and I endorse capital punishment and castration, especially where the victim is a minor and the act heinous; but much before that, what is required is effective and expeditious conviction. Perhaps the time has come to seriously simplify and rationalize the rules and degree of evidence relating to rape crimes.

Analogous to the concept of statutory rape, (where sex with a minor even with consent has no defence), and the principle in tort of ‘res ipsa loquitur' (the act speaks for itself), there is likewise a critical necessity to incorporate similar principles in the rules of evidence for rape crimes. Once a victim files a complaint - but not incognito - and it is medically verified that the victim was abused, the trial process should be so framed, that the burden of proof shifts and falls entirely on the accused. The burden to prove innocence must be unequivocally discharged by the accused in a time bound trial, (for e.g. 60 days, with no adjournments permitted) failing which the accused is pronounced to be guilty with conviction to follow.

Needless to state if this were implemented, any inaction et cetera by the investigating agencies, (filing of charge sheet etc.) becomes academic; the victim can approach the judiciary, (preferably special courts), armed only with a copy of the complaint and a medical certification. Whilst this may appear radical and will no doubt rile our ‘human rights' brethren - so be it. For rape crimes, the lofty principle of ‘let 99 guilty walk free but let not one innocent be convicted' has to be revisited holistically. The truth be told, too many guilty are walking free. Special problems call for special remedies; presently the system lacks such special remedies in abundance.

Priya Dutt Roncon, MP
It's not enough to turn this young girl who was so brutally raped and killed into a symbol of what women here go through. We must examine the problem holistically and find logical, practical solutions because changing the laws alone will not be enough. Implementation of the law, fast-track courts and higher conviction rates will, of course, serve as deterrents, but mindsets need to change too.

Priya Dutt Roncon

While news networks can reach out to the educated urban populace, how and when will our message percolate into the rural areas? Authorities may deny it, and the law forbids it, but yes, women are still made to marry by the age of 16 or 17 in those parts. And when we talk about the abuse of women and little children, too often the perpetrator is a family member.

Sex education at the school level is therefore the need of the hour. Politicians mocked my suggestion to introduce this, saying children shouldn't be taught about sex, but shouldn't a child know enough to distinguish between "good touch" and "bad touch"? At a camp we conducted with municipal school kids in Mumbai, we found most don't.

Parents are inhibited when it comes to discussing this subject and without any information available to them children are confused - they're struggling to understand the changes in their own body. So many don't know what abuse is, what incest is; they don't know right from wrong. There's also an urgent need to educate children - let's start right there - about the importance of a woman in society, to teach them that that she's not just an object. Learn to respect her as a person, with her own set of hopes and dreams.

And then there's a need to recognise society's transformation over the last half century. Our laws are outdated and incapable of addressing the issues that come with this. We were supposed to have a woman's cell in each station, but we do not - we need to look into that. Community involvement also must be encouraged - it's the only way to nip this problem in the bud.

Sex workers and gay community members organised a silent march against rising incidents of rape and sexual harassment against women at Juhu-Chowpatty on December 27, 2012. Pic/Nimesh Dave

We also need special teams in place to investigate crimes against women. From the very moment a woman files a complaint right through the entire process of examination, interrogation and investigation, the special team should be in charge. Typically, as it stands, a rape victim is interrogated by a male police officer and then examined by a male doctor (with the absurd 2-finger-test), without even a psychologist present.

She has just been violated and then must relive the whole trauma. It's no wonder so many women hesitate to even lodge a complaint. This must change. And, rape must be made a non- bailable offense, especially where minors are concerned, punishment for the crime being harsh enough to deter future criminals and ensure that those convicted will be dealt with in such a manner that they will no longer pose a threat to society.

Riva Pocha and C Samyukta, FACTS (Forensic Advice Consultancy & Training Services)
RP: When it comes to DNA evidence, firstly, there is a lack of understanding and even a desire to understand it. Often perpetrators of such crimes escape because the evidence has either not been collected properly or else it has been stored incorrectly, so its reliability then becomes questionable. It's also important to ask the right questions and without an understanding of how forensics works, no one in the judiciary knows enough to ask the right questions. It would be worthwhile in cases such as these for the judiciary to invest in forensic translators.

In rape cases, there are two types of samples that are collected - samples taken directly off the victim by doctors/medical experts and samples collected from the crime scene which may include clothing of the accused and/or the victim, objects involved in the crime such as assault weapons. How it works right now is that a junior collector is sent over to a crime scene to collect samples which are then moved to a storage facility and eventually sent to a laboratory, typically after four or five days, during which time the samples have been stored incorrectly and typically at wrong temperatures.

The lab then receives damaged samples which are often questionable to begin with. Quality assurance checks and audit of labs that undertake such forensic work are necessary to ensure accountability of the experts. Police officers responsible for the handling of evidence must receive at least a basic training about what samples to collect and how. Finally, we need access to databases. A DNA bill was drafted in Parliament years ago, but there has been no progress on that front. Currently, we don't have a database available to us so when we collect samples, we have no means to compare these with a population statistic.

CS: We're very far back as far as investigation techniques are concerned because the police lack both, the know-how and the kits required for the effective collection of forensic evidence. On a positive note, in some recent cases the police have been taking forensic scientists along to collect evidence and we hope this becomes the norm. In the case of the victim who succumbed in Singapore recently, I don't believe the police could have done anything more than they did but what really kills a rape case is that victims don't go directly to the police.

A woman would have attempted to fight off her assailants, so she would have sustained kicks and bruises which means she has seminal samples on her person. This is evidence we need to collect and for the sake of ensuring no doubts are raised as to the validity of the samples, we need the police and the official doctor to do the collecting. But clearly what we also need is a tremendous drive to sensitise the police force, to create a task force that can perhaps specially address rape cases (and do so immediately). Also, it's important to understand that women would typically never discuss things like these with men; they would likely be more willing to communicate with women officers.

Dr Nivedita Rawal, Behavioural and Psychological Therapist, Founder-Ultra Health Consultancy
A citizenry frustrated by crime, understandably, wants to lock up the accused and throw away the key. But there is no quick fix and this issue needs addressing at many levels. As much as our system is to blame, so is the community that does not step in to help. You'll have a crowd of 30 people watching a woman being harassed, and no one will come forward to help.

Firstly we must address gender inequalities. The girl child isn't treated the same way as the male child, so, naturally, the male child feels more privileged and learns that he can dominate the female child. The mother is the primary caregiver and influencer in the family, so she must understand her son will learn to respect women when the concept of equal opportunity is endorsed at home. Male children must be taught to be respectful, and to engender a collaborative approach in life. Let your sons see that a girl's voice counts equally.

If the mother reprimands him, that must count. Our sons also need to be taught that a woman is not a sexual object. People blame what kids see on television and films, but that only causes a problem when parents do not discuss the subject and instead allow their children to pick up whatever information they can from whatever sources are available to them. If a mother talks to her son about sexuality, then he'll know how to digest an item number when he sees one.

Rape is a serious crime and the legal repercussions must reflect that. The punishment must be stern enough for people to think twice and yes, we should consider meting out the death penalty in such cases. When a victim is raped, in many countries, it's mandatory to have a counsellor with trauma-counselling experience present when the victim is questioned. There must be a specialist present who knows how to conduct these interrogations alongside law enforcement officers.

In the concluding part of our series tomorrow, cops PS Pasricha and Himanshu Roy present the police's point of view