Gender Violence:The Health Impact – Role of Forensic Evidence in Accessing Justice

by Sheila Jayaprakash

Forensic evidence is a specialised branch of medical jurisprudence wherein material is collected and collated in order to form a body of evidence from which scientifically based deductions may be made. Forensic evidence can be very important in a criminal investigation, and has an impact on the entire criminal justice delivery system. An investigation by the police is aided by the report of forensic experts. These findings are then used by the prosecution or defence lawyers in presenting their case and could be one of the grounds on which the judge acquits or convicts the accused. This brings in the laboratory analyst or scientist as a crucial link into the dispensation of criminal justice. Forensic scientists work closely with the police in gathering material or in the analysis of material sent to their laboratories. Forensic laboratories have been largely set up and run by the government and such laboratories by default become another link in the chain of law enforcement.

Forensic evidence may be used in the analysis of fingerprints or handwriting to identify persons. DNA testing by laboratories has been used to confirm the identity of a deceased victim or parentage in civil cases or to identify perpetrators of homicide, rape or other criminal offences. Autopsies use forensic science to deduce the cause of death and the analysis of toxic substances found in the body of the victim. Forensic experts are also called in for cases involving drugs or the use of firearms. Thus, forensic reports could be the basis of physical evidence in a criminal or civil case; forensic evidence could also be used to form a database outside the criminal system in substantiating statistical deductions.

Forensic evidence has been important in obtaining convictions in rape cases. The identity of the accused has in several cases been based on semen analysis found in or on the clothing of the victim. The collection of this piece of evidence has to be done at the earliest point of time. When a rape complaint is filed with the police, they should immediately take the victim to the nearest hospital. Women’s rights activists have for a long time called for ‘standardised kits for collection of evidence of rape’, with detailed directions for the method of use. Samples collected by the doctor, such as vaginal swabs, are then sent to a laboratory for analysis. This could result in crucial evidence that ultimately leads to a conviction.

The importance of forensic evidence in the justice system places great emphasis on the existence of proper laboratories. They must have well-qualified staff, not only for analysis and reports, but also to give evidence in a court of law when necessary. Moreover, the laboratories must prevent loss or contamination of samples. All law-enforcing agencies must have easy access to such laboratories, while the reporting of forensic evidence must be standardised – the accuracy of such reports has to be maintained because of their evidentiary value. The number of laboratories that offer such services is little, and with the need for more forensic laboratories, private laboratories have begun offering these services.

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Sheila Jayapraksash is a prominent Chennai based advocate who is an active women’s lawyer who never minces her
words when it comes to voicing issues of crimes against women. A veteran in her field, she started her career by launching a writ petition on behalf of sex workers in Mumbai. Even as a busy Madras High Court prosecutor, she is one of Chennai’s leading women’s rights activists.

Unspeakable Inequalities: Debarred from Full Citizenship

by Amba Salelkar

I am, by no means, an expert in disability rights and policy, though this is my area of work. The experiences of persons with disabilities have been much better documented by my peers who have decades of experience in the field. That said, my previous avatar as a criminal trial lawyer exposed me to a subject which concerns persons with disabilities greatly – the use of violence, and the threat of violence.

Violence is of many kinds, and in this blogpost I hope to point out some of the challenges which are faced when it comes to women with disabilities.

I’ll start with sexual assault, because it is the most topical. It was hard to have our voices heard during the Justice Verma recommendations and the surrounding outrage on rape and sexual assault. I believe that this was because the sexual assault of women with disabilities falls so far away from the popular cultural notions of rape – conventionally attractive, delicate victims who are made the victims of lust by savage rapists, lurking on the fringes of society. While the media seems appalled with violence against women, the fact is that the most “talked about” cases fall within this stereotype – stranger rape – which makes for only a small percentage of the actual rapes that are at least reported in this Country. Women with disabilities don’t have to worry about dressing provocatively, going out late at night, or their own economic empowerment being the reasons for their being targeted – these are relative luxuries, and often impossibilities for them. Most public service announcements and campaigns don’t concern them, even though it is estimated that 8 out of 10 women with disabilities will undergo sexual assault in their lifetime.

So where does this assault and abuse take place? Let’s start with the home, where women with disabilities, disempowered from the start, are left at the mercy of caregivers, family members, neighbours with easy access to the house. The level of dependency is such that they could be very well be subject to abuse from the one person that they depend on to make that call to the Police Station. Or by the one person who should be obligated to teach them the difference between a “good touch” and a “bad touch”. Some of these women are institutionalized from a very young age, in places with no monitoring mechanisms, and where gruesomeness comes to light often when it is too late.

I want to, however, make one thing clear here: women with disabilities have as much right to a happy and fulfilling sexual relationship as any other person, and calls for treating sexual contact with a person with disability as “statutory rape” are nonsensical. The problem here is awareness and access to justice, and denying legal capacity in this manner is not solving any problems whatsoever.

Closely tied to sexual violence is the violence committed upon women with disability and reproductive rights. Women with disabilities, particularly women in institutions, are routinely given hysterectomies on the grounds of hygiene – that they are unable to manage menstruation and hence they should be relieved of this monthly occurrence “for their own good”. Some Governments also upheld this view. Besides the blatant falsehood that backs such a view, it also leaves women with disabilities at higher risk for sexual assault, because sadly enough, the only way in which such instances ever actually come to light was when inmates of institutions become pregnant.

Institutions for women with disabilities are rife with instances of abuse beyond what has been described above – the process begins as an act of abuse, where women with psychosocial/intellectual disabilities are abandoned by family members, or run away on account of abuse. Obviously, because such information is inaccessible to them, they have no idea on what to do. On the streets, abusers further victimize these women, and it is not uncommon for women to be found by NGO workers with clear signs of having been abused. Since community based rehabilitation is not an option in most cities, women with disabilities are remanded to institutions, even against their will, from which they can never leave, because provisions of the Mental Health Act in India have resulted in the position that a person with psychosocial disability can only be released from a Mental Health Institution after someone comes forth willing to stand surety. The other option is that an inmate applies from within the institution for release upon recovery – however this is an option which is seldom exercised, mainly on account of a lack of access to justice for women in institutions. Institutionalization is perhaps better regulated under the Mental Health Act than say the Beggary Acts which allow for indefinite incarceration of “incurably helpless” beggars – mostly persons with disabilities.

Let’s not forget the abuse and violence that happens on account of legitimate medical treatment of women with disabilities – particularly women with psychosocial disabilities. This includes unmodified ECT, psychosurgery and even sterilization as a method of treatment – all administered against the will and without the consent of the patient, and perfectly legal under present Indian Law0.

For women with disabilities who are not institutionalized, there are more silent forms of abuse which happen, behind closed doors, for which Indian Law is ambiguous. This may include deprivation of medication or food and other basic necessities. The victim can take theoretically take recourse to the Domestic Violence Law, though the definition of “domestic violence” does not consider the needs and vulnerabilities of women with disabilities. Time and again, however, it has been the experience that caregivers of persons with disabilities have more sympathy in such accusations, and that derogatory treatment may not be taken seriously by a judiciary which may not be able to empathize fully with the disabled.

What is also dangerous however, is the violence which can be inflicted on women with disabilities that is entirely State sanctioned – by enforcing guardianship under the National Trusts Act and the Mental Health Act, the State is promoting “civil death”, a term propagated by the Mental Disability Advocacy Centre, and to which I am inclined to agree. Women with psychosocial disabilities, developmental and intellectual disabilities are at serious risk of losing their right to property and independent control of financial resources merely on account of their disability. Right now, for example, the Reserve Bank of India insists that a bank account being opened by persons who fall under the National Trusts Act – persons with cerebral palsy, autism, intellectual disabilities and multiple disabilities – must be done so with a guardian. Without financial independence and control over assets, women with disabilities are at extreme risk of violence and neglect at the hands of family members and caregivers.

How do we solve these issues? As I stated in the beginning, the major concern is that of a lack of information to women and girls with disabilities. For girls who manage to get to schools, proper information on what violence is, what sexual assault is, and how to seek redressal and make complaints must be given in an age appropriate and accessible manner. As for girls and women who remain at home, a great deal of assistance can be got from compulsory registration of disabilities by local governments. Women and girls with disabilities can be reached out to, and given adequate information, and in the event that they can make a complaint to the officer administering the information, adequate protection can be given.

Legal reform is very important. We need to move to an empowerment model, as envisaged by the United Nations Convention on the Rights of Persons with Disabilities and bring our legislation up to International Standards. This includes removal of all impediments to exercise of legal capacity and promotion of assisted decision making instead of guardianship. The Special Rapporteur has held, time and again, that. Involuntary institutionalization is violative of the UNCRPD, yet it persists in our draft Mental Health Care Bill. Mental health care professionals, guided by the WHO frame of reference, have been gatekeepers of persons with psychosocial disabilities, and have set irreconcilable inequality between these and other health care patients; worse, continuing methods of ‘treatment’ which the United Nations Special Rapporteur on Torture and other Cruel Inhuman and Degrading Punishment has termed as “torture” (note: India hasn’t ratified the Torture Convention, but that’s a story for another blogpost).

Thirdly, accessibility is an absolute necessity to empowerment. I’m not just talking about accessible complaint making mechanisms and judicial processes. That is a given. I also mean accessible roads, transport systems, offices, schools, appliances and equipment made in line with universal design – all of this plays an important role in empowering women with disabilities, and helping them be self reliant and more importantly, lead a dignified life, because ultimately, it is these barriers that make a person disabled. To quote this brilliant write up, “…physical and social barriers that create disability are as fundamental as the structural disadvantages that have made (and continue to make) women second-class citizens.”

It seems like a lot of work ahead, but voices from around the world are claiming the same thing. Ratification of Conventions is easy – it’s making them into a reality that is the challenge and is something that we all have to make sure the Indian Government does. I am hopeful, and here I will quote my late colleague Rahul Cherian, (who apparently still manages to get the last word on everything I do).

“When people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want.” 

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Amba Salelkar works for the Inclusive Planet Centre for Disability Law and Policy started by lawyer Rahul Cherian, as a social network platform for people with disabilities. The group looks at upcoming legislation from the perspective of the disabled and presses for inclusive measures. A graduate of the National Law School of India University, Bangalore, Salelkar is a lawyer with 6 years of experience in litigation. She has presented research papers both nationally and internationally, and has also been teaching and writing in her spare time. Her area of expertise includes Criminal Law, Family Law, Constitutional and Media Law.

The Case for Criminalising Marital Rape

Last month, the Indian Government passed the Criminal Law (Amendment) Act, 2013, as a response to the brutal rape and murder of a young woman in December 2012 and the nation-wide protests triggered by this tragic event. Based on the recommendations of the well-received Justice Verma Committee report, the final amendments adopted by the government have been immensely disappointing, presenting a heavily diluted version of the Justice Verma recommendations, and have attracted domestic and international criticism for squandering the opportunity to make landmark changes to gender violence laws in India. Of the new legislation’s many shortcomings, one of the most troubling is the retention of an exception to Section 375 of the Indian Penal Code, which states: ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

What does this statement imply? That a man is incapable of raping his own wife? That non-consensual sex cannot exist in a marriage? Or perhaps it is symptomatic of something much more sinister, which lies at the core of our patriarchal society: the pervasive belief that marriage precludes a woman’s right to consent, stripping her completely of any sexual agency. As the Justice Verma report notes, denying married women their right to consent reduces them to ‘no more than the property of their husbands’. This subjugation of the Indian Wife is conveniently presented in the sanitised guise of ‘protecting the family’, an argument that was repeatedly cited by our elected officials in the parliamentary debates that preceded the passage of the new act. The Parliamentary Standing Committee on Home Affairs that reviewed the Justice Verma recommendations similarly asserted that criminalising marital rape would be nothing less than an ‘injustice’, destroying the very institution of marriage.

Is it really possible our lawmakers do not realise that an abusive marriage is already broken? That protecting the idea of the traditional Indian family is not worth condemning countless women to violence, indignity and shame? Any victim of rape, whether she is single or married, and whether her rapist is a stranger, or her next-door neighbour, or her uncle, or her own husband, has to cope with intense emotional trauma; how can the law then be so discriminatory? When access to good medical and psychological care is already problematic for recognised victims of sexual assault in India, what recourse is available for marital rape survivors?

The other mystifying part of the exception to Section 375 is the assertion that a man can be charged with rape if his wife is under fifteen years of age. To place this in context, the minimum legal age for a woman to marry in India is 18, and the minimum age of consent is also 18 (having been raised by the new legislation from 16, which was primarily done to discourage premarital sex). Taken together, this means that a girl between the ages of 15 and 18 can be legally raped by her husband (in spite of such marriages being illegal, a recent study found that 47% of women in India between the ages of 20 to 24 were married before they turned 18), even though an unmarried girl of the same age has been declared by the law as being incapable of consenting to sex! This implies that the ability to consent is considered irrelevant once a woman is married, for a married woman is assumed to have no right to consent. Somehow, the deep injustice of denying someone her right over her own body continues to be ignored.

While there are some legal options available to a woman in a sexually abusive marriage, they are far from adequate. The Protection of Women from Domestic Violence Act, 2005, while addressing all possible forms of violence in a marriage, including sexual abuse, is only a civil law, aimed at providing relief and compensation to victims of domestic violence, not bringing perpetrators to justice. The only option for filing a criminal case is through Section 498A of the IPC, which broadly addresses marital ‘cruelty’, defined as causing ‘grave injury or danger to life, limb or health (whether mental or physical)’. However, unless sexual assault is accompanied by severe physical injuries or psychological illness, prosecuting marital rape under this legislation is unlikely to be successful. Moreover, Section 498A, which also addresses dowry harassment, has become increasingly controversial, due to allegations of ‘false’ claims; a cursory search online brings up several websites advising the ‘real’ victims, namely husbands and their families, on how to escape the supposed machinations of their ‘wily’ wives. Thus, without the criminalisation of marital rape, women being sexually abused by their husbands have little hope of securing justice.

Some who support the government’s decision to include the marital rape exception in Section 375 argue that proving marital rape would be impossible, making any legislation pointless; after all, they say, a man is expected to have sex with his wife, it would be her word against his on whether it was consensual. Arguments such as this are indicative of a broader misconception: that rapists are always strangers and ‘true’ rape victims would have been virgins at the time of their assault, which is why doctors continue to use outrageous methods such as the ‘two-finger test’ to determine if a rape has occurred, and courts continue to insist on presenting this as evidence. If every hospital were provided with standardised rape kits, which would allow for a more thorough and sophisticated examination, then the challenge of proving sexual abuse, particularly for victims who have suffered long-term trauma (as is often the case with marital rape victims), would be diminished considerably. As part of the new legislation, the Indian Evidence Act was amended to state that a victim’s character or ‘previous sexual experience with any person’ would not be considered relevant in a rape trial. It is hoped that this, along with a recent Supreme Court judgment that called for the end of primitive and degrading ‘virginity tests’ as evidence of rape, will sound the death knell for these humiliating, outdated and ineffective procedures.

Moreover, sexual assault, particularly over a sustained period of time, is often accompanied by other telling signs of abuse. According to the most recent National Family Health Survey (NFHS-3), commissioned by the Ministry of Health and Family Welfare in 2005-06, women who have experienced sexual violence by their husbands also face a very high risk of both physical and emotional violence. In such cases, prosecuting the perpetrator for marital rape would not be an insurmountable task. Most importantly, even if a case may be difficult to prove, that is not reason enough to avoid criminalising such a heinous offence, and no woman should be denied due process.

Finally, to those who argue that criminalising marital rape will result in a multitude of ‘false’ cases, as detractors of Section 498A claim: for a victim of sexual assault, the ordeal does not end when she files a complaint against her abuser; her own feelings of shame, guilt and lack of self-worth, and the agony of being physically and emotionally violated are not all she must contend with. From the moment she speaks out, she is subjected to doubt, stigmatisation and even ostracism; at every stage, her motives, credibility and morality are questioned, and she is often forced to undergo a degree of scrutiny that even her abuser does not face. For a woman who is raped by her own husband, the shame is only compounded; the scrutiny only increased. She must face accusations of bringing dishonour to her family, stuck with labels that will follow her throughout her life (‘ungrateful’, ‘frigid’, ‘bad mother’). This climate of hostility towards actual victims is surely enough to dissuade most women from wrongfully accusing their spouses.

The NFHS-3 survey found that nearly one in ten married women in India have been victims of sexual violence by their husbands. Many of these women will choose to keep quiet about their abuse, even if marital rape is criminalised; but by removing the exception to Section 375, these women, at the least, will know that should they find the courage to speak out, they will be ensured some degree of institutional support; and crucially, the choice to speak out will be theirs. It is devastating that instead of giving them this choice, the law has forced them into silence.

References:

1. Aarti Dhar, ‘”Rape law changes welcome, yet an opportunity lost”‘, The Hindu, 2 May 2013, http://www.thehindu.com/news/national/rape-law-changes-welcome-yet-an-opportunity-lost/article4674324.ece.

2. Anahita Mukherji, ‘47% of young Indian women marry before 18’, The Times of India, 10 May 2011, http://articles.timesofindia.indiatimes.com/2011-05-10/india/29527428_1_child-marriage-ssa-icds.

3. ‘Delhi gang-rape victim dies in hospital in Singapore’, BBC News, 29 December 2012, http://www.bbc.co.uk/news/world-asia-india-20860569.

4. ‘Frequently Asked Questions on the Protection of Women from Domestic Violence Act 2005’, Lawyers Collective Women’s Rights Initiative, http://www.lawyerscollective.org/files/FAQonProtectionOfWomen1.pdf.

5. Justice J.S. Verma, Justice Leila Seth and Gopal Subramanium, ‘Report of the Committee on Amendments to Criminal Law’, 23 January 2013, http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf, pp 113-118.

6. Kanu Sarda, ‘Degrading 2-finger test must end: Supreme Court’, Daily News and Analysis, 23 April 2013, http://www.dnaindia.com/india/1825887/report-dna-exclusive-degrading-2-finger-test-must-end-supreme-court.

7. Nilanjana S. Roy,’Our bodies, our selves’, The Hindu, 8 March 2013, http://www.thehindu.com/opinion/lead/our-bodies-our-selves/article4485350.ece.

8. ‘One Hundred and Sixty-Seventh Report on the  Criminal Law (Amendment) Bill, 2012’, Department-Related Parliamentary Standing Committee on Home Affairs, March 2013, http://www.prsindia.org/uploads/media/Criminal%20Law/SCR%20Criminal%20Law%20Bill.pdf, p 47.

9. Piyashree Dasgupta, ‘Live: Lok Sabha passes anti-rape bill, RS votes tomorrow’, Firstpost, 19 March 2013, http://www.firstpost.com/india/live-lok-sabha-passes-criminal-law-amendment-bill-2013-666443.html.

10. Sunita Kishor and Kamla Gupta, ‘National Family Health Survey (NFHS-3) India, 2005-06: Gender Equality and Women’s Empowerment in India’, August 2009, http://www.rchiips.org/nfhs/a_subject_report_gender_for_website.pdf, pp 95-109.

11. ‘The Criminal Law (Amendment) Act, 2013’, 2 April 2013, http://egazette.nic.in/WriteReadData/2013/E_17_2013_212.pdf.

16 Days Campaign Theme Series: When ‘Protector’ becomes the Perpetrator, by Saumya Uma

Saumya Uma

When ‘Protector’ Becomes the Perpetrator: Justice vs. Impunity  

In 2004, Thangjam Manorama’s post mortem reports found gunshot injuries in her vagina.  In 2011, Soni Sori’s medical examination showed that stones were lodged in her vagina and rectum. Both were subjected to sexual brutalities by state actors. While Manorama  did not survive to tell the world her ordeal, Soni Sori continues to languish in jail within reach of  the very police that has subjected her to repeated and horrific forms of torture.  In both instances, the perpetrators are still at large.

Have no doubt that these may be exceptions! In 2002, 11 women testified before the Sadashiva Commission about the sexual brutalities perpetrated on them by members of Joint Special Task Forces (JSTF) established for anti-Veerappan operations. The Commission found the testimony of 10 women unconvincing because they did not mention it to the remand judge!  (Sadashiva Commission report, 2 December 2003, Chapter IV, para 44)

In 2008, an NHRC team dismissed the testimony of five victim-survivors, who alleged sexual brutalities by members of the Salwa Judum, as untrue and unsubstantiated. Why? Because they did not remember the number of SPOs who took them away to the camps, the number of officials who had allegedly raped them and their identities! (‘Chhattisgarh Enquiry Report’, National Commission for Human Rights, at para 6.25)

After months of investigation by varied authorities, we were told by the CBI that in May 2009, Asiya and Neelofar from Shopian had neither been raped nor killed, but drowned of their own accord in  ankle-deep water on the Rambiara Nullah. (http://articles.economictimes.indiatimes.com/2009-12-15/news/28382529_1_cbi-report-neelofar-cbi-investigation)

In instance after instance, state actors commit such atrocities with full knowledge that the law and institutions would shield them in myriad ways. The women’s testimonies are dismissed as lies, using creative reasoning. The state actors are rewarded for their ‘gallantry’ (Ankit Garg of Soni Sori incident and A Ravi Kumar of Vakapalli incident are examples). We are told that national security and territorial integrity are sacrosanct – justifying the need for draconian laws – while there is not a whimper about human security; that the acts of officials were “in discharge of official duties”, and hence they cannot be prosecuted unless the government sanctions the same (S. 197 of Criminal Procedure Code); that the NHRC cannot directly inquire into violations by armed forces but can only seek an explanation from the Central government (S. 19, Protection of Human Rights Act); and further, that the ignominy that the victims / survivors were subjected to does not amount to the offence of ‘rape’ under the Indian Penal Code, because there was no penile penetration of the vagina (S. 375 of Indian Penal Code).

When ‘protectors’ transform into ‘perpetrators’, state-appointed investigators and prosecutors have little motivation in ensuring conviction of errant officials.  This reduces the criminal trial to a farcical exercise, making a mockery of justice.

An archaic penal code that fails to recognize various forms of sexual violence contributes to subjugating women’s struggle for justice.  In contrast, international jurisprudence recognizes as crimes a range of acts including rape, forced pregnancy, enforced prostitution, sexual slavery, enforced sterilization and other acts of a similar gravity. Experience from other jurisdictions indicates that laws on victim and witness protection, reparations, as well as command and superior responsibility are imperative, both for pinning accountability and for justice to victims / survivors.  Further, contexts of mass crimes warrant  substantive, procedural and evidentiary laws that take into consideration the specific ground reality.

Through its participation in advocacy initiatives on the Torture Bill, Communal and Targeted Violence Bill and the Criminal Law (Amendment) Bill, the women’s movement seeks to bridge the gap between law and reality, address the challenges faced by women in their struggle for justice, and to incorporate  international jurisprudential developments to strengthen domestic law.

Ultimately, even the best of laws cannot deter or render justice to women for sexual and gender-based violence, particularly by state actors, unless there is a political will to end impunity for such crimes.

Saumya Uma is a law researcher and human rights activist based in Mumbai, India.