A study of pre-trial and trial stages of rape prosecutions in Delhi has found major gaps in support services available to victims, hostility at the hands of defence lawyers and non-compliance with norms during medical examination.
While the victim-friendly provisions in the Criminal Law (Amendment) Act, 2013, have made a marked difference in the manner in which cases of sexual assault are handled in Delhi, there still continues to be widespread victim shaming, and lack of support and counseling services for victims, a study by the Partners for Law in Development (PLD) has found.
“In terms of support system and victim compensation, there is a long road ahead,” said Mrinal Satish, a professor at National Law University, at a discussions on the findings of the study held at the India International Centre in Delhi on September 1.
In an attempt to identify the gaps in the existing procedures and to find out whether the large body of jurisprudence is complying with the reforms in relation to victim-centric procedures and reforms, the legal resource group conducted trial observations of 16 cases of sexual assault in four fast track courts in Delhi between February 2014 to March 2015.
In each case, the accused was an acquaintance of the victim – which spanned all age groups between 18-50 years and belong to relatively weak social economic backgrounds.
While the findings of the study are far from new, they hold up a mirror to society where women are repeatedly subjected to sexual assault at the hands of men who hold a position of dominance over them. “Rape is rarely a one-time offence,” said Madhu Mehra, the executive director of PLD, as she shared the findings of the study with the room packed with students and members of civil society.
No means for protection outside the courtroom
Even while there are provisions inside a courtroom, such as the presence of a prosecuting officer to funnel through the questions being asked of the victim and putting up of a green screen between the accused and victim to prevent intimidation, there is no means to protect them outside the courtroom.
Since the accused is often known to the family of the victim, there is widespread intimidation and often pressure to settle the matter. Most victims relocate due to social stigma, rendering them even more vulnerable.
Being emotionally and financially dependent on her family, the victims face increased vulnerability and lose the power to negotiate.
While a green screen might shield a woman from having to make eye contact with a man who assaulted her, outside the courtroom, both are made to share the same waiting area, and in some cases they even took the same mode of public transport to arrive at the court.
“There is no point putting a green screen up in a courtroom if everywhere else there is eye contact, intimidation, threat and coercion,” said senior advocate Rebecca John. “Somewhere the law has failed the victim because she doesn’t get the right kind of assistance.”
What happens before the trial
In the pre-trail stage, even while the police claim all the procedures are in order, in reality, quite often the police itself attempts to dissuade the victim from filing a FIR, the study found. Even when a case is filed, there are delays in providing a copy of the FIR to the victim, who in some instances had to pay to obtain it.
According to the study, in most of the cases the medical examination was not conducted in consonance with Ministry of Health and Family Welfare guidelines, with some victims even facing hostility from the medical staff. In one of the cases, according to Mehra, a 50-year-old was harassed and told that she was lying about being assaulted because “at her age, she couldn’t be raped.”
Even before the trial begins and when a rape survivor enters a courtroom, “she has no clue what is expected of her, and therefore there must be some process of orienting her,” said John. “They don’t even understand the geography of the courtroom.”
“I will concede that things have changed and that our courtrooms are far more sensitive today – especially in Delhi – than they were two-three years ago and many of these amendments have had an impact on the way a judicial officer takes control of these proceedings,” said John. “What the problematic area is when they try and balance a rape victim with the constitutional rights of the accused who also has the right to defend himself and therefore, how do you do that balancing act and that’s where judicial officers sometimes falter.”
Another area where the reforms are failing is in the cross-examination of victims – who are also the witnesses – which remains highly hostile with the defence attorney attempting to unsettle the victim. In some of the cases observed for the study, the questions were so hostile that the victims broke down and left the room.
Even though the questions are required to be routed through a presiding officer, they often do not have control over the kind of questioning that takes place of the rape victim. “Not because the presiding officer is not sympathetic, but the hostility she faces in the cross examination is not at all unusual, because we hear that all the time,” John added.
Citing an example from the study, in one instance the defence counsel demanded to know from the victim through the presiding officer: ‘At the time of penetration, did you cry with your eyes?’
“Now what kind of a question is that?” John demanded.
In another manner of intimidation, defence counsels often circle the victim. According to Mehra, even though the presiding officer was strict to make sure the defence counsels stood in their places in one of the cases observed, in the majority, this does not happen.
Unrealistic time frame set for trials
The 2013 amendments also stipulate that the trail should be completed within a span of two months, “which is completely unrealistic,” said John, who for years has been opposing fast track courts. “I don’t think you ever end up giving justice to anybody – you bypass the procedures, and quality of evidence is compromised.”
The PLD study – the scope of which was limited to the deposition of the victim in court – found that not even the testimony could not be completed in that time frame, which on an average lasted for about eight-and-a-half months.
There are two forensic labs in Delhi, said Mehra, which means that there is are substantial delays in getting results and add to that the case load of the courts, the timeline set for the trails is highly unrealistic.
A massive gap has been observed in the support services that enable the victim to access judicial remedies and counseling services.
Support services for victims
According to Pratiksha Baxi, an associate professor at Jawaharlal Nehru University, there is a need to shift focus from getting a conviction to giving everyday support to the victims during the trial proceedings. “Victims can be left traumatised by the legal process itself,” she said.
Baxi highlighted the need for counseling, which should be empathetic rather than sympathetic. “It should be one based on compassion rather than pity and should have an understanding of sexual violence,” she said.
Victims of a crime have a right to compensation – an invaluable form of support available under the law. Yet, according to the study, sexual assault victims remain unaware of this right.
Section 357A of the Code of Criminal Procedure holds that compensation should be given to victims of crime irrespective of whether there is a conviction or not, weighed in Satish.
“Acquittal doesn’t necessarily mean that a crime hasn’t occurred and the compensation depends upon the socio-economic status of the convict and on whether he is able to compensate the victim,” he added. Thus, the provision puts the responsibility on the state to do so.
In most of the cases, the victims cannot afford to have a counsel, and hence fall back upon the legal services authority. But the study found that victims are not informed that they may apply to district legal service authority to get that compensation.
Under the provision, the compensation is available at two states – at the start of the case as an interim relief, which is then followed by a final compensation. However, according to Satish, there exists a myth that women file false cases to take the benefit of this interim relief and then turn hostile.
One of the solutions, according to Satish, is establishing separate bodies to assist victims and accused.
At present, the Legal Services Authority is required to assist the accused in getting legal aid as well as provide victim compensation, help them in getting a counsel and be their support system.
“It’s humanly impossible,” said Satish. According to him, there is a conflict of interest in the system in its present form. “On one side you’re supposed to be safeguarding the rights of the accused but at the same time you’re trying to support the victim – ideally you should have two separate bodies to deal with this.”
Despite these shortcomings, the manner in which sexual assault cases are handled in the trial courts in Delhi is far better that in other remote parts of the country, many have observed.
“Things have improved from what they were earlier,” Satish added. “Since a lot of law reforms and changes are always slow I see the positive in it that in a few years we might get to the what the guidelines and judgments of courts have said.”