‘Court proceedings ensure a complete loss of dignity’

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Rebecca John, 48, tells Nishita Jha how the legal system is unfair towards rape victims

Rebecca John, 48
Rebecca John, 48

There is a beautifully worded statement by the Supreme Court that reassures us that all that is required to convict a rapist is the prosecutrix’s statement, that all else is unnecessary. I can say without any qualms that this statement is absolutely false. While I support the right of an accused to put up a defence, no one deserves the kind of brutal cross-examinations spanning over hours that I have seen rape victims go through in court. It is common knowledge now that the victim in the case of rape is treated as the accused — the questions asked are not just insensitive and cruel, but also variations of the same thread, all intended at tripping up this apparently sacrosanct statement. What is the point of cross-examining a victim about the number of her male friends, her personal life and choices and leaving out everything about the crime itself?

The only reason that any woman chooses to testify against rape is to restore her dignity, and perhaps, manage to punish her rapist. If the court proceedings ensure a complete loss of dignity, the medical examination to establish rape is even more inhuman. Not only do we relay on the archaic two-finger test to establish whether the victim was ‘accustomed to sex’, as if that is in any way relevant to the fact that she can be raped, but I have also seen certificates where the government appointed doctor has complained about the prosecutrix being ‘uncooperative’. How do they expect someone who was recently violently sexually violated to behave?

In urban India, the dynamics of sexual behaviour and therefore rape are changing, but the legal proceedings do not take this in to account. It is not unthinkable that a woman might accompany a man somewhere, that she might go to his home, even that she might drink with him. Does that imply that she is asking for rape? The laws try to tell us that this is not the case, but the court’s proceedings are a different story. You will find everyone from the judge to the defense to everyone who reads about the case repeatedly ask — what was she doing with him in the first place? Why did she know this man? What does this presume, except that women should not be treated as equals who are allowed to move, mingle and work freely unless they want to be raped? In all the cases of rape that I have seen, victims are routinely offered large sums of money to settle outside court, and are often offered the rapist’s hand in marriage. Beyond registering a complaint, the police rarely ever file a case against the acquittal of someone they have arrested, even though they are usually one of the first people that has seen the victim after she was violated, and are privy to her trauma. Given the insensitivity and ineffectiveness of our legal systems, who would want to testify against their rapist? I certainly wouldn’t.

Nishita Jha is a Correspondent with Tehelka. 
[email protected]

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Article first published on 31 Mar 2012.

8 COMMENTS

  1. One point to be mentioned.How to identify the false allegations of rape and revenge?Sex of mutual understanding can later turn out to be rape allegation.
    Can’t it happen? Is no questioning and clarification a law will be one sided and misused.By saying this I am not justifying crimes against women.But the other side also can be right at times.

    • The number of false accusations in cases related to sexual crimes (including rape) is the same as the number of false accusations in cases of alleged robbery, kidnapping and even falsification of death. In the US, the FBI put this figure between 3%-7%, so you can see that the number is small fraction of total cases. What’s more important to note is that it’s the same % of false reporting that holds true for all other crimes. Does that mean we should stop prosecuting people for murder and kidnapping, because maybe it was a false accusation? No. But let’s go back to rape and talk in pure theoretical terms, why do you think a woman will make up a story about rape? Why would she suffer all the public backlash and courtroom humiliation? I am not saying that it is out of the realm of possibility that a woman could have had consensual sex with a partner and later calls it rape. We have all seen the movie Aitraaz. But don’t you honestly think that reforming the judicial system so that more than 1 out of 635 rape victims gets justice should be a national priority? Surely all those women can’t be lying, and they all deserve justice through the system. We can’t let them down.
      I wish I could quote you more national figures, but with the fine job that our government does of keeping records, I dont have any statistics to offer. You must however bear in mind, that in India, according to the NCW about 95% of rape cases go unreported, so take the number the media reports as rapes in a year and multiply that by 20. Then you’ll have a better sense of how serious the problem of rape is in this country.

    • you know what Raj, I think rape sentence should end up in castration with minimal appeal rights to the accused. Why you ask, men should think 100 times before jumping into a bed with a women…they need to be terrified if they piss off this women and she screams rape..guess what their pecker is off. This will be the last F**k of their life. Given the stigma associated with rape allegations, no girl in her right mind will scream rape unless its legit.

  2. She has got it all wrong,the law which was made perhaps in 1862 is defective and it was not changed as our honorable MP’s could not smell any money in it. A rapist will go free if his lawyers can prove that the woman used to have sex. Most Indians cannot differentiate between sex and rape anyway.(just read the comments posted by literate Indians on websites)

    • Well said! Many Indians think of sex as a genital event, not much to do with the rest of the person! Wild horses mate with more feeling than horses that are bred and just led on ropes to rut- maybe there’s a connection.

  3. There can indeed be a clear distinction in dealing with various types of rape scenarios. Law has to be amended to maintain the dignity of the victim. Some suggestions are : –
    1) Where rape is undoubtedly violent and coercive and is reported immediately or as soon as the victim reaches the comfort zone of her parents/friends, and where the offence and is preceded by such acts as kidnap/forcible confinement etc, and where there is physical injury of a violent kind, trial must be by a special fast court. Medical examination must also be by a designated lady doctor in a designated hospital. The Special Trial Court must NOT entertain irrelevant questions and must rely heavily upon the essential findings of medical and forensic evidence. Sentencing must be immediate and punishment must be exemplary.
    2) In cases where there is reasonable doubt of mutual consent, evidence may be led by the defence and prosecution on the merits of questions pertinent to the case, for which, the Judges must be chosen selectively to ensure the Defence Lawyer maintains a dignity of common sensibilities.
    3) In cases where the accused absconds and has to be arrested, rather than surrender on his own, the Courts must treat such cases as forced rape, where the accused must be treated a guilty unless otherwise proven.
    4) In cases where the victim is a minor, there should be no cross examination, if medical evidence confirms rape. Sentencing must be immediate and punishment must be exemplary.
    5) All rape cases must be dealt with in Special Rape-case Courts and not just any court.
    There is also a need to establish Specific Medical Investigative Cells in Govt Hospitals, one in each District, where rape victims and arrested accused rapists be examined, both, physically and forensically, to establish culpability of the act.
    In cases of extreme violence, such as the one presently in the news, laws for punishment should be empowered to award a sentence of castration, however, such a punishment must be finally confirmed by the Supreme Court. Long term imprisonment must accompany such sentencing.
    Only by such draconian measures will we be able to check the rising menace of violence on women.

  4. true.. questioning about why she was there, how she knows him etc are vital, unlike projected as ‘unwanted’ in this article; thus said, court should also be equipped to make these questioning a less traumatic experience by making it more private and comforting. cause, if the allegation of rape is true, then the survivor has endured more trauma already to go through this legal processes

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