Beyond POSH: India urgently needs a women-friendly civil law regime to bring past sexual offences under trial
[dropcap]T[/dropcap]he second wave of India's #MeToo has been happening over the past month with women from media, journalism and literature coming out on social media naming the perpetrators who had/have harassed them. There were heart-wrenching accounts of women whose consent had been violated, raped, molested by men who were friends, acquaintances or related to them professionally. For some, it had taken years to come out in the open — owing to a culture of silence which forced them to deal with their trauma in private.
Nevertheless, across the spectrum one could pick similar threads in the conduct of the predators — abuse of power and extreme sense of entitlement, deliberate ignoring of the victim's No's, coercion, gaslighting in an attempt to normalise abuse. For the victims, it resulted in not just hostile working environments but also a denial of the right to freely and equally participate in the workforce. It resulted in a loss of their autonomy, accompanied by severe mental torture. Victims suffered mental trauma which persisted over months and years and ultimately, in the absence of a provision to hold their abusers accountable for their crimes, kept them captive in a feeling of perpetual victimhood.
Yet these women chose to free the demons from the past by telling their truths. The accused men impudently claimed innocence knowing that many of the #MeToo allegations would not stand in a court of law owing to the private nature of their calculated predatory behaviours. They threatened their accusers with defamation cases and questioned their motives. Some of the men (and women) who came out in support of these women stressed on the word "proof" of the alleged violation, even while extending their moral support to these women. Because, it seems illogical to someone who has neither been the perpetrator nor victim of a sexual crime to comprehend how any crime can be convicted without "evidence". This is also the reason why #MeToo movement is relevant — it is not about finding solution through a punitive justice system which demands high standards of evidence to convict a criminal; it is a way a victim woman can find closure by telling her truth as experienced by her and holding the perpetrator accountable for his act. It is taking back the power and autonomy that was snatched away from her.
The collective outpour of stories of victims took Indian social media on fire. The victims belonged to various backgrounds — some had just started out in the careers; a few were at the helm of their organisations facing a heavy glass ceiling pressing them down; and some had lost entire careers due to the sexual harassment that they had faced in the past. While social media was divided on whether to trust the #MeToo movement or not, it was disheartening to see some women defending the accused men owing to their familiarity with these men. Some of the arguments heard in support of the accused men were — "The man is good at his profession and his image will be tarnished"; "He has a family"; "He has never done it to me"; "I have always given it back", and so on.
The truth is that a man can be your friend, your acquaintance or may have never harassed you sexually. Still, it is not a determinant whether the man has not sexually harassed another woman. Predators seek out women they perceive as vulnerable, seek and make situations to get their prey in isolation and are emboldened when the women do not speak out. Empathy or a personal experience as to what it means to live a threatened existence may get people to understand reasons and emotions behind the #MeToo upheaval and support it. A privileged background and having lived a life with powerful support systems can make one blind and even insensitive to the stories of #MeToo.
The silence of the "intellectual men" in our society was even more deafening. If "any woman" can accuse "any man" for a sexual crime, then what will happen to us, thought these men in brotherly solidarity. Obviously, when as a society, we don't expect our fathers, brothers and sons to empathise with our women, how do we ask men to "put themselves in a woman's shoes"?
All men are not predators. Some are. These men can appear suave and charming and can be achievers. They can be trailblazers who take liberal stands on issues. They can appear progressive, they can fire your imagination. In fact, it is also possible that they are used to a lot of adulation that gives them a sense of grandeur, a sense of invincibility that they are above the law. They are under the illusion they can violate another human being and still get away with it. It is a deliberately learned behaviour and there is no unlearning of it. It arises out of an extreme sense of entitlement.
But the consent is too ambiguous, some may say. A genuine confusion about consent is possible and some people are subject to it too — some who would not want to violate another person's consent. However, with predators and rapists, they are constantly are on the lookout for confusing situations, interpreting them to their convenience and finding such situations over and over again probably because they went unpunished, or they got away with it in the past. So, offering a kind word or a cup of coffee in a situation which is perceived as a normal social interaction by most people would be "interpreted" as "she is interested in me" by a typical rapist personality. It is a "learned behaviour" arising out of a sense of entitlement and a failure to recognise a woman as a human being.
Why do women refrain from reporting sexual crimes? Though it is difficult to come by studies about rape reporting in Indian context, RAINN, the largest anti-sexual violence organisation in US statistics show that out of every 1000 rapes, 994 perpetrators will walk free. In India, the conviction rate maybe higher, yet women still do not come forward to report a rape or sexual crime owing to the stigma attached to victims of rape.
The Criminal Amendment Act of 2013 provides for amendment to laws relating to sexual offence as result of the widespread agitation against the rape and killing of 23-year-old female physiotherapy student (who came to be known as Nirbhaya) in the heart of the capital city of India. Despite it being widely held as a progressive act, women still are hesitant to come forward to report a rape and less so when it has been committed by an acquaintance, family member or someone known to them. Some of the challenges are discussed below:
Problems with existing rape law in India
In India, once a woman reports a rape, she loses all control of her life; her agency is taken up by the state on her behalf as the crime is perceived as a crime against the state. According to the Act, police are to compulsorily register a case when a rape is reported. There is no provision in India to report the crime to the police and having the option of not going for compulsory prosecution. Under the rape laws in the West, women are given the choice at the time of reporting whether they want to proceed with the case or not. Usually, closer to the occurrence of incident, a majority of the victims could be in a state of shock, distressed, unable to foresee the consequences. Under duress, they would be unable to decide whether they are ready for the long overhaul of a criminal procedure etc. Given this situation, a woman may not be in a position to take a call on this. In acquaintance rape cases (perpetrator known to the victim), where the victim does not want to name the perpetrator due to personal reasons or because she fears retaliation, she may not even want to name her perpetrator or may not be ready to reveal his name at that point.
Since Indian law mandates a compulsory prosecution on reporting of a rape, many victims abstain from reporting. This also means that crucial evidence will not be getting recorded since the complaint has not been made. There is a time-frame within which evidence like DNA etc. have to be collected which is within 48-72 hours. In the absence of such strong evidence, if at a later stage the victim wishes to pursue the case (after having received trauma support etc.,) her case gets weakened substantially. Also, the opportunity for investigating agencies to ascertain whether there are sufficient evidence to proceed with the prosecution etc., cannot take place too.
Not being able to report the case must not mean that the medical and mental health assistance needed for the victim are denied to her. In India, there is no provision for a victim to report the matter to the police, get her evidence (forensics, injury recording, DNA sample collection) recorded without naming the perpetrator. If there is a provision to record a crime anonymously and the choice for the woman whether to go for prosecution or not will not only encourage crime reporting but also preserve the evidence if she wishes to go forward with the case at a later stage. In the West, the evidence from the victim of rape is collected and stored up to six months under unnamed labels so as to give time for women to recover from the trauma and pursue the case when she can stand upon her feet. If the woman fails to pursue the complaint, the stored evidence is destroyed.
Getting crimes to be reported is one way for law enforcing agencies to understand the extent of the crime and take measures for further crime prevention. It also enables access to medical and state-funded mental health support to the victims. Today, if a woman is a victim of sexual crime, she is to deal with it on her own; she has to find resources to recover on her own with little or no help available. The underlying view still seems to be that instead of perceiving sexual crimes as a social issue it is still side-lined as a women-gender issue.
Absence of a civil law under which rape and sexual crimes can be pursued
In India, there are no civil laws under which sexual crimes can be punished. In the notorious Harvey Weinstein case, there were incidents dating from the 80's which can be trialled under civil law. In another case, Cristiano Ronaldo the footballer, who was accused of having raped a woman in 2009, is facing charges in the resurfaced case under civil laws.
Some of the accounts in the recent #MeToo wave in India are cases dating to several years before. The question that naturally arises is how these cases will be dealt with since the incidents are several years old and evidence collection is practically impossible now. For a criminal case to stand in the court of law, a proof beyond doubt or evidence from the alleged incident is paramount to proving that the incident happened as alleged.
The difference between civil and criminal law is the principle of preponderance of evidence. In a criminal law, the burden of proof and its degree of evidence are quite high; something to the degree of to be "proved beyond reasonable doubt that the alleged incident has occurred. This would require a proof of the degree of 98% to 99% in order to win a case. In case of civil cases, the burden of proof is lower and the preponderance of evidence is also lower. Which means, that if there is a 55% certainty that the alleged has act has taken place, a favourable judgement can be given. Of course, in civil cases, there is no jail term provision and is more for repatriation and compensation — which are very crucial remedies for victims of sexual assault for a sense of closure and also to assist in legal and mental health assistance expenses. It is very important to have laws with lower preponderance of evidence in sexual crimes considering that most of them are committed in private a situation deliberately chosen by the perpetrator.
In India, there is only one law under the civil laws for sexual harassment which is the recent POSH Act [Sexual Harassment of Women at Workplaces (Prevention, Prohibition and Redressal) Act of 2013]. However, even this has a statute of limitation of three months extendable up to six months and cases falling outside this limitation, fall out of the jurisdiction of the Act. Also, this legal provision is only to protect women in workplaces and therefore and leaves out a large majority of women without remedies.
The qualifications of members of the Internal Complaints Committee and the Local Complaints Committee mandated by the Act, are vague and loosely worded. It mandates the members to possess a "legal knowledge" and not necessarily be a lawyer; it talks about the members having had "experience" working for women and is silent about the inclusion of mental health professionals in these committees. Sexual harassment includes a lot mind games, gaslighting, and power inequalities. To understand this we need people who are well-versed in the area of law and mental health and gender studies experts. Merely claiming to have worked for NGOs "fighting for women" or "girl empowerment" or "disbursing loans for women" does not make one a right candidate to be able to understand predatory behaviour and the deep psychological of impact sexual harassment can have on the victims. We need individuals with deep knowledge and experience in dealing with human rights violation and inequality to be heading such committees — such as retired judges, police officers and human rights activists, gender and development experts. The present wording of the Act permits practically anyone to sit on these committees and reduces them to another form of khap panchayats where personal and arbitrary judgements can be passed.
Studies have shown that women, in the course of gaining strength from therapy or after having recovered from their initial trauma have come forward to report the crime done to them. In many cases, there might be corroborating evidences for their statements — witnesses, admission by the harasser, etc. However, in the absence of a civil law, such women are again forced to file an FIR and pursue a criminal complaint, increasing their likelihood of failing the case. This will only strengthen the ignorant suspicions of the critics of #MeToo movement who bay for the blood of these women who according to them "file false rape complaints". According to them, a case which cannot be proved is inherently false. It is also one of the reasons why several men accused of rape are acquitted on the grounds of insufficient evidence or by giving the benefit of doubt to the accused.
In a criminal rape case, the state moves against the accused on behalf of the victim as the crime is perceived as a crime against the state. When a disproportionately powerful state moves against its citizen, the benefit of doubt is always given to the accused as matter of principle of jurisprudence. However in a civil case, a woman still has her agency. She is given the same benefit if doubt as the accused and hence the likelihood of her succeeding a civil case is higher even in the in the absence of stringent evidence as mandated by criminal law procedure. India is urgently in need of a civil law under which sexual offences can be brought under trial.
Difficulty in getting a restraining order
In India, getting a restraining order against an individual is still a difficult task. In sexual assault cases where the women may not have made formal complaint due to reasons discussed above, there is a likelihood of her life being continuously in danger because the perpetrator gets emboldened by the silence of the victim. To get a restraining order, the victims will be under the compulsion to report the rape and undergo a compulsory trial for the rape. There must be provisions for a rape victim to be able to confidentially go to a judge, produce her evidence and if found convincing, secure a restraining order against the perpetrator in order to avoid further risk to her.
Option of plea bargain/plea agreement in acquaintance rape cases
Plea bargaining was introduced in the Criminal Procedure Code of India in 2005. It is defined as a pre-trial negotiation between the accused and the prosecution during which the accused agrees to plead guilty in exchange of certain concessions by the prosecution. While this is an option exercised in rape cases in the West, which is sensible as the anonymity of the victim can be maintained, there is no option of going for plea bargain in crimes against women in India. There is a possibility that in acquaintance rape cases (in two-third of rape cases reported, the victim knew the assaulter), where there is sufficient evidence on the prosecution side and in some cases where both the parties wish to avoid trial, there should be a plea bargain option made available. This helps women still hold their abusers accountable for the crime, without the long-drawn procedures of our courts.
Police and forensics
Collecting strong evidence in rape cases by police can immensely help in building strong cases. Strengthening the investigation skills of police to collect evidences is the key for a strong case for the prosecution to make. For example, DNA from dried sperm can be printed even nine months after the incident through proper accredited labs. We need trained forensic experts, labs with international accreditation like ASCLD-LAB (now ANAB) — I could not find labs in India listed here. We need to equip the police stations to be able to get into action when a rape is reported. We must make "rape kits" available in our police stations as is available in the western countries.
Recently, there were announcements by the government to provide rape kits in police stations and to strengthen the forensics lab in the country as a result of a rape victim writing to the Delhi Commission for Women. It is yet to be seen as to how much of this has been implemented. The case brought to my mind is that of Pascal Mazurier case — the vaginal swabs of the victim child was misplaced during lab investigation and the victim subsequently lost the case. This was after a private doctor who was first consulted after the incident had confirmed rape of the child. When the investigating agencies themselves can botch the cases, how does it give women the confidence to come forward and report a rape?
Medical support
The legal clause making it mandatory for doctors to report the matter to the police makes several women silent about the assault to the gynecologist they may consult in private. Even when they tell the gynecologist, the doctor may not mention it on the diagnosis/prescription fearing her legal responsibility to report the mater. Women who are sexual assaulted have to be screened for sexually transmitted diseases, HIV and other infections. The clause that makes it mandatory for the doctors to report the rape victim to the police prevents women seeking right medical help. The law in place with a good intention of encouraging reporting of crimes becomes counterproductive when women who wish to avoid compulsory trial are forced to remain silent and not report the rape to the doctors.
In the West, there is specialised training to examine a rape victim to ascertain the injuries and scientifically record them. Accreditation like SANE (Sexual Assault Nurse Examiners) is a branch of forensic nursing which equips nurses and medical professionals to assist sexual assault victims as well as investigating agencies. In India, we do not have such accreditation procedures or courses which train medical professionals in this area. If there are trained professionals in every hospital — be it private or government — who have undergone the training, the evidence collection process becomes much more robust.
Mental health support to the victims
This is the most challenging aspect for victims of sexual assault. The toll that a rape takes on a victim is immense. Stranger rape cases are drastically different from acquaintance rape cases on multiple levels. Acquaintance rape victims have additional trauma (owing to familiarity, disbelief, breaking of trust, time for mind to accept the violation because of the familiarity) to come to terms with where the act of violation. Every survivor of sexual assault/rape should be given mental health assistance by the state. The anonymous, online mental health support by RAINN, the largest anti sexual assault organisation in the US has helped women (all over the world) access mental health support in an anonymous manner. The victims of sexual assault want anonymity most of all and be able to access mental health support without being judged, reprimanded and moralised.
Many victims of sexual crimes still experience rape myths and victim-shaming among the most prominent mental health professionals working in top government institutes in Delhi. One qualified lady psychologist patronised a rape victim in the very first session: "I was also a single woman and living away from my parents in Delhi, I never was raped". She justified that it was her attempt "to put guilt inside the head of the victim to prevent future incidents". Consulting therapists and trauma experts is an on-going process for rape victims with several financial implications.
We need more spending on studies related to rape and sexual crimes ,we need to train young psychologists on how to handle the trauma faced by rape victims. A high number of victims of sexual crimes fall in the age bracket of 15 and 35. We need women in this age group to be trained in providing assistance to victims of rape. This should not be restricted to just professionals working in government sector alone. It should be cross cutting, reaching to a wide group of professionals through scholarships to study best practices abroad and regular training and accrediting courses. It is also essential for trauma support providers to be able to rise above cultural prejudices and patriarchy to be able to give support to the victims impartially.
Government funded research needed in this area
We need government funding in studies related to sexual assaults, studies to gauge the victim impact, the reaction of victims post assault, the mental health needed by the victims etc. India grossly lacks in studies in this area. Due to a lack of such studies, many of our court judgments in rape cases are based on rape myths and on "how women are supposed to behave post a sexual assault". Our perception of how a woman will react after a rape is still based on what is portrayed in movies — that a woman who has been sexually assaulted will hysterically cry and beat her head against the wall and vow to avenge her assaulter. It can be far from truth. Women can be calm, trying to gain control in making sense of the assault. They could cry, laugh, get hysterical, do anything. It was disheartening to see that in Mahmoud Farooqui case, the courts relied heavily on the conduct of the victim post the alleged sexual assault on her, in a trial which eventually went in favour of the accused.
Many sexual assault victim do not necessarily proceed to report a crime with a sense of revenge. Far from that, it is the realisation that they have undergone a tremendous violation of their body and being — the only real possessions for them in this world is what that makes them do so. To report the gross crime done against them is also a way of catharsis for them to be able to move on with their lives and kill the demons of the past. It is out of self love and to regain a sense of self that they do it. The WCD minister's recent suggestion in the aftermath of #MeToo in India, to have four-member committee headed by retired judges — something in the lines of Truth and Reconciliation Commission set up by Desmond Tutu — was a welcome move that was unfortunately shot down, a sign that the wait for the much needed change will indeed be prolonged.
Reporting a sexual crimes and getting reprieve is quite difficult in our present day legal system. Many women have gone ahead and fought their cases and failed. Some have made an impact on the women, to come forward to report their ordeals. Bhanwari Devi, PE Usha who was sexually harassed in a public bus, civil service officers Nalini Netto, Prakriti Srivastava, and Roopan Bajaj are also examples of women who have fought against odds and have paved way for exposing the lacunae of the system. Many, including progressive feminists in the country, have criticised Raya Sarkar and the #MeToo movement in media, citing a lack of due process. However, when a system which is supposed to ensure due process is so heavily stacked against women, where else will victim find their reprieve?
[Note: While the author is sensitive to the gender dimensions of sexual crimes, this article is not written in a gender neutral manner and discusses the rape, sexual assault, sexual harassment and other sexual crimes committed by men on women and girls. The author can be contacted at ssamuel.pyn@gmail.com.]
