Human Rights Watch Report: Status update on implementation of laws governing sexual offenses

On November 8th, Human Rights Watch released a report titled "Everyone Blames Me" Barriers to Justice and Support Services for Sexual Assault Survivors in India which takes a look at the implementation of legal reforms which were prompted by the gang rape and death of the young student in December 2012. The report indicates gaps in enforcement of the law, relevant policies, and guidelines aimed at justice for victims of sexual violence. The report details the scope of the problem arrived at by research into 21 cases—10 involving girls under the age of 18 at the time of the incident, research by Indian organizations, and more than 65 Human Rights Watch interviews with victims, their family members, lawyers, civil society activists, advocates, doctors, forensic experts, and government and police officials. The report uses these cases to make detailed recommendations on how the authorities can ensure that the criminal justice system treats the victims and their families with sensitivity, dignity, and without discrimination.

This report examines the implementation of India's criminal laws governing sexual offenses, as amended by the Criminal Law (Amendment) Act, 2013, and the Protection of Children from Sexual Offences, Act, 2012. They particularly focus on implementation in rural areas and among marginalized communities.

Field research and interviews were conducted in four Indian states—Haryana, Uttar Pradesh, Madhya Pradesh, and Rajasthan—from December 2016 to August 2017. These four states were chosen because of large numbers of rape cases reported from them, and the presence of strong local nongovernmental organizations that could facilitate access to legal, medical, and police documents. Based on the interviews, the report closely examines 21 cases that highlight institutional barriers for access to justice and health services, and gaps in implementation of laws and government policies. Of the 21 cases documented in the report, nearly half involved victims who were under age 18 at the time of the incident.

In addition, Human Rights Watch spoke with more than 15 lawyers, civil society activists, and advocates in these parts and in Mumbai and Delhi who work on gender-based violence, as well as six doctors and forensic experts. Human Rights Watch also interviewed 12 government officials, including seven serving police officials.

In addition to interviews, this report also draws upon secondary literature where relevant and accessible: government statistics, reports of local nongovernmental organizations, Supreme Court decisions, and the amicus brief prepared by advocate Indira Jaising and Lawyers Collective in Nipun Saxena & Anr. Etc. v. Union of India & Ors.

The report deals with shortcomings in terms of poor police responses were highlighted, citing instances of refusal on the part of the police in filing First Information Reports (FIR) in cases of sexual assault, especially where victims were from socially or economically marginalised communities. This is despite the Criminal law amendment act, 2013, which criminalised the failure to register a rape complaint.

The report also dealt with the issue of underreporting of sexual offenses. The Criminal Law (Amendment) Act of 2013 expanded the definition of sexual offenses to include new offenses such as voyeurism and stalking. However, a 2014 study by the Commonwealth Human Rights Initiative in Delhi and Mumbai suggests that these offenses are underreported to the police, and even where reported, the police often fail to register FIRs or properly investigate these crimes.

Another issue discussed in the report was the failure to provide access to adequate health services despite the law requiring doctors to be legally obligated to provide first aid and medical treatment free of cost to rape survivors. It was noted that under Indian criminal law, the prosecution can secure a conviction for rape based solely on the testimony of the rape survivor where it is cogent and consistent in so-called material particulars. Forensic corroboration is considered legally relevant but not essential. But in practice, judges and police give significant weight to forensic evidence, therefore necessitating standardized medico-legal evidence collection and awareness around its limitations.

The report points out that in 2014, the Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence to standardize healthcare professionals' examination and treatment of sexual assault survivors. The guidelines integrate processes geared to respect women's and children's rights to privacy, dignity, creating a non-threatening environment, and informed consent.

However, under India's federal structure, health care is a state matter, so state governments are not legally bound to adopt the 2014 guidelines. So far, only nine states have adopted the guidelines, including Uttar Pradesh, Madhya Pradesh, and Maharashtra where Human Rights Watch interviewed survivors and doctors. But Human Rights Watch found that medical professionals, even in states that have adopted the guidelines, do not always follow them.

The report also highlighted the lack of access to effective legal assistanceas a concern for survivors who come from poor and marginalized communities. A 1994 Supreme Court ruling says that sexual assault victims should be provided legal assistance, and that all police stations should keep a list of legal aid options. While in Delhi there are efforts to ensure this—the Delhi Commission for Women operates a rape crisis cell that coordinates with police stations, even though experts say even this is ad-hoc and not entirely effective—it is rare in other parts of the country, particularly rural areas. In none of the 21 cases documented by Human Rights Watch did the police inform the victim of their right to legal assistance or offer legal aid.

In 2013, the central government established the Nirbhaya Fund for programs aimed at the prevention, protection, and rehabilitation of women, allocating 3,000 crore rupees (US$450 million) from 2013 to 2017. A 2017 report by the Delhi-based think-tank Centre for Budget and Governance Accountability and the nongovernmental organization Jagori found that Nirbhaya budget allocations for two critical schemes, the 24-hour women's helpline and the one stop crisis centres, only started being utilized in 2015-16, three years after the plan was introduced.

As part of the Nirbhaya fund, the national government set up a central victim compensation fund in 2015 under which a rape victim should receive a minimum of 3 lakh rupees (US$4,650). However, every state has its own compensation scheme, each providing a different amount in compensation to sexual violence survivors. The system is inefficient and survivors wait a long time or are unable to access the scheme. Out of 21 cases documented by Human Rights Watch, only three survivors had received compensation.

India is party to core international human rights treaties that obligate the government to protect the rights of survivors of sexual violence. The failure of the state to protect victims of abuse can in itself be a violation of human rights. In May 2017, during India's third Universal Periodic Review at the United Nations Human Rights Council, three dozen UN member countries raised concerns over violence and discrimination against women, and some countries specifically asked the Indian government to better implement existing policies and laws to ensure acts of violence against women and girls are registered, investigated, and appropriately prosecuted. Several countries also asked India to ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, which would allow the committee that monitors the treaty to receive and consider complaints from individuals or groups within India.

The report also makes certain recommendations with regard to action that should be taken by the Indian central and state governments. It focuses on the need to ensure regular trainings and refresher courses to sensitize police officers, judicial officials, and medical professionals on the proper handling of cases of sexual violence. There is also a need to enact a witness protection law, which includes protection for women and girls, and their families, who face retaliation for filing criminal complaints of sexual violence. It must be ensured that one stop crisis centres are properly equipped and accessible, establish a monitoring mechanism for these centres, publish accountability reports periodically, and ensure the Nirbhaya Fund disburses funds transparently.

Read the full text of the report here.