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This is a response to Vrinda Grovers views on the new rape law as told to Priyadarshini Sen in the article "Look Before You Creep" published in Outlook Magazine.

I want to state upfront that I have a deep respect for Vrinda Grover and her work for human rights, and the article merely shares my view on the subject, which is not necessarily superior to hers, and her knowledge of the law and working with it to ensure human rights most certainly exceeds my own.

I had been bothered by the direction the Delhi Rape case protests were taking when they started demanding for a new law. To me, it seemed the easiest way out of the social slap we had faced, by shrugging off our role and shoving it onto the government's shoulders. The Delhi Gang Rape was illegal under existing laws, including death penalty for rapists when the victim died, and murder got added to the charges.

I understood this to be an unhealthy avoidance of social responsibility and the need to engage in social reform - which is where the problem lies. The idea that a few people can get drunk and think it will be good fun to pick up a girl to rape. The rest went downhill from there, but that is the crux of the issue we see echoed in almost every urban gang rape that involves random pick up of victims. There was an opportunity for discussing the role of alcohol or drugs in lowering inhibitions and making criminals more likely to act on criminal intent than the natural caution of sobriety.

Alcohol lowering inhibitions is a proven fact and alcohol is often a factor in all kinds of violence from brawls and murders to rape and domestic violence. Additionally, alcohol lowers the ability to be aware when an action goes too far. I personally know a woman who masturbated hard enough to injure herself when drunk. Countless cases of financial exploitation and road accidents can be traced to alcohol, yet there is an inexplicable inability to discuss this subject openly and find out what is enjoyment and what poses too much risk to the public at large.

There was potential to discuss how we run our lives when the bus could be traced because of the bribe records of police. The lack of oversight in investigation of people employed in services catering to schools. But all this doesn't sell as well as the idea of rape. Rape tickles the consumer mind. Rape occupies space in TV debates far more than any other crime for the same reason old Hindi films had rape scenes. We may protest all we like, but rape is sex. It is non-consensual sex, activists may protest that it isn't sex at all, but for the mind, the perception is one of sex, and there is immediate interest.

Any discussion about the vulnerability of women who may be leaving themselves open to assault got shouted down as victim blaming. We like our scantily dressed eye candy. Protect them in other ways. Don't make them reluctant to entertain us. No one is disputing that a rapist is wrong, but to peddle tips on smart dressing in one segment of media and say clothes never invite rape is a bit absurd, because there is no explanation on the intervening pages on why a business suit conveys professionalism to all, but bare skin does not convey sexual invitation to all. And if bare skin is not sexual, then why we no longer see shirtless men as decent company?

The dialogue was carefully herded into the TRP maker - SEX (in this case, not consensual and injurious and murderous), while anything that might actually make girls less easy to exploit got ignored or shouted down with some regressive label. One would almost believe that parents who caution daughters to come home on time or wear clothes that cover body are looking to enslave them worse than random strangers who apparently are more interested in their safety and will never harm. What is achieved by isolating women from protective parents in public perception? It makes sense to criticize parents for LIMITING women, but where was any sense of parents as potential support?

That got derailed because to put it bluntly, fighting for women's rights and all was fine, no one wanted to risk criticism of habits and defaults they enjoy.

The law can only punish culprits after a crime. It cannot change what people choose to do.

We got a law that upped the punishment for rape, as well as broadened the definition to rape in a grand promise to more and more people - when the fundamental problem was that people who were raped as per the old definitions and punishments weren't getting justice already in a country with one rape in seven minutes, but not one rape judgment. Worse, our law believes a woman's accusations by default and now we have expanded them to cases that are impossible to prove, because there won't be DNA evidence or injury, and the victim may appear perfectly normal till she files a case two weeks later.

Vrinda Grover says she is not able to understand the anxiety men face.

I’m very puzzled at the high level of anxiety from men in all professions. Is it really that men are doing this so rampantly that they are suddenly in panic mode? That they have been putting their body parts into women without their consent? In that case I have a word of advice to them: now this is the law, don’t do it, and if you do it, you will be arrested. And if the courts deem it fit, you’ll be punished. That’s a hard-won reality. The new law just clarified what consent meant. It said there has to be an unequivocal, voluntary agreement by word or gesture.

Well, consider the roles reversed, and if men were able to claim all sex as consensual and their word were accepted as the truth unless rape could be proved? Proving rape is still possible. How do you prove an absence? How do you prove God doesn't exist, if there being no proof could simply mean that it hadn't been found yet? How do you prove a rape did not happen if all it would mean is that there was no injury or evidence found, but not that you were innocent? Why wouldn't men be anxious? Any sane man should be terrified of these laws. In essence, the law leaves no way for the rape accused to prove himself innocent short of proving that he wasn't at the place at all.

These laws are based on a presumption that women would never lie about being raped. But is it always true? I am not such a legal expert or a major activist, but I know tons of women who are insecure enough to claim that they refused a consensual encounter rather than be seen as someone who indulged in immoral behavior. There are still more women who are modern and do not see rape as their shame, but now have the perfect weapon to attack a man they have an agenda against. Any private time without witnesses or cameras can be claimed as a rape that did not leave any sperm or injury. There are as many women who seek favor from powerful men as there are powerful men exploiting women - particularly in urban society, where a sexually forward woman is no longer a stigma. What is to prevent a woman rebuffed from accusing the man of rape out of malice? Where is the line? An over aggressive lover who mistakes necking for wanting to take things further? And really, can all this be fixed by law?

I am not saying any of this happened in the Tejpal case,, which I believe is too high priority and warped by political agendas to look at to evaluate something like this. I am speaking of a law that is absurd. In pretending to help victims of rape, it has, in effect created so much ambiguity and clutter, that the indisputable rapes and injuries and desperate circumstances now have to share already scarce resources of justice with cases that are suffering from enough ambiguity to turn the whole public view on rape as a fuss made by women.

On the other hand, it is perfectly legal to marry a sixteen year old and rape her every night onwards for the rest of her life.That is how freaking lost our "women's rights" are in terms of gravity of crime and priorities in reform.

I fail to see how this helps women at large.

In our idealistic chase of the perfect laws where the slightest wrongs to women meet perfect justice, we have lost complete touch with an imperfect world still struggling to get justice for ghastly crimes that suffer decades long cases where victims are forced to not forget their ordeal because they could be cross examined or questioned at any point.

Nor is it unclear why a woman grabbing at a man's crotch isn't engaging in rape then. Are we saying that men are always asking for it and women never have sex they regret later? Are we really peddling the view that women never make bad choices on sex that they try to cover up or deny later? Why are we still catering to the "Sati Savitri" image of the woman? Why is this patriarchal, patronizing and insulting view of women being peddled by those fighting for their rights?

A guest post by @shivoahm

The Delhi gang rape case shook the nation. Today morning, on 30th December, 2012, as I write this article, her dead body is in ashes. A 23-year old girl full of hope life forcibly pushed towards rape and death. A family who nurtured her for years, provided for her education with their limited resources, and prepared her to take on the family’s financial responsibilities suddenly now left wondering how this could have been avoided. As a citizen, each of us shudders to think this could easily have happened to my wife, or my sister, or my mother, or my girlfriend. Or if you’re a woman, it could have happened easily to yourself.

And yet, this is not an isolated incident. In the last few days, anyone who is watching news would have got imprinted in his/her mind this statistic that every 22 minutes a woman is raped in India. In 2011 alone, there were more 24,000 cases of rape reported across India. Next victim could be a 3-year old kid playing in her neighborhood or a 70-year old woman found alone. The victim could be in one of the mega-cities or somewhere in rural India, Bottom line is, NO ONE IS SAFE.

Incodence of Cognizable crimes in india 1953-2007

(Source: Wikipedia)

Number of rapes in 2010

Stricter Punishment for rape?

More surprising than the rapes is the fact that this huge statistic of rapes happens to be in a country like India where the rape laws are one of the harshest. (See table below for amount of punishments for rape in various countries).

CountryRape Punishment
United StatesMaximum sentence is life imprisonment, which could be equivalent to 30 years in jail. Severity of punishment based on factors such as use of violence, victim’s age.
ChinaMaximum punishment is the death penalty. But rape within marriage is still not criminalised, which is the case for many other countries, including Inida.
South AfricaMaximum sentence of 20 years in prison. But criminal procedure act now also includes oral and other forms of sexual violation.
Saudi ArabiaInvites prison terms, Lashing and floggings and even death penalty under Shariah. Most Muslim countries also punish rape victims for ‘illicit sex’.
IndiaMaximum punishment is life imprisonment for gangrape, 10 years for rape. Rape laws aren’t gender-neutral. Debate on to widen rape definition to include all kinds of penetration

Let’s get it straight, people. We already made laws as strict as anyone in the world. Even stricter laws have not given us the results. There has to be something more to be done, much more merely making even more strict laws.

Also, when we are talking about stricter punishments we have to consider that the conviction rate of the rape cases is the lowest in India. The stricter punishment is not giving any benefits if there is no conviction at all.

These days, every politician talks about making rape laws stricter and then someone in the government would then compare the existing laws to other countries and conclude that we already made the laws stricter. If we made them any stricter, we should reach Taliban or Saudi Arabia style justice in India itself. This isn’t wrong statement, but this is only half-side of the story!

Iceberg-of-a-rape

More than the number of cases of sexual assaults that gets reported; much higher number of cases of rape and sexual assault cases go unreported. While, factually speaking, there can be no accurate number of sexual assault cases that were not reported at all. A few statements from the experts on this topic would be useful here, I thought.

Delhi-based psychologist Rajat Mitra, who heads Swanchetan that actively works on this issue, says: "People from the upper class and the middle class do not report rape cases. It is mostly the people from the lower class that come out to seek police intervention." It is estimated that as many as 90 per cent of the rape cases actually remain unreported.

As many as 60 per cent of the rapists were neighbours, 16 per cent were friends/boyfriends and 11 per cent were relatives. Only two per cent of the cases involved strangers. It is worrying that the crime against women is growing as percentage of total Indian Penal Code crimes, with about 21,000 cases of rape reported in India in 2007, growing at the rate of 7 per cent. Of this, 405 cases were that of incest.

To get an international outlook on this, let’s see what the British authorities say about unreported rape cases.

Keir Starmer, the Director of Public Prosecutions, says that convictions for rape have reached record levels but the true number of offences is far greater. He said that while more than 300,000 women are sexually assaulted each year, only one in 10 victims of a serious offence reports it to the police.

Why rape cases go unreported?

In the Indian context, there are multitudes of reasons why the cases go unreported.

The social stigma attached with rape and sexual assault in a patriarchal society is too big to bear by a girl/woman or her family. Hence silence is more comfortable than going through the ordeal. 94% of the rapes are committed by someone known to the victim. So social pressure forces the girl to be silent.

We have all seen or heard the incidents where the police convince the rape victim to not report the crime. Recently on a TV sting, senior police officers were caught on hidden camera talking about survivors, saying: "She asked for it”; "It's all about money"; "They have made it a business"; "It's consensual most of the time". In the sting, several police officers in over a dozen police stations were caught on spy cameras blaming everything from revealing clothes to having boyfriends or going to pubs as the main reasons for rape.

See the sting operation video below which tell the mindset of Police in India

http://www.youtube.com/share_popup?v=jqlz0795gUg

And every such time when we see such attitude, we ask the question: Do the Police really not see that the girl has been assaulted?? Or they don’t want to see it?

When I scratched below the surface, I noticed how the police is appraised while reporting to the government. The key parameter is the number of cases reported in each district or each police station which denotes the level of crime in the area. The Police officers are often under pressure not to register cases on account of political pressure from ruling parties keen to show that the law and order situation in their states is not bad. It does not matter which party comes to power, there is a constant pressure not to report the cases.

As a result, the police would try to somehow dissuade her from reporting an FIR. They would verbally insult and humiliate the victim. The threats from the rapists to the victim are ignored by police. There are cases where they force/suggest a marriage between rapist and victim. All this happens only because it helps them save their face in front of government and the media. And of course it saves them the trouble of filing the FIR, solving the case, and catching the rapists. In other words, they are ingrained to be apathetic!

To add to it, if there is less than 30% conviction rates of sexual assault cases, people will tend to lose faith in the system and not report things at all.

The medical procedures to verify the rape are very old and often add to stigma. I am quoting a report by a Human Rights group in India.

Rape survivors in India are still being subjected to controversial forensic examinations including the so-called “finger test”, says Human Rights Watch in a report published today. The author of the report told RNW that the practice is unscientific, degrading and leads to rape victims being abeled “loose women”.

The test is used to determine whether a rape survivor is sexually active, or as officials often state, ‘habituated to sexual intercourse’. It involves a doctor inserting one or two fingers in a rape victim’s vagina to determine the presence of the hymen and the ‘laxity’ of the vagina. If two fingers can pass, an examiner will often use this as proof that the woman is sexually active.

The test has been widespread since the mid-20th century. Its use dropped off after 2003 when India’s evidence law was amended to prohibit the cross-examination of rape victims based on “their general immoral character”. However, according to the HRW report, the test is still described in some medical jurisprudence textbooks and used in many cases.

The author of the report, Aruna Kashyap of Human Rights Watch India, told RNW that the test is often used to label victims as ‘loose women’, which makes it less likely that their attackers will be prosecuted “It’s humiliating for a woman to be identified as being ‘habituated to sex’ as it will be difficult for her to have the police take her complaint seriously”, she says

A former chief public prosecutor is quoted in the report as saying that “the finger test is relevant for the defence especially if the [rape victim] is unmarried. If the medical report says that two fingers have passed, the defence can show that she’s habituated [to sex]. This shakes the testimony of the victim”.

How Iceberg grows?

Now that we know that iceberg exists, let’s see how the iceberg grows. Try and imagine how a thief would react if he commits a huge theft and is never caught because there is “stigma” attached to reporting a theft. Yes, he would commit even more big thefts. Or let’s say a bully, if he comes to know that the victim would face stigma if he/she comes out and say he was bullied. Wouldn’t he/she bully even more? I am guessing the same mentality would that be of a rapist. If he is let go once, he would commit this crime once again and again, with another woman, another gal. Even in a developed country like Britain, the chief government officer says that the 9 out of 10 rape cases are unreported.

How Iceberg Grows

I can only imagine the situation of a country like ours where the stigma and khap panchayats add to the problem. The more the rapes go unreported, the more the iceberg grows further.

Breaking the cycle of “Iceberg-of-a-Rape”

The way to break this cycle is separate the “FIR reporting of case” and the “solving of rape case”. Police don’t register the FIR because they want to show lower numbers. Rapist might be a local strong man who has contacts in police and will prevent the registering of FIR. (See the website of Association for Democratic Reforms to see how many MLAs, MPs are facing rape charges). So the local strong man will also try to stop the rape victim from reaching the police station.

We have to make the reporting of FIRs for rapes to be done through 24-hour phone helplines managed by a social organization. Any woman can report the rape incident in the privacy of her own home and while talking to another woman on the phone. The phone discussion can be recorded and presented in court as evidence. Later a medical test in a hospital can be done based on the FIR number generated after this discussion.

The benefits of this process would be that-

  1. Victim will not be traumatized by talking to police. Police cannot stop the reporting of rape case
  2. Victim does not need to take permission from her father/mother or family before registering rape. The family cannot bring social barriers and prevent her from reporting. This is very important in cases where the rapist is known to the family and family resists going to police and asks victim to be silent and keep distance from rapist.
  3. Victim can get legal and medical advice from experts as soon as possible and anonymously.
  4. Independent NGO, which is not funded by government can track the number of rape cases. So the government cannot suppress the numbers and try to give a wrong image to citizens that “things are fine” when in actual sexual assault cases are on the rise!

The new process would be-

  1. The woman can call the helpline and report rape. She gets FIR registered through 24-hour phone helpline and she can get the FIR number. She submits the evidence through couriers etc.
  2. The medical examination can be done in a hospital based on the valid FIR registered number, without involvement of police till now.
  3. The medical report and the FIR number can be given to the police by the helpline after it has been registered.
  4. The benefit is that police cannot under-report the heinous crime in any way. And they are checked on how they are performing on the registered cases.

I have read a lot of articles suggesting that could be a mandatory filing of reports by police. And they can be penalized if the reports are not filed in immediately. I think this process will not work in India, given the level of mismanagement in Indian government police stations. Police stations will still not report rapes until some collector personally pushes them. This process of mandatory registering a complaint would simply force the victim to cry in front of collector instead of crying in front of the police officer and nothing else changes! So I would not recommend that.

Implications of separate FIR registering process

The immediate implication of making the registering of rape outside of police’s responsibility would be that there would be a huge visible spurt in number of rape cases reported. All the cases which are going unregistered will come to light.

The government and police would be under huge pressure to work on this and hence police and government ideally want to keep registering process within the government itself so that they can control it and hence control the public sentiment about rapes!

Ideally, a non-government funded NGO which is funded only by the women should take up this responsibility to set up a 24-hour help to register rapes and help with medical examination.

The most visible and important change would be that the rapist who thought he can go scot-free because the rape victim will never report or will never be heard, will for once think that he cannot go scot-free. Rapist or his friends cannot track if the victim physically and ensure that rape is not reported.

If we act together we can take that bully down.

It’s high time our women are given the respect that they deserve. This is the least we can do for the victim of Delhi Gang rape. This would be a true homage to that brave soul!

You can send your suggestions at Twitter (@shivoahm)

Sources:

Excerpts from a Book by SN Chaudhary-Human Rights and Poverty in India

http://infochangeindia.org/human-rights/books-a-reports/indian-police-a-law-unto-themselves.html

http://www.aljazeera.com/indepth/features/2012/12/20121228124356833971.html

http://indiatoday.intoday.in/story/The+iceberg+of+rape/1/46911.html

http://tehelka.com/the-rapes-go-on-how-do-we/

http://www.am2pmnews.com/world/india-world/comparison-of-indian-rape-law-to-rest-of-world.html

http://www.rnw.nl/english/article/india%E2%80%99s-rape-victims-face-degrading-examinations

http://www.dailymail.co.uk/news/article-2177524/Director-Public-Prosecutions-Keir-Starmer-Nine-rapes-unreported.html