India's daughters are hurting but their screams are in vain. A 2019 report by the National Crime Records Bureau (NCRB) found that a woman is raped every 16 minutes in India - an ugly reflection of how India has failed to make women, that constitute half of the country’s population, feel safe. Even after Nirbhaya, rape has been rampant across the country and Indian women don't feel any safer on the streets than they did before the case.
Due to the sheer number of rape cases that emerge every day, people tend to become desensitized to it and after shedding a few tears for the victim, move on from it. However, the recent Hathras gang-rape and murder of a 19-year-old Dalit woman has again brought the issue to the forefront and led to public protests across the country.
Despite the outrage, U.P police are denying the gang rape of a Dalit girl in Hathras
The girl was allegedly raped by a group of four upper-caste men in Uttar Pradesh on September 14. Unfortunately, due to the severity of her injuries, she succumbed to them and died at Delhi's Safdarjung Hospital on Monday during treatment.
People, already in shock after learning of the crime, got even more outraged when the UP police trashed the sexual assault claim by the rape victim and claimed that it wasn't a rape case after all.
To justify their claims, the police cited a forensic lab report that said that no traces of sperm has been found in the samples taken from the victim's body. However, the report's credibility has been questioned as the samples were taken eight days after the assault when they were supposed to be taken within 72 hours of the crime.
On the same day that the 19-year-old woman died, another 22-year-old woman also passed away unable to recover from severe injuries after being allegedly gang-raped on Tuesday.
Both the women were identified as Dalits, the lowest-ranked caste in India's caste system, and belonged to Uttar Pradesh. Despite, laws prohibiting caste-based discrimination and violence, lower-caste Indians still experience traumatic discrimination in the country.
Despite, the Dalit woman experiencing injuries on her private parts, the UP police is hard-bent on sticking to the no-rape narrative due to no evidence of semen found in the forensic report. But other experts argue that semen isn't the only indicator of rape.
Is the presence of semen the only indicator of rape in India?
A former UP police chief, who wished to remain anonymous, told the Indian Express," It is obvious that UP police have jumped to conclusions. As per law, the so-called absence of semen is not enough to conclude that the woman was not raped, especially when we know there were injuries to her private parts."
A T Ansari, who was a special prosecutor in the Nirbhaya case, added that the existing law has changed the definition of rape and it has also done away with the two-finger test used by doctors on victims to establish rape." Additionally, sexual intercourse isn't the only requirement for registering the event as a sexual assault but applying mouth or touching private parts has also been classified as offenses involving sexual assault.
To understand what constitutes crimes against women, let’s take a look at the changes our government has made in recent years.
Changes in India's anti-rape laws after Nirbhaya
On December 16, 2012, a 23-year-old physiotherapy intern, Jyoti Singh was brutally gang-raped in a moving bus. This horrific gang rape led to widespread protests around the country and the people demanded radical changes in the law which led to a reformation of anti-rape laws in India. You can view the official Criminal Law (Amendment) bill here. However, here a summary of the key reformations or amendments:
1. It led to an evaluation of existing laws regarding crimes against women and then to a striking realization that harassment crimes such as stalking, acid attacks, and voyeurism were missing from our legal framework. So, acid violence, disrobing and spying on a woman when naked, or distributing her inappropriate pictures without her consent became crimes in 2013.
2. The new laws also expanded the definition of rape and said that the absence of physical struggle doesn't equal consent.
3. The amendments of 2013, in the Indian Penal Code, the Code of Criminal Procedure, and the Evidence Act criminalized the failure of a public servant to register complaints by sexual violence survivors or a rape victim. Additionally, it has also made the non-treatment of a rape victim by any public or private hospital an offense.
4. The procedures for collecting evidence and going for a court trial are less harrowing for women now. For example, the invasive and incorrect two-finger test has been done away with.
5. By Indian law, all healthcare providers must now give survivors of sexual offences or acid attacks immediate medical care free of cost.
6. There is also a legal provision for compensation for sexual assault and sexual harassment victims but the government hasn't set up systems to execute this promise. In 2019, the Supreme Court had ruled that rape victims should receive a mandatory minimum compensation of 4 lakhs and 5 lakhs in the case of gang rape.
A national survey found that only one per cent of minor victims in sexual assault cases get compensation - a colossal failure of the implementation of the SC’s judgment.
Current Anti-rape laws in India, post-Kathua rape case
In 2018, India was heartbroken and shook to its core when reports emerged of an 8-year-old girl in Rasana village near Kathua in Jammu and Kashmir who was abducted, raped, and murdered by a group of men. Unsurprisingly, the news led to nationwide protests and calls for harsher punishment for perpetrators.
This led to amendments and the addition of new sections to the IPC:
1. The government passed the Criminal Law (Amendment) Act, 2018 which allowed the death penalty as a possible sentence for the rape of a girl under 12 years and the minimum punishment is 20 years in jail.
2. The rape of a girl below 16 years became punishable with a minimum imprisonment of 20 years which may extend to life imprisonment.
3. Also, the minimum jail sentence for rape, which had remained the same since the introduction of the IPC in 1860, was increased from seven to 10 years.
Even after the amendments and additions, India's anti-rape laws' success is questionable
India's highest legal authority, the Supreme Court had declared in 2017 that the changes in anti-rape laws after the Delhi gang-rape case haven't made a significant difference and in fact, rape cases only seem to be rising. The court had based its conclusions on data sought from States and Union Territories.
"Post-Nirbhaya, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, the statistics would reveal that desired results could not be achieved," a three-judge bench, led by Chief Justice SA Bobde, said, taking up the matter suo motu (an act of authority taken by a judge taken without a prior motion or request from the parties).
In most cases, public anger and protests become the focus of the case, while evidence collection, the investigation into the rapist, and case judgment are delayed or botched due to inefficiency.
The Hathras rape case is a prime example of it. The evidence collection was delayed, the victim's family was denied the right to pay their last respects to their daughter and now, UP's CM Yogi Adityanath has hired a PR team to assert the claim that it wasn't a rape case. This is despite the fact the victim admitted that she was raped while on her death bed.
Public anger and vigilante justice aren't a sustainable alternative to legal procedures
Public outrage and anger are rightful and powerful ways of demanding justice, however, it lacks the actual means of bringing justice to the victim and their family. Tired and frustrated with the daily sexual crimes in the country and the Indian government's incompetence to handle them, some people would rather settle for vigilante justice.
For example, you may remember the gang rape and murder of a 26-year-old veterinary doctor Disha in Hyderabad and the subsequent encounter that led to the deaths of the four accused.
Many Indians celebrated the police officers' actions and quick way of providing justice. A low conviction rate and the hiccups in our judicial system are making vigilante justice appear as a more effective option.
Even though, in the IPC, harsher penalties exist for severe rape cases but civil society activists complain that these laws aren’t implemented timely. "People often say a tough law can bring about change. But what is a tough law? Law needs to be effective and the investigating agency and prosecution more proficient and efficient. That is a dire need," Seema Misra, a lawyer who works on women's rights issues, told DW.
A death sentence doesn't deter rape, instead, it lowers the conviction rate
Following the Kathua rape case, India's lower house of parliament had passed a bill that stated that the death penalty will be handed out to anyone convicted of raping a child under 12. This was part of the amendment to the Prevention Of Child Sex Offences (Pocso) act made at the behest of Women and Child Development Minister Maneka Gandhi, who believed this would deter sexual crimes against children.
Experts think otherwise as according to them, imposing the death penalty for rape can disincentivize the system from handing out convictions.
Zainab Malik, of the Lahore-based not-for-profit legal rights firm Justice Project Pakistan, told the BBC, "Even though under the law, rape is treated on a par with terror, nothing has changed. Rape and gang-rape cases are progressively increasing while conviction rates remain abysmally low."
From her experiences, she has observed that "police are biased against women and are hesitant to even register cases of gang rape as that would mean the death penalty for a group of men. To circumvent that, often the case would be registered against one man only."
Even if the case reaches the court, judges might discern the death sentence as too harsh and thereby increase the chances of acquittal. So, instead of capital punishment and longer sentences, we should demand certain and swift justice along with a higher conviction rate.
What's missing from our fight against sexual violence faced by Indian women?
Apart from quicker and more efficient implementation of anti-rape laws, the focus needs to be shifted to the rape victims and if the system is sensitive enough to cater to their needs.
A study found that most rape victims who are women prefer to be seen by a female examiner and more empathetic professionals. Unfortunately, rape victims in India are forced to deal with examiners, police officers, and lawyers who are apathetic men. The healthcare system and legal system needs to have a more humanistic approach to sensitively deal with the trauma of the victim.
Other changes that women’s groups are demanding for is to create a women-friendly atmosphere on the streets. Kavita Krishnan, secretary of the All India Progressive Women's Association (AIPWA) in New Delhi, talks to Al Jazeera about making the streets safer for women by, for starters, having better street lights. Women should feel comfortable to approach institutions when they’ve been assaulted - this, she says, can only happen if the police and judiciary show a gender-sensitive and empathetic response.