April 28, 2014 Articles

Obstacle in Indian Law Reform Addressing Sexual Assault of Women

India has been ranked the fourth-most dangerous country in the world for women.

By Anannya Tripathy

India has been ranked the fourth-most dangerous country in the world for women, with women subject to atrocities such as gang rape, sexual assault, and harassment every day. According to a recent statistic from a United Nations panel, in India, “every 60 minutes two women are raped, and every six hours a young married woman is found beaten to death, burnt or driven to suicide.” Despite the high rate of incidents reported, very few cases are investigated. Even fewer result in a conviction. Of the 706 rape cases filed in 2012 in New Delhi, 64 were recorded by the police. Of those 64 recorded cases, only four of those cases were investigated by the authorities. Of those four cases that were investigated, only one resulted in a conviction. That one case involved a 23-year-old medical student who died after being tortured and beaten with an iron rod and gang-raped by five men on a bus in New Delhi. The international uproar following the gang rape led to an investigation of India’s criminal-justice system, which exposed a shocking culture of indifference toward rape victims.

Following the incident, protestors demanded better security for female commuters, more accountability from law-enforcement and government officials, and harsher punishment for perpetrators. At the heart of the matter was India’s law-enforcement system, which was found to be inadequate in preventing and handling matters of sexual assault. As of 2010, India, with a population of approximately 1.2 billion, maintained 129 police officers per 100,000 people, with the global average at approximately 350 officers. There was also a dearth of female officers available to file reports or respond to rape cases, as female police officers constituted only 5 percent of India’s total police force.

Government officials responded to the many protests with the passage of several new sexual-assault laws. As of April 2013, the Indian Penal Code, Criminal Law (Amendment) Act 2013, section 376A, broadened its very narrow definition of rape. The penal code created a minimum sentence for rape of 7 years of imprisonment and 10 years in cases of aggravated rape. In either scenario, monetary fines and a life-imprisonment sentence are also possible sanctions. There is also a mandatory minimum jail sentence of 20 years instituted for perpetrators charged with gang rape. For the first time in Indian history, the possibility of the death penalty exists for perpetrators involved in cases of rape where the victim dies or is left in a vegetative state following the incident. Stalking and voyeurism have also been criminalized, with a minimum sentence of one year in jail and a maximum sentence of seven years in jail, respectively. The modified Indian Penal Code also clarified that the lack of physical resistance on the part of the victim is immaterial for constituting an offense.

The reforms following the 2012 New Delhi gang-rape case also appeared to have had an effect on the willingness of rape or molestation victims to report the crimes, as police records indicate that during the final nine months of 2013, almost twice as many rape victims filed police reports and four times as many allegations of molestation had been made than earlier in the year. The newer laws present a colossal progression for India’s criminal-justice system.

India also sought to reform the legal process and created six new “fast-track” courts established solely for rape trials. Unfortunately, these courts have proven unsuccessful in comparison with their predecessors, having been able to dispose of only 380 cases by August 15, 2013. By contrast, “regular” courts disposed of 650 and 547 rape cases, in 2011 and 2012, respectively. Additionally, India has roughly 12 judges per million in the population. (In comparison, America has 50 or 55 judges per million.) It is generally estimated that large, developing countries need approximately 60 judges per million, which means India currently has one-fifth the number of judges it ought to have. As a result, India’s courts remain overburdened with cases, which undoubtedly makes it more difficult for them to accomplish their ultimate goal of speedier trials for victims of rape. Therein lies the major problem afflicting the fast-track courts, as well as India’s society at large: the overwhelming number of rape and sexual-assault cases.

India has made great steps; however, there is still more work that needs to be done to address the obstacles to true reform. The reported remarks and reactions of certain officials to rape victims have revealed a culture of shaming and shifting blame to victims and otherwise belittling their experiences. In one prominent case, the home minister of Madhya Pradur attempted to shift the blame onto a Swiss tourist for her rape, stating that she was at fault due to not having informed the police of her travel plans beforehand. There have been a number of reports that state that police attempt to pressure rape victims to drop charges or otherwise intimidate them. Additionally, there have been reports that police have arrested a number of rape protesters, allegedly detaining some for over eight hours and even assaulting one.

These underlying views about women, sexual assault, and a pattern of victim blaming are not limited to government officials. Interviews of many Indian men reveal the belief that many victims of rape are responsible for the actions of their assailants. Men cite a number of ways in which a woman could potentially “invite” rape by behaving flirtatiously, wearing revealing clothing, or being out at late hours of the night.

Further, although the Indian constitution technically grants women and men equal rights, strong, centuries-old patriarchal traditions continue to be observed in many parts of the country, which impacts the quality of life for women in those areas. It should be noted that in India, the treatment of women differs from one societal stratum to another, with some areas being more inclined toward gender biases and disparities than others. While women’s rights are improving in India’s educated, urban middle-class locations, gender bias remains an issue in many rural areas of India, where patriarchal traditions prevail and override laws. The enforcement of the law may continue to be challenging in these parts of India, where these traditions and the mindsets they can create can evade governmental jurisdiction.

Keywords: litigation, access to justice, rape, gang rape, India, Delhi gang rape case, reform, fast track courts

Anannya Tripathy received her bachelor of arts degree in psychology from Temple University in May 2012. Since her graduation from college, she has been working as a paralegal in the Juvenile Court Unit of the Philadelphia District Attorney's Office and volunteering with ActionAIDS, an organization in Philadelphia that assists individuals living with HIV/AIDS.

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