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Rape laws: Walk the Talk

Jaswant Kaur Jaswant Kaur
07 Nov 2022
“Rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity.”

A decade is almost over since the 23-year-old physiotherapist was brutally gang-raped inside a moving bus on December 16, 2012 in Delhi. Two weeks later, she died in a hospital in Singapore. Yes, in another month, Nirbhaya case will be 10 years’ old. The incident led to a huge public outcry. People took to the streets, protesting and mourning the death of the girl, who was named Nirbhaya (the fearless). Pressure from all corners forced the government to make several amendments in the laws relating to sexual offences.

The Criminal Law (Amendment) Act 2013 came into existence. The definition of rape was widened and it was made a non-bailable offence. The jail term for most sexual assaults was increased. Not only this, but provision of death penalty was also created in cases where the rape caused the death of the victim or left her in a vegetative state.

Fast-tack courts were set up for speedy trial of rape cases under the Indian Penal Code. However, despite these courts, rape victims continue to be harassed. The conviction rate continues to remain low. Even in Nirbhaya’s case, the fast-track court convicted the accused in less than nine months and four adult convicts were sentenced to death in less-than one month. However, the cumbersome procedures in the higher courts delayed the execution of the sentence.

A part of the legal reforms made the denial of medical treatment to the rape survivor a punishable offence under Section 166B of the Indian Penal Code with an imprisonment of one year. Not only this, the Ministry of Health and Family welfare issued new guidelines in 2014 for standardisation of forensic tests for establishing rape. Yet, the controversial two-finger test continues to harass the rape victims, violating their privacy, stigmatising them and subjecting them to judgements by people, who have set their own definition of establishing rape.

Last week, the Supreme Court came down heavily upon this practice of conducting the two-finger test. Now, what is this two-finger test? It is a test involving insertion of two fingers into the woman’s vagina to assess the “laxity of vaginal muscle and examine the hymen”.

Imagine the rape victim, who is already going through pain and trauma! She is subjected to such a test. The test is done to establish whether the rape victim is sexually active or not. The practice is called per-vaginal examination in medical terminology. It is not only conducted on rape survivors but also otherwise. Unfortunately, whether the victim is sexually active or not has no bearing on her being raped. After all, consent is all that matters to establish rape.

It is a fact that a hymen can be torn and its orifice may vary in size for reasons other than sex. The two-finger test is based on the belief that a torn hymen indicates a sexually-habituated woman and, therefore, cannot be raped! Or the victim is making false claims of rape!

Calling the test as “patriarchal and sexist in assumption”, the two-judge bench of Justices D Y Chandrachud and Hima Kohli held that the test should be banned and those found to be conducting it shall be held guilty of professional misconduct. The court also restored the conviction of the man who raped and murdered a minor girl in Jharkhand in November 2004. The girl was set on fire, as she tried to save herself from the sexual assault. During the examination, she was subjected to a two-finger test.

The court held that whether a woman is ‘habituated to sexual intercourse’ or ‘habitual to sexual intercourse’ is irrelevant for the purposes of determining whether the ingredients of Section 375 (rape) of the IPC are present in a particular case. “It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active”.

Well, this is not the first time that the court has banned this test. In fact, immediately after the Nirbhaya case, in 2013, in the case of Lillu & Rajesh vs State of Haryana, the test was banned. While referring to the International Covenant on Economic, Social and Cultural Rights, 1966 and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, the court held that “rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity.”

The veracity of the two-finger test was questioned in several cases even before 2013. The Justice Verma Committee constituted after the Nirbhaya case too had given recommendations for scrapping the two-finger test. Consequently, the government amended the medical guidelines and recommended using rape test kits for collecting forensic evidence. These kits include sterile swabs and syringes and are based on WHO guidelines.

However, these guidelines are recommendatory in nature. They are not legally binding. Media reports suggest that only a few states have started using these kits. In the absence of these kits, two-finger tests are being conducted, violating the privacy and dignity of the rape victim. Not only this, many medical doctors and police personnel are even not aware about the existence of such kits nor have they been given adequate training to administer these kits.

In an incident in the Lakhimpur Kheri district of Uttar Pradesh in March, the rape victim was asked to buy rape kit herself, eight months after she was raped! In fact, the victim’s family had to run from pillar to post to get the rape kit, which was available at the nearby Community Health Centre. The medical doctor available at the community health centre, initially refused to conduct the test, simply because his duty hours were over. 

The family was asked to buy the kit from the CHC for Rs. 1200. Ultimately, the village Pradhan helped them in buying the same kit for half the price. After the examination, the doctor demanded Rs. 500 as his consultancy charges. Not only this, the ward boy wanted Rs. 200 as his seva. The incident shows the sheer apathy of the authorities concerned towards a minor girl, who was raped.

Eight months after the rape, what kind of purpose the rape kit would have served to establish rape? This is just one incident. Every time a woman is raped, the victim is blamed for the heinous crime that a man or a group of men commits in an act to satiate his/their sexual desire.

We as a country have come a long way as far as laws relating to rape are concerned. In fact, a recent ruling has also given a right to get the foetus aborted, in case a married woman becomes pregnant because of marital rape.

Unfortunately, most of these legal provisions remain on paper. They are hardly implemented in letter and spirit. No wonder, crime against women is on the rise. Our medical curriculum continues to propagate old techniques and methods. But who cares?

The Nirbhaya fund that was created to support rape victims, enforce legal provisions, implement projects for promoting women safety, has met with the same apathy as the rape victims are subjected to. The fund has been used for constructing routine infrastructural requirements under various ministries. Earlier this year, a parliamentary panel noted that out of the allocated funds of Rs. 9,549 crore, only Rs. 4,241 crores were released and Rs. 2989 crores were utilised, that too for purposes other than what it was formed. Interestingly, a significant portion of the earlier allocations went to the Union Home Ministry, of which only 9 percent was actually utilised!

How can we expect a safe environment for women? No wonder, imposing death penalty, did not bring the kind of results that were expected. Rape cases continue to rise so is the indifferent attitude of the authorities towards rape victims.

Our elected representatives have been garnering votes in the name of promoting women’s safety and protecting their dignity. It is high time to walk the talk.

(The writer, a company secretary, can be reached at jassi.rai@gmail.com)

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