Human Rights Watch: Reform Sexual Assault Laws, Treatment of Survivors
The
death on December 29, 2012, of a 23-year-old student who was gang raped
and assaulted should spur decisive action by the Indian government to
combat sexual violence, Human Rights Watch said today. The attack
catalyzed massive nationwide demonstrations and reopened public debate
about reforming India’s inadequate laws and practices concerning sexual
assault.
The woman, a paramedical student whose name has not
been made public, and a male friend were traveling in a private bus in
New Delhi on December 16 when five men and a youth under 18 raped and
assaulted her and beat her friend. The woman suffered severe injuries
and was transferred to a hospital in Singapore, where she died. The
police have arrested the accused and are expected to file charges in the
first week of January 2013.
“This murderous gang rape is a
sobering reminder of the pervasive sexual violence that women and girls
across India suffer,” said Meenakshi Ganguly, South Asia director. “The
government needs to act now to prevent sexual assault, aggressively
investigate and prosecute perpetrators, and ensure the dignified
treatment of survivors.”
The New Delhi gang rape highlighted the
widespread problem of sexual violence in India, Human Rights Watch
said. According to the National Crime Records Bureau, 24,206 rape cases
were registered in India in 2011, and experts say the number of
unreported cases of sexual assault is much higher.
Following the
New Delhi attack, the Indian central government formed a three-member
commission headed by former Indian Supreme Court Chief Justice Jagdish
Sharan Verma, to “review[] the present laws so as to provide speedier
justice and enhanced punishment in cases of aggravated sexual assault.”
While the government’s swift action to create a commission to review
punishment for aggravated sexual assault is an important step, reform of
the criminal law and procedure, plus improved treatment of survivors,
is needed to ensure justice for sexual assault victims, Human Rights
Watch said.
Strengthen Mechanisms to Implement Laws and Support Survivors
The
Delhi gang rape reflects a much larger problem of sexual violence in
India, Human Rights Watch said. While officials responded swiftly and
promised speedy justice, the attack followed numerous reported sexual
assaults in the country, including against women with disabilities and
dalits. For example, on December 27 the media reported that a girl in
Punjab committed suicide a month after she was gang raped because police
were unwilling to register her complaint or arrest the accused.
State
security forces have at times been implicated in sexual assault, but
the government has not taken action against them. For example, in
October 2011 police in Chhattisgarh were accused of sexual assaultof an
adivasi teacher, Soni Sori, while she was in their custody. There still
have been no arrests and prosecutions in the alleged rape and murder in
2004 of Manorama Devi, who was taken into army custody from her home in
the northeastern state of Manipur.
In May 2012, about 90 civil
society organizations and individuals, including Human Rights Watch,
wrote to Indian Prime Minister Manmohan Singh urging reforms in
responses to sexual assault and calling for greater police
accountability. The groups called on the Indian central government to
constitute a high-level task force to develop a coordinated response to
gender-based violence, especially sexual assault; instruct state
governments to monitor police handling of sexual assault reports and
investigations, and hold accountable officers who mishandle their
duties; and fund an existing scheme for financial assistance for rape
victims and monitor its implementation.
The level of care –
including counseling – provided to the New Delhi gang rape victim and
her family, demonstrates that political will can ensure support and care
for victims of sexual assault, Human Rights Watch said. But this only
followed public outrage and demonstrations after the attack. Human
Rights Watch research has found that survivors usually find it difficult
to register police complaints, and often go from one hospital to
another even for a medical examination, and often report suffering
humiliation at police stations and hospitals.
India does not
have a uniform protocol for medical treatment and examination of
survivors of sexual assault, making responses ad hoc and unpredictable,
and in the worst cases, degrading and counter-productive. This is
reflected in the continued use of the so-called “finger test,” which
Human Rights Watch documented in a 2010 report. While conducting medical
examinations, many doctors record unscientific and degrading findings,
which involve noting the “laxity” of the vagina or hymen, apparently to
determine whether the victims are “virgins” or “habituated to sexual
intercourse.” Often doctors, police, and judges look for evidence of
“struggle” or “injuries,” especially hymenal injuries, in the medical
examination report, discrediting those who do not report such injuries.
The
Indian government should establish national standards and a uniform
protocol for the medical treatment and collection of medical evidence in
cases of sexual assault, and to eliminate the use of finger tests on
sexual assault survivors, Human Rights Watch said.
“The Indian
government needs to adopt and enforce measures to ensure the dignified
treatment and examination of sexual assault survivors,” Ganguly said.
“Dignity and accountability should underscore the police and medical
responses to sexual assault throughout India.”
Urgent Need for Comprehensive Law Reform on Sexual Assault
Indian
civil society organizations have long called for laws on sexual assault
to be reformed. Under current criminal law, India does not have a
general definition of sexual assault. It only defines rape (penile
penetration), “outraging the modesty” of women, and “insulting the
modesty” of women. Indian law does not recognize the offense of marital
rape.
It is especially difficult to prosecute members of the
security forces implicated in sexual assault and other human rights
violations. The Armed Forces Special Powers Act provides effective
immunity to members of the armed forces who are accused of sexual
assault and other abuses. Section 197 of the Criminal Procedure Code
provides effective immunity to police and other security forces by
making it mandatory for a prosecutor to obtain permission from the
government to initiate criminal proceedings against public servants.
The
Criminal Law (Amendment) Bill, 2012, which was introduced in the lower
house of the parliament on December 4, introduces a definition of
“sexual assault” but limits it to all forms of penetrative sexual
assault. Rights groups in India have, however, consistently pressed for a
comprehensive definition of sexual assault, which includes both
penetrative and non-penetrative forms of sexual assault. Instead, the
bill retains the archaic definition of “outraging the modesty of a
woman” to cover all forms of non-penetrative sexual assault and
harassment. It does not introduce any special procedural protections for
survivors who report sexual assault by police officers or members of
the armed forces.
“Law reform efforts should be comprehensive
and minimize the risks and delays that sexual assault survivors now
endure,” Ganguly said. “Police officers, soldiers, politicians, and
civil servants should not be above the law for sexual assault or
anything else.”
Death Penalty Not the Solution
After the
December 16 gang rape, high-level government officials announced that
they will pursue harsher penalties for rape, including the death
penalty. Human Rights Watch opposes the death penalty in all
circumstances as an inherently irreversible, inhumane punishment. A
majority of countries in the world have abolished the practice. In 2007,
the United Nations General Assembly passed a resolution by a wide
margin calling for a worldwide moratorium on executions.
“For
politicians, supporting the death penalty is an easy but ineffectual way
out,” Ganguly said. “It is much harder, but more effective, to revamp
the response of police, doctors, forensic specialists, prosecutors, and
judges to sexual violence. Survivors deserve an effective, coordinated
response to sexual assault.”
Human Rights Watch Press release
