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INTRODUCTION
The term sexual violence is often used interchangeably with the terms sexual assault
and rape in general parlance, however, their legal meaning as well as legal implication differs
due to difference of elements and ingredients attached to them. Out of all the term Sexual
Violence is the broadest that refers to a constellation of crimes including sexual harassment,
sexual assault,incest, sexual abuse, molestation, rape and so on an so forth. ( National Institute of
Justice, 2010). Many theorists suggest a number of factors resulting into sexual violence but
modern feminists and activists especially in Indian scenario; draw a connection between sexual
violence and patriarchy. It has been constantly argued that sexual violence is not a crime of
passion but a crime of violence, using sex as a weapon to overpower and degrade the victim. In
her book, Against Our Will, Susan Brownmiller argued that rape is a tool of intimidation used by
men to control and ensure the subordinate status of women. (Brownmiller, 1993).
The deep-rooted patriarchy of Indian society lay exposed when several people, including
senior politicians, type casted the victims of sexual violence, as possibly having contributed to
the perpetration of the crime. (Himabindu, Arora, & Prashanth, 2014). Also, there is a belief that
sexual violence is a result of irresistible sexual impulses continues to dominate the thinking of
majority of the society1. According to this myth, because men have difficulty in controlling
themselves, it shall be responsibility of women to avoid "provoking" a rape that is to say they
must avoid dressing provocatively, acting in a promiscuous manner, shall not go out in public
during late in evening or night, etc.
In past 10 years official statistics by National Crime Records Bureau (NCRB) under
Ministry of Home Affairs (MHA); Report of the Committee on Crime Statistics under Ministry
of Statistics &Programme Implementation; reports in the press, etc, clearly reflects that sexual
** Professor & Chairperson, Center for Criminology & Victimology, National Law University, Delhi.
5 Preetika Sharma, Research Associate, National Law University, Delhi.
III.
In 2013, Section 53A was added to the IEA. Whenever the question of consent becomes
issue in a prosecution for sexual assault, Section 53A provides that evidence of character of the
survivor or of such persons previous sexual experience with any person shall not be relevant on
the issue of such consent or the quality of consent. Recently in Krishan v. State of Haryana,14 the
court stated that it is not expected that every rape victim should have injuries on her body to
prove that she was not a consenting party. Medical report corroborated with the testimony of the
victim is sufficient.
In Stateof Uttar Pradesh v. Chhotey Lal,15 where the trial court convicted the accused for
the offences punishable under Sections 363, 366, 368 and 376, IPC, the High Court acquitted the
accused on the pretext of delay in registering of FIR, lack of internal or external injury on body
of prosecutrix and due to the fact that she was habitual to sexual intercourse. While reversing the
acquittal, the Supreme Court made the observation that delay in lodging FIR was reasonably
explained by the prosecution and High Court failed to appreciate the same. Supreme Court also
observed that absence of injuries on the body of the prosecutrix can not form a sufficient ground
to discredit her evidence and it is wrong to assume that in all cases of rape there would be some
injury on the external or internal part of the victim.
Errors in Age Verification
10
11
observed, though the fair trial is a part of guarantee Under Article 21 of the Constitution of
India however it is well settled that fairness of a trial has to be seen not only from the point of
view of the accused, but also from the point of view of the victim and the society. Witnesses
cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive
cases such as rape cases.
Presumption under Section 114, Indian Evidence Act
Recently, the Supreme Court in Deepak v. State of Haryana,36held that, in cases of sexual
violence against women, once the prosecutrix states in her evidence that she did not consent to
12
13
14
15
V.
ofadistrictandStationHouseOfficersin-
chargeofapolicestation)arealsoprovidedaminimum tenureoftwoyears.
4. Separatetheinvestigationandlawandorderfunctionsof thepolice.
5. SetupaPoliceEstablishmentBoard(PEB)todecidetransfers,postings,promotionsandotherse
rvicerelatedmattersofofficersof
andbelowtherankofDeputySuperintendentofPoliceandmakerecommendationsonpostings
andtransfersabovetherankofDeputySuperintendentofPolice.
6. SetupaPoliceComplaintsAuthority(PCA)atstateleveltoinquireintopubliccomplaintsagains
t
policeofficersofandabovetherankofDeputySuperintendent
ofPoliceincasesofseriousmisconduct,including
custodialdeath,grievoushurt,orrapeinpolicecustodyandatdistrictlevelsto
inquireintopubliccomplaintsagainstthepolicepersonnelbelowtherankofDeputySuperinten
16
placementofChiefsoftheCentralPolice
Organizations
(CPO)withaminimumtenureoftwoyears.
In Virender v. State of NCT of Delhi,53Delhi High Court laid down the comprehensive
guidelines for the different branches of the Criminal Justice System, including Police,
recording of statement before Magistrate, medical examination, court, etc.
Also, Honble High Court of Delhi in Delhi Commissioner for Women v. Shri Lalit
Pandey and Anr.,54 passed comprehensive guidelines to be followed by the police,
hospitals/doctors, child welfare committees, courts prosecutors and other authorities including
setting up of Crisis Intervention Centers by the Delhi Commission of Women.55
As per Standing Order 303/2010 of the Delhi Police, a survivor is to be kept informed
about the progress of investigations. In case she gives anything in writing and requests the I.O,
for investigation on any particular aspect of the matter, the same is to be adverted to the I.O.
Psychological Support for Women Survivors of Sexual Assault -A Draft Tool Kit for
Health Settings
Department of Health
Research,
Ministry
of
Health
and
Family
Welfare,
Government of India had set up a Task Force on Gender and Health in 2012, which
identified two important areas as priorities in health care settings. First was the health care
response to women presenting with Partner Violence and the second was to develop Protocols for
women reporting Sexual Assault or Rape. Psychological support for women who experience
Sexual Assault was considered as one of the priorities and the need for a protocol for the same
was emphasized. Since there is no organized services for sexual assault in most hospitals and
health settings the Tool Kit hence is designed in way that any health professional can follow and
use the basic tenets of psychological support when a woman approaches the health services for
help. The tool kit has been designed keeping in view the emotional experience of rape and sexual
assault/violence to develop psychological support services for sexual assault, assessment of
health, etc. it also provides for the role of a counselor in the acute stage or immediately after
17
Specific guidance on dealing with persons from marginalized groups such persons
with disabilities, sex workers, LGBT persons, children, persons facing caste, class or religion
based discrimination.
past sexual practices through comments on size of vaginal introitus, elasticity of vagina or anus.
18
Evidence collection based on science and history, with specific guidance for
sexual violence.
The protocol also provides for Standard Operating Procedure (SOP) for management of
cases of sexual violence:
VI.
For the smooth handling of the cases and clarity of roles of each staff
19
20
21
22
23
Notes
Women
Against
Sexual
Violence
and
State
Repression.
https://kractivist.wordpress.com/2013/01/03/vaw-justice-verma/
(2013,
January
3)
Retrieved
2 National Crime Records Bureau Report. (2014). Crime in India. (n.d.). Retrieved from http://ncrb.nic.in/
3Ibid.
4Ibid.
5Ibid.
from
6Ibid.
7 Cover Story. (2014, December 20). The fatal flaw in the anti rape campaign. Tehlka Magazine. 11 (51)
Retrieved from http://www.tehelka.com/2014/12/the-fatal-flaw-in-the-anti-rape-campaign/
8 Ibid.
9 The Criminal Law Amendment Act 2013 (Act 13 of 2013), Section 357C Cr.PC says that both private and
public health professionals are obligated to provide treatment. Denial of treatment of rape survivors is
punishable under Section 166 B IPC with imprisonment for a term which may extend to one year or with fine or
with both.
10 Supra. Note 1
11Tuka Ram And Anr v State of Maharashtra, AIR 1979 SC 185.
12Vishaka and others v State of Rajasthan and others, AIR 1997 SC 3011.
13Ibid.
14 2014 (7) SCALE 76.
15 (2011) 2 SCC 550.
16 2015(9) SCALE 815
17 (2010) 1 SCC 742.
18 2007(3) RCC (Crl) 818.
19 2015 (8) SCALE 436.
20 (2013) 14 SCC 637.
21 2015(7)SCALE 445
22 AIR 1952 SC 54.
23Ibid.
72
References
Agnes. F. (2013). No Shortcuts on Rape Make the Legal System Work. Economic and Political Weekly
xlvii (2).12-15.
Bailey. F. L. & Rothblatt H.B. (2015). Cimes of Violence: Rape and Other Sex Crimes.New Delhi, South
Asian Edition : Lawyers Co-operative Publishing Company.
Banerjee, P., Banerjee, K., Badhopadhyay, M.S. & Bhattacharya, J. (2014). Why So Much Blood?
Violence against Women in Tripura. Economic and Political Weekly, XLIX (43 & 44). 49-56
Bhalla, N. (2013, January 16). Analysis: How India's police and judiciary fail rape victims. Reuters.
Retrieved
from
http://in.reuters.com/article/2013/01/16/india-delhi-gang-rape-women-safety-policidINDEE90F0AY20130116
Bhat, U.L. (2014 May1). Prosecutrix in a Rape Case Evaluation of Evidence- Part I. Live Law.
Retrieved from http://www.livelaw.in/prosecutrix-rape-case-evaluation-evidence-part/
Canada: Immigration and Refugee Board of Canada. (2012, May 9). India: Rates of women lodging
complaints with police for violent crimes; police response to female victims of violence. Retrieved from
http://www.refworld.org/docid/50b4a23b2.html
Cover Story. (2014, December 20). The fatal flaw in the anti rape campaign. Tehlka Magazine. 11 (51)
Retrieved from http://www.tehelka.com/2014/12/the-fatal-flaw-in-the-anti-rape-campaign/
Crime in India 2014. (n.d.). National Crime Records Bureau Report. Retrieved from http://ncrb.nic.in/
Duttaa, R. (2013, November 5). Indian Criminal Justice System and Rape Survivors: Reflections. Live
Law. Retrieved from http://www.livelaw.in/indian-criminal-justice-system-and-rape-survivors-reflections/
Himabindu, B. L., Arora, R., & Prashanth, N. S. (2014). Whose problem is it anyway? Crimes against
women
in
India.
Global
Health
Action
7.
Retrieved
from
http://www.globalhealthaction.net/index.php/gha/article/view/23718
Jagadeesh, N. (2010). Legal changes towards justice for sexual assault victims. Indian Journal of Medical
Ethics, 7(2)108-112.
Jaising, I. (n.d.). Locating the Survivor in the Indian Criminal Justice System: Decoding the Law.
Lawyers
Collective,
Womens
Rights
Initiative.
Retrieved
from
http://www.lawyerscollective.org/publications/locating-survivor-indian-criminal-justice-system-decoding-law.html
Kashyap, A. (2010, Sepetember 6). India: Prohibit Degrading 'Test' for Rape. Human Rights Watch Report
Retrieved from https://www.hrw.org/news/2010/09/06/india-prohibit-degrading-test-rape
Khazan, O., & Lakshmi, R. (2012, December 29). 10 reasons why India has a sexual violence problem.
The Washington Post. Retrieved from https://www.washingtonpost.com/news/worldviews/wp/2012/12/29/indiarape-victim-dies-sexual-violence-proble/
National Crime Records Bureau Report. (2014). Crime in India. (n.d.). Retrieved from http://ncrb.nic.in/
National Institute of Justice. (2010). Rape and Sexual
http://www.nij.gov/topics/crime/rape-sexual-violence/pages/welcome.aspx
Violence.
Retrieved
from
Sircar, O., & Bhanot, N. (2008, November). Violence Against Women. Retrieved from
http://infochangeindia.org/women/backgrounder/violence-against-women.html
Sasikumar, J., & Madhan, K. (2015). Ahead and Aftermath of Delhi Nirbhaya Rape Case: A Content
Analysis of Sexual Assualt in Selected Newspaper. The India Police Journal, LXII (1), 96-105
Thirani, N. (2012, December 28). Debating the Death Penalty for Rape in India. The New York Times.
Retrieved from http://india.blogs.nytimes.com/2012/12/28/debating-the-death-penalty-for-rape-in-india/?_r=0
TNN. (2014, December 14). Over 31,000 rape cases pending in high courts. The Times of India. Retrieved
from
http://timesofindia.indiatimes.com/india/Over-31000-rape-cases-pending-in-highcourts/articleshow/45542590.cms
UN Women. (2016). Facts and Figures: Ending Violence against Women. Retrieved from
http://www.unwomen.org/en/about-us/about-un-women
Women Against Sexual Violence and State Repression. (2013, January 3) Retrieved from
https://kractivist.wordpress.com/2013/01/03/vaw-justice-verma/
Wssnet. (2013, January 5). Represenation to the Justice Verma Commission. Retrieved from
https://wssnet.org/2013/01/05/represenation-to-the-justice-verma-commission/