Sexual assault laws amended, but little change on the ground
CARE AND PROTECTION A series of refresher training courses need to be organised to sensitise the police about their responsibilities to minor victims
The central government has once again made the rape law tougher, both for the rapist and the police, providing the death sentence for the rapist when the victim is less than 12 years old. It has also reduced the investigation period for the police from three to two months except in certain cases. Many amendments have been made earlier in the law relating to sexual offences since 1983. A special legislation, the Protection of Children from Sexual Offences Act (Pocso Act), was enacted in November 2012 to protect children from sexual offences. Here is a reality check which shows how far we have travelled through these amendments.
The law requires that a first information report (FIR) on a rape case must be recorded by a woman officer so that the survivor could connect emotionally and recount her ordeal without fear.
However, National Crime Records Bureau (NCRB) data reveals that the representation of women in the police has not increased proportionately to fulfil this mandate.
The percentage of female police officers has increased just marginally from 6.85% in 2012 to 7.10% in 2016.
The regional variation is even more alarming. Maharashtra and Tamil Nadu constitute about 30% of total women force; Andhra Pradesh and Madhya Pradesh have less than 5% each. The number of woman officers, in the same period, has increased from 10,455 to 11,367 against over 15,000 police stations. Thus, on average, there is not even single woman officer in each police station despite the fact that most of the states have 30% horizontal reservation for them. In the absence of institutional support, it is extremely difficult to implement the amendments.
Records show that the mandate of recording a statement at a place of the victim’s convenience is also on paper.
Under the POCSO Act, the prosecution has to prove that the child is under the age of 18 years. Unfortunately, the jurisprudence of determining age has not been applied consistently in our country.
Earlier, the Supreme Court, in several judgments, held that the police has to collect primary evidence i.e., the birth certificate, and only in its absence should it collect the school certificate or get a medical ossification test conducted to determine the age of the victim. Also, the person responsible for getting the birth registered must be examined to vouch for its truthfulness.
After the enactment of the Juvenile Justice Act, which clearly lays down the parameters for determining the age of a juvenile delinquent, and gives priority to the school certificate over the birth certificate, the Supreme Court in Jarnail Singh vs Haryana (2013) held that if parameters can be laid down for determining the age of the accused, the same parameters could be applied for determining the age of the victim as well.
As the law has not been amended to give effect to the apex court’s directives, it is not being followed uniformly across the country.
Further, since the provisions of the Registration of Births and Deaths Act of 1969 are not coercive but merely persuasive, its enforcement still remains poor in rural areas.
Investigating officers collect various documents, and without reaching a logical conclusion about the actual age, put them up before the court for evaluation. This leaves sufficient scope in the hands of defence lawyers to distort facts and question the recorded birth date.
The standard ossification test to determine age only provides a range, which again, not being a perfect science, is challenged and disregarded by defence lawyers.
Therefore, quite often, the prosecution fails to establish the minor status of the survivor. The legislative benefit of non- admissibility of consent of a minor does not flow to the prosecution.
Timely medical examination of the survivor is very crucial in rape cases as it can conclusively establish the crime with the assistance of DNA profile matching. If a case is reported after delay and stained clothes are not preserved, except for the noticeable faded injuries and marks of resistance, nothing much can be established in court. Besides, rural public health centres do not have sufficient woman doctors, and taking the survivor to several places becomes a daunting task.
The medical examination is still not done scientifically.
Despite the Supreme Court’s orders and the Union health ministry’s directives, the two-finger test is still in use. Medical reports are still seen extensively that say a woman is ‘habitual of intercourse’, and ‘no definitive opinion can be given about the rape’.
Doctors obviously, and hopefully, would know that the word ‘rape’ is a legal proposition and not a medical diagnosis. Also DNA labs are not yet available in all states and many cases are decided in the absence of a Forensic Science Laboratory (FSL) report.
Another feature added in the Criminal Procedure Code (CrPC) says that the police officer shall get the statement of a victim recorded by a judicial magistrate. A similar provision exists in the Pocso Act.
However, it has been observed that judicial magistrates are generally not called for a cross-examination by trial courts. In such scenarios, these statements get reduced to the ones recorded by the police and do not help the prosecution. Similarly, the burden of proof, even if necessary conditions are fulfilled, is not shifted to the accused at any stage. Several judgments still record that the prosecution failed to establish its case beyond reasonable doubt.
The provisions in the law that the court shall presume do not get their due during trials.
It’s high time that the long-pending recommendation of various commissions, and the Supreme Court, to separate investigation from law and order, are honoured by state governments.
The DNA facilities and mobile FSL units must be enhanced. Doctors must adhere to the government’s guidelines and respect women’s right to privacy.
The ‘Investigation Units of Crime Against Women’, a recent initiative of the central government to improve investigation and supervision of sexual assault cases, must be made functional.
Though the SC has recently asked director generals of police to constitute a task force that would oversee Pocso cases, the witness protection scheme is yet to be fully put in place.
The police can meet the new twomonth deadline of completing investigation only if all multi-jurisdictional agencies join hands for a common cause. The police, however, must keep its home in order and do its bit without waiting for others to take the lead.
Allegations of the police being indifferent and insensitive are not uncommon. A 19-year old victim of gangrape was turned away by three different police stations in Bhopal last year on the question of which station had jurisdiction over the case. Similarly, the report of a minor girl was not heeded by Unnao police due to political reasons until her father died in police custody.
These are only some of the indicative examples highlighted by the media.
The Supreme Court’s latest assertion in the Lalita Kumari case (2013) to mandatorily register a cognizable offence, perhaps has not permeated the conscience of the lower rungs of the police.
Therefore, in addition to taking appropriate action against the erring police officers, a series of refresher training courses need to be organised to sensitise the police about their respon- sibility. The police cannot forget that the registration and detection of crime is one of its core functions without which its credibility shall always remain at stake.
A minor victim of rape is also a child in need of care and protection under the Juvenile Justice Act, particularly if the offence has been committed by a relative and she is not safe at home. However, if the child is rescued at odd hours or on holidays, child welfare committee members may not be available and the police cannot send her to an observation home. A rape victim needs societal and institutional care that go beyond the letter of law. Society needs to recognise this.
DESPITE THE SC’S ORDERS AND THE UNION HEALTH MINISTRY’S DIRECTIVES, THE TWOFINGER TEST IS STILL IN USE. DOCTORS OBVIOUSLY, AND HOPEFULLY, WOULD KNOW THAT THE WORD ‘RAPE’ IS A LEGAL PROPOSITION AND NOT A MEDICAL DIAGNOSIS