Current State of Affairs: Is Our Judicial System Insensitive to Rape Victims?

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There is little doubt that rape is one of the most heinous crimes that exist in our current society. It is a crime that not only affects the victim but also the society. Even so, is our system doing enough to combat rape? Year after year, rapes in India have only been rising. The National Crime Record Bureau (NCRB) points to dismal facts. India registers a rape every 15 minutes. Just over 85 percent led to charges. Another 27% end in convictions.

With such a poor rate of convictions, our system to combat rape comes into the limelight again. It begs us to ask the question, are we doing enough to combat rape? Is our system insensitive to the plight of rape victims?

The Outdated Approach

“The explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman. That is not the way our women react when they are ravished”. These were the words of Karnataka HC Justice Krishna Dixit. He said this while hearing a case of anticipatory bail.

Furthermore, he also commented on certain facts and circumstances of the case. He stated that there were a few reasons that put doubt on the victim’s claims. First was the fact that she consumed alcohol with the petitioner. Second, was that she allowed him to stay with her till morning. He also stated that there was no explanation offered as to why the victim did not go to the police immediately.

Problems Faced

One may debate that this was merely the case of anticipatory bail, not the final verdict given in the case. However, the doubts cast on our justice system still loom. Rape victims in our country have a long hard fight to get justice. The first and the biggest challenge faced by rape victims is society. In almost 90% of all registered rape cases, the victim and the abuser know each other. People are more concerned with the reaction of society to rape and the ‘reputation’ of the family. Hence, this leaves many victims to fend for themselves. This leads to pressure on the victim to not file a case.

The dynamics of India also play a major role. Many times, there is immense pressure put on Dalit/so- called-lower cast families. People pressure them not to pursue a criminal case. Or, they tell them to change their testimony if the accused is from a higher caste. 

The next fight faced by victims is the getting their case registered or investigated. Not registering rape cases is a crime punishable with two years’ imprisonment. Despite this, reports indicate otherwise. Police officers tend to pressurize victims into not filing a report. Often, the police attempt to help the victim ‘settle’ their dispute with the abuser. Powerful and ‘upper caste’ abusers usually bribe the police to do this. Lacks of witness protection laws also make survivors and witnesses vulnerable to threats. 

Current State of Affairs 

report of the Human Rights Watch sheds more light on this. The Government issued medical guidelines in 2014, for dealing with rape cases. These guidelines remain largely unfollowed. Their implementation depends on the states. Hence, there is lack of uniformity throughout the country. Medical professionals, especially in smaller States, do not follow guidelines. They still practice outdated methods of examination. 

Victims of rape, especially from marginalized communities, lack access to legal help. There is a plethora of judgments by Courts to provide legal aid to the victim. Despite this, there is no shortage of cases where the victim has had no access to legal aid. Even if victims fight all these challenges, their battle for justice is still not over. 

There is close to an 88% backlog in all rape cases in country. 700 fast track courts are currently operational. However, the total number of pending cases in these courts still stands in lakhs. So, there is a huge backlog problem that the Government needs to address. And even after fighting all these problems, victims of rape still face the agony of the court process. 

Defence lawyers continue to use biased and derogatory language towards sexual assault survivors. They use tactics that regularly question the ‘character’ of the woman. They portray her as an ‘impure’ and ‘easy’ person. Judges are also been complacent in this behaviour many times. There have been many instances where judges have passed comments such as:

“Never be blackmailed into being raped, or you will be showing ‘promiscuous attitude and a voyeuristic mind’”. These statements are not isolated incidents as already seen by the recent case. Many times, judges have passed statements that in every way contribute toward victim-shaming. 

Changes Required 

The first step of solving any issue is recognizing that there is one. The legislature needs to wake up. It needs to realize that merely implementing harsher punishment is not the solution. It is not the true that India does not have any guidelines issued by the Courts and the legislature. But what is lacking is the will to ensure strict implementation. 

The Government must take steps to improve implementation of these guidelines. Focus has to be shifted on implementation of sensitization programs that ensure complete help to survivors of rape. But the biggest change required is the societal change. Stigma and patriarchy still exist in India. Society needs to support victims, and stop doubting their stories. The law is balanced enough to protect the rights of the accused. What is lacking is adequate support by the judicial system to the victim. 


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