Flavia Agnes, Audrey D’mello
The popular perception is that most rapes are ‘stranger rapes’ which cause severe trauma and brutal injuries, and that every victim perceives it as an ultimate violation and a state worse than death. But ‘stranger rapes’ form a minuscule percentage of reported cases. The overwhelming number is by acquaintances of the victim
As a team of women lawyers helping victims of domestic violence for over two decades, our first tryst with criminal courts was in 2011, while supporting an illiterate, migrant mother, seeking justice for her four-year-old who had been raped by a watchman at a school in the vicinity of our office in Mumbai. The police, under pressure from the lady principal, had refused to register a First Information Report (FIR) for three days. It was only when the hospital noticed the swelling in the child’s private parts that a complaint was lodged. Reports had already started appearing in the press that she, the mother, was insane or that she had demanded Rs.10 lakh from the school authorities to “settle” the case. The girl’s mother had no clue what she was up against. So we stepped in to support the mother, pitched against influential school authorities, and secured a conviction against a high-profile criminal lawyer, where the prosecutor had thrown in the towel. This was the beginning of our survivor support programme.
At that time, our own perceptions regarding rape were similar to popular perceptions — that most rapes are “stranger rapes,” which cause severe trauma and brutal injuries, and that every victim perceived it as an ultimate violation and a state worse than death. But soon we realised that “stranger rapes” form a minuscule percentage of the reported cases. The overwhelming number is “acquaintance rapes”. When we read media reports, where judges asked victims to marry the “rapists,” we winced. When police and other stakeholders loosely used terms such as “genuine” and “false” cases, we seethed in anger. We had studied numerous Supreme Court and High Court judgments for our research, but nothing prepared us for the ground reality which confronted us.
In the last three years we have engaged with over 350 reported cases, studied charge sheets, observed court proceedings, interacted with stakeholders — the police, hospitals, prosecutors — and, most importantly, have travelled the journey with “victims” from investigation to trial and in the process have helped some to become survivors. This has given us newer insights.
Our own findings match with the findings of the research conducted by The Hindu — of rape trials in Delhi in 2013. In general, a third can be categorised as cases of “elopement” and another third as cases that involve “promise of marriage.” These are generally termed as “false cases” in official discourse, for no fault of the girl. Either the parents file a case against the wishes of the girl, or the boy/man sexually exploits the vulnerabilities of the girl and then dumps her. The requirement of mandatory reporting under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the increase in the age for consensual sex, from 16 to 18, have brought a large number of adolescents into the sinister web of criminal law.
While the National Crime Records Bureau (NCRB) reports the conviction rate as being around 25 per cent, our own research for Mumbai for the past five years places it at a much lower level of a mere 10 to 12 per cent. In addition to victims turning hostile, other contributing factors are a delay in registering the FIR, faulty investigations, insufficient evidence, inconsistencies and contradictions in witness statements, indifferent and overworked prosecutors, gruelling cross-examinations of even minor children by astute criminal lawyers, a non-compliance of protocols and guidelines by courts and inexperienced/insensitive judges. Only when a case is followed from the stage of the FIR to the final verdict is it possible to understand what lies beneath the verdict. Here is a sampling of some cases.
When Priya, a 14-year-old girl from a poverty stricken background, was taken to a public hospital by her mother because she was not having her periods, examinations revealed her pregnancy. The child narrated how the local pramukh, whose house she cleaned, had raped her. Though she had not confided in anyone about the incident, thereafter, she had refused to go to his house. Priya’s mother begged the hospital staff not to file a case. All she wanted was an abortion to save herself and her child from the stigma. But this could not be done as Priya was over five months pregnant and it would pose a risk to her life. When neighbours came to know about the incident, all hell broke loose; the pramukh was beaten up. All this led to the filing of the case.
When Priya and her single mother approached us, it was heart-rending to see young Priya trying to hide her pregnancy with her dupatta. We helped Priya move into a shelter home. Her mother did not even have the money for a bus journey to meet her daughter during this critical time. The baby was eventually given up for adoption. During the trial Priya deposed well and was able to withstand the gruelling cross-examination. The illiterate mother was humiliated because her husband had left her. The DNA report revealed that the pramukh was not the father. The investigation officer and the prosecutor termed Priya a liar. Acquittal was a foregone conclusion, but we managed to help Priya and her mother deal with it. What ultimately broke their spirit was a report in the local newspaper which described the mother to be a scheming woman who had filed a false case to pressure the pramukh to include her name in a slum development scheme. Priya’s world collapsed and she wanted to commit suicide. The mother, who had lived in the same slum tenement for 40 years, had to relocate to another area, incurring a huge debt. No one questioned how and why a 14-year-old girl had become pregnant. In court records, it was a “false” case.
Selvy was a Tamilian Christian school dropout, and the daughter of a single mother. Left to herself the whole day she got involved with a Muslim boy who lived in the neighbourhood. She soon discovered that she was pregnant. After the initial hesitancy, the families agreed to get them married. Due to pregnancy-related complications, Selvy approached a public hospital. The staff at the registration on discovering that she was 15 and unmarried, called the police and forced the mother to sign an FIR. The boy was arrested. Selvy approached us with only one request — to help her meet her boyfriend and release him. However, her efforts were futile. After a month, she had a girl. Thereafter, she appeared on every court date with her infant.
Our anxiety during this period was whether the boy’s family would allow him to marry her after his acquittal as the family had suffered great humiliation and financial loss. When asked about her age, during deposition, as instructed by the defence lawyer, she said that she was 18 years. The judge did not probe further. The “rapist” was acquitted. This too would be a “false” case in court records. Had Selvy belonged to a higher strata of society, she would not have approached a public hospital and there would have been no case.
Then there was 16-year-old Chand who confided in her boyfriend that her father had been raping her for over a year; she pleaded with him to rescue her. Though her mother knew about it she was too scared to do anything. Chand’s boyfriend advised her to file a case. Before the FIR was lodged, the police summoned the girl’s parents and elders in the community. Chand however was determined to go ahead despite pressure from the elders. During a medical exam, the doctors noticed that Chand was crying and was in a state of extreme depression. She was referred to trauma counselling. Chand was not shifted to a safe shelter and she was blamed by the family and neighbours for the father’s arrest. During the trial, Chand denied that she had ever complained that her father had raped her and said that the police had filed a false case. She further stated that her hymen rupture was due to consensual sex with her boyfriend. The Public Prosecutor did not even call the doctors who had examined the girl to depose.
Chand’s father was acquitted and lives in the same house. One does not know what fate befell Chand. Familial loyalty and the guilt of sending her own father (and, in most cases, the breadwinner of the family) places a huge burden on young girls who complain about rape by fathers.
And, finally, the case of Seema, just 13, raped by four boys at a birthday party of one of them, and where her friend had taken her to. She was drugged and raped. When she regained consciousness, she realised that she was naked and bleeding. When she managed to reach home, her mother, a domestic help, immediately admitted her to a municipal hospital nearby. She identified the accused during the test identification parade. Seema was placed in a shelter home where her friend was also admitted as a child in conflict with the law. Seema was abused and beaten by this girl, and so she was released and sent home.
During the trial, we noticed Seema’s alcoholic father engaged in a long conversation with the defence lawyers. During deposition, Seema turned hostile and refused to identify the accused. Though the DNA on the bedsheet matched that of the accused, they were acquitted. This judgment was delivered the same week as the Shakti Mills judgment where the three accused were awarded the death penalty. While the boys in that case face the hangman’s noose, the boys here were let off, to roam around in the same locality.
The reasons for acquittal are many and it would be dangerous to equate acquittals with “false” cases. Instead, we need to question stakeholder accountability and insist on a survivor-centric approach.
(The writers are part of the survivor support programme of Majlis Legal Centre in Mumbai. The insights reflected here are through the work of the entire team.)