December 16 marks the 10th anniversary of the gang rape and untimely death of 22-year-old Jyoti Singh, who came to be known as Nirbhaya – the fearless. The past ten years have seen a heightened focus on violence against women and girls and significant changes in India’s rape laws. This period has also seen the foregrounding of women’s right to public spaces and freedom as well as resistance to paternalistic, protectionist views and policies.
However, since 2012, there have also been thousands of rape cases of women and girls, many of which shook the nation’s conscience. To name a few, the sexual abuse of girls in a Bihar shelter home that came to light in 2018; the gang rape and murder of a young veterinary doctor in Hyderabad in 2019; the rape of a girl in Unnao, Uttar Pradesh, that drew attention in 2019; the Hathras rape case of a 19-year-old Dalit woman in Uttar Pradesh and her subsequent death in 2020; and the 2014 Uber rape case.
Apart from these, the cases of rape and killing of school girls and the routine killing of young women by their families in the guise of “honour” across many parts of India must be recalled in shame.
Each of these cases has highlighted the fault lines of caste, class, religion and gender and how deeply formal and informal institutions are implicated in perpetuating these divisions and hierarchies.
According to the National Crimes Records Bureau, there was a 19.34% increase in rape cases in 2021 from 2020. A total of 428,278 crimes against women were registered in India in 2021. Crimes against women include cases of rape, molestation, acid attack, cruelty by husband/his relatives and domestic violence. However, looking at the institutional response to such cases, it would seem that the country is in a tailspin when it comes to addressing violence against women and girls.
We seem to lapse into a sense of resignation that nothing will change and instead shift the onus of safety to women and girls. Initiatives and advancements such as special women squads like the She Teams in Telangana, Nirbhaya police squads in Mumbai, Sakhi centres (one-stop crises centres), CCTV coverage and phone-based applications, though important, have not been operating optimally. More importantly, they do not prevent violence nor do they address patriarchal mindsets, toxic masculinity and rape culture.
The 1972 case of a policeman raping an Adivasi woman in Gadchiroli in Maharashtra – known as the Mathura rape case – led to changes in the law with a clause on custodial rape being introduced. The Delhi 2012 gangrape and murder and the country-wide outcry that followed brought in the Criminal Law Amendments in 2013, which brought in an expanded definition of rape that goes beyond peno-vaginal penetration.
In May 2012, Parliament passed the Protection of Children from of Sexual Offences, or Pocso, Act, while a year later the Prevention of Sexual Harassment at Workplace Act, 2013, or PoSH was passed.
Much seems to have changed on paper but little has changed at the institutional level and their functioning, particularly the judiciary, law enforcement, health systems and the media.
The Tarun Tejpal case – in which the Tehelka editor was accused of rape and molestation – brought up the glaring issue of who courts think a “credible victim” is. In its verdict delivered in May 2021, the Goa sessions court referred to the call records and WhatsApp messages of the complainant to discredit her version and conclude that the accusation was false.
In other cases too, courts in their verdicts have repeatedly referred to women’s clothing, the timing of their presence in public places or familiarity with the perpetrator and non-adherence to symbols of virtuous womanhood. This amounts to victim blaming and reinforces patriarchal beliefs.
Though the law on rape has changed to include a range of sexual assaults, the police, hospitals and courts carry on with business as usual. While examining medical reports, courts look for evidence of peno-vaginal penetration, vaginal elasticity, the status of the hymen, sperm traces, bruises and injuries.
But there is a lower likelihood of finding typical shreds of evidence in cases where there is a delay in reporting or in gathering evidence, or of digital rape – forceful penetration using fingers or toes – or forced oral sex or display of sexually explicit material (in the case of children).
On January 19, 2021, the Nagpur bench of the Bombay High Court acquitted a man of sexual assault, observing that the absence of skin-to-skin contact with the accused groping the victim over her clothes would not fall under the definition of “sexual assault” under the Pocso Act, 2012. This verdict highlighted the narrow understanding of the changed definitions of rape. The Supreme Court later quashed the controversial verdict.
In gang rape and subsequent death of a Dalit girl in Hathras in September 2020 demonstrated the gross irregularities in providing life-saving healthcare to sexual violence survivors and lapses in gathering medical evidence gathering.
The responsibility to care for the rape victim’s health, and ensure her dignity and privacy was compromised, violating medical ethics and statutory obligations. The medical report was available in public circulation on WhatsApp while the media did not behave responsibly while reporting the case either.
Outdated medico-legal practices
Another outdated practice is carrying out “potency” tests as part of the medical examination of the accused. This even though the scientific validity of such a test has been challenged and the new rape law makes it more or less redundant. In the Bihar Muzaffarpur shelter home case, the key accused, Brajesh Thakur, approached the Delhi High Court challenging his conviction by the trial court because no potency test was conducted on him.’
In March 2014, the Ministry of Health and Family Welfare Guidelines were issued, among the most prominent developments after the December 2012 gangrape.The guidelines were aimed at strengthening the inter-sectoral response to survivors of sexual violence, streamlining medical evidence gathering and extending health care for the survivor.
A study of health systems in Maharashtra and Telangana, to examine the implementation of the ministry’s guidelines, highlighted the sub-optimal level of preparation. The findings, published in 2021, showed that health systems are excessively dependent on the police system to guide medical evidence gathering.
Evidence of outdated medico-legal formats also came to light. Some healthcare providers endorsed the banned two-finger test in rape cases. On October 31, the Supreme Court came down heavily on the use of this regressive and invasive test.
Response systems are limited to district-level government hospitals where doctors are reluctant to attend to medico-legal cases due to delays between the incident and court hearing. Doctors mentioned that they find it discouraging when judges pose questions on virginity, and hymen elasticity or expect “yes” or “no” responses to questions.
A quick review of the Nirbhaya fund, the Centre’s non-lapsable corpus for financial assistance and relief for survivors of sexual violence, seems to be extensively used for infrastructure projects by state governments. A parliamentary panel report submitted in February said that the Nirbhaya fund had been underutilised.
A decade on, the huge knowledge gaps among the state instruments and apparatuses on the post-Delhi gangrape legal reforms and women-centered perspectives must be addressed.
Lakshmi Lingam, is Dean and Professor, Schools of Media and Cultural Studies, TISS, Mumbai. She can be contacted at email@example.com. Sunita Sheel B, is Director, HEaL Institute, FMES; Working Editor of the Indian Journal of Medical Ethics, and Founding Trustee, Vidhayak Trust, Pune. She can be contacted at firstname.lastname@example.org.