Dear Justice Verma:
Human Rights Watch welcomes the opportunity to make this submission to the Commission on Reforms on Sexual Assault. Human Rights Watch is an independent international nongovernmental organization dedicated to defending and promoting human rights in more than 90 countries around the world. We have researched sexual violence in different contexts over the past two decades in many countries, including in India.
Throughinterviews with survivors of sexual violence, their families, doctors and nurses, police officers, lawyers, judges, prosecutors, activists and experts across the country in the course of our research in India, Human Rights Watch has documented a number of shortcomings in India’s response, in law and in practice, to sexual violence. This submission highlights key reforms to address those shortcomings and strengthen the legal regime against sexual assault in India.
No sexual violence should be committed with impunity. Women and girls in India are often at great risk of sexual violence, exacerbated by gender discrimination within society. Discrimination is even greater when it is coupled with a minority status in terms of ethnicity, caste, or religion. We hope that your efforts will result in concrete steps to ensure adequate prevention, investigation, redress, and compensation of victims. Moreover, the public nature of your commission will allow it to send a broader message to Indian society at large that sexual violence is everyone’s concern and needs a concerted effort at all levels of government to address.
Urgent Need for Comprehensive Law Reform on Sexual Assault
Rights groups in India, particularly those working on women’s rights, have long called for laws on sexual assault to be reformed. The Criminal Law (Amendment) Bill, 2012, which was introduced in the lower house of the parliament on December 4, introduces a definition of “sexual assault,” but limits it to all forms of penetrative sexual assault and fails to criminalize marital rape. The new law should include a comprehensive definition of sexual assault, which includes both penetrative and non-penetrative forms of sexual assault. Consent, rather than the use of force, should be the essential element of sexual assault in criminal law.The law should recognize that the use of force, threat of force, or coercion defeats the possibility of genuine consent. India’s sexual assault legislation should follow the recommendations of the United Nations Handbook for Legislation on Violence against Women (2009) in relation to definition of consent as “unequivocal and voluntary agreement” and introduce sexual assault perpetrated under “coercive circumstances.” Further, as the UN Handbook recommends , legislation should recognize that women’s experience of violence is shaped by factors including religion, political or other opinion, national or social origin (such as caste and tribe ), marital status, sexual orientation, HIV/AIDS status, migrant or refugee status, age, or disability, and should include targeted measures for particular groups of women.
Law reform efforts to tackle aggravated forms of sexual assault should not introduce the death penalty. Human Rights Watch is opposed to the death penalty under all circumstances as an inherently irreversible, inhumane punishment. It is a practice abolished by a majority of world states. In 2007 the UN General Assembly passed by a wide margin a resolution calling for a worldwide moratorium on executions. In November 2012, 110 countries approved a general assembly draft resolution calling for a moratorium on executions. India was part of a tiny minority that voted to retain capital punishment, arguing for it being used sparingly, and in cases of particularly heinous crimes.
India also does not have any program of victim and witness protection. In order to pursue investigations and prosecutions without fear of reprisals, especially in cases where police, armed forces, or other public servants or politically connected individuals are involved, or in cases of sexual violence in the context of communal riots, the government should ensure victims and witnesses are entitled to protection as a matter of law and through an appropriate protection program. Adequate protection may require witness relocation programs and protection of witnesses' identities.
Given the focus of the commission on aggravated sexual assault, the commission should pay special attention to sexual assault perpetrated by the police. Human Rights Watch has found that socially and politically marginalized communities, for example sex workers and hijras, are subject to frequent sexual and physical harassment and street beatings by police, and in some cases sexual assault. In order to ensure that police are not above the law, the commission should recommend that Criminal Procedure Code section 197—which provides effective legal immunity to the police and armed forces—be suitably amended to exclude from the purview of “official duty” violations of fundamental rights including torture and ill-treatment, sexual assault, and extrajudicial killings.
Soldiers and paramilitaries have also been implicated in rape and sexual assault. Since they are protected from prosecution unless sanctioned by the government, it is much harder for survivors or their families to file complaints and obtain justice. In the northeast and in Jammu and Kashmir, where the Armed Forces (Special Powers) Act (AFSPA) is in force, there have been repeated allegations of rape by soldiers. We urge the commission to reiterate the recommendation of the Jeevan Reddy committee to repeal the AFSPA and remove the legal immunity granted under the Criminal Procedure Code.
Need for Police Accountability and Police Reform
Many police officials fail to register complaints of rape or pressure families to “compromise” a rape case. This is especially the case when the accused are influential or politically connected. In 2006, the Supreme Court handed down a landmark decision, Prakash Singh and Others v. Union of India and Others, that directed the central and state governments to enact new police laws to reduce political interference. Unfortunately, the central government and most state governments have either significantly or completely failed to implement the court’s order. This suggests both a failure to implement a Supreme Court ruling and to recognize the urgency of undertaking comprehensive police reform, including the need to make police accountable and separate from political interference.
Police often do not investigate rape cases and re-traumatize victims who approach them for help through their hostile or inadequate response, leading to under-registration. Police often complain that they are over-worked and under-staffed which results in a reluctance to register complaints.The government and police should ensure that First Information Reports (FIRs) are registered in every case in which police receive information that on its face suggests the commission of certain criminal offenses, including sexual assault, and hold accountable those officers who fail to register complaints. The commission should recommend the creation of a system of effective independent investigations into complaints of police abuse and misconduct. To reduce impunity, the central and state governments should comply with the Supreme Court’s order in the Prakash Singh case mandating the establishment of Police Complaints Authorities, and provide such bodies sufficient resources and independence to carry out their duties in a way that creates public confidence.
In order to reduce delays and malfeasance in registering FIRs, FIRs should be registered regardless of jurisdiction in which the crime allegedly occurred, before transferring a case to the appropriate police station. Complaints made by telephone or through e-filing should also be established as a proper basis for the recording of an FIR.
There is also an urgent need to increase the number of women police officers trained to deal with sexual assault, their promotion opportunities, and the number of women’s desks in police stations to ensure appropriate personnel are available, to the extent possible, to escort victims of gender-based violence, record their claims and interview them for the purpose of crime investigation. Clear and explicit guidelines for police intervention in cases of sexual assault should be established, including standardized arrest guidance for perpetrators, protocols for referring survivors of sexual violence to social, legal, and health services, and procedures to protect the privacy and confidentiality of individuals reporting such violence. Investigating officers should also go through mandatory training regarding gender-based crimes, including investigative methods applicable to sexual violence, working with traumatized victims, protecting victims from harassment, and collecting and preserving evidence.
Need for Dignified Medical Treatment and Care
Even though the Criminal Procedure Code specifies that a victim should be examined after rape, the format for medical examination is not specified. India does not have a uniform national protocol for the treatment and examination of survivors of sexual assault. This makes the quality of medical treatment and examination of survivors of sexual assault unpredictable, and in the worst cases results in degrading practices whereby doctors note the “laxity” or “old tears” of the vagina and record in medical reports unscientific and degrading comments about survivors’ “habituation to sex” or previous sexual history. Some do this through the use of the so-called “finger test,” whereby a doctor records the “laxity” of the vagina or the size of the hymnal orifice.
The office of the Director General of Health Services recently modified its protocol in 2011 to remove some questions about the size of the hymenal orifice and the opinion of the doctor regarding survivors’ habituation to sex. This is a welcome move but the protocol continues to fall far short of the guidelines prescribed by the World Health Organization for medico-legal care for victims of sexual assault. The protocol is also only applicable in central government hospitals.
In a May 2012 letter that Human Rights Watch jointly wrote with many leading experts from India, we urged the Prime Minister of India to constitute an inter-ministerial task force to ensure, among other things, that a national protocol for the treatment and examination of sexual assault survivors is introduced and backed by training and monitoring of its use.
We urge the commission to highlight the important evidentiary value of medical examination results in rape trials, and the vital importance of doctors undertaking such exams to treat survivors with dignity. We urge the commission to press the Ministries of Home Affairs as well as Health and Family Welfare to jointly develop a uniform protocol on medical treatment and examination for sexual assault that can be introduced across India. Such a protocol should be backed by resources for training and monitoring its proper use. This should be developed in consultation with leading Indian health and human rights experts and doctors with respect for survivors’ rights to health, consent and dignity. Furthermore, special guidelines need to be developed for the medical examination of child survivors of sexual abuse that include obtaining the fully informed consent of the children and the accompanying parent, minimizing invasive procedures, and restricting tests that risk mimicking the abuse to situations when absolutely medically necessary to determine if injuries need therapeutic intervention.
To fulfill its obligations, the Indian government can draw on the experience of other countries, and also build on good domestic examples. Within India, the Mumbai-based nongovernmental organization Centre for Enquiry into Health and Allied Themes (CEHAT) has developed a detailed medical treatment and examination protocol accompanied by an instruction manual, currently used in two Mumbai hospitals. The United Kingdom provides detailed theoretical and on-the-job training for all doctors who interact with, provide therapeutic care, and examine survivors of sexual violence. The United States and Canada also have forensic nurses who specialize in such examinations. In parts of the United Kingdom, the United States, and Canada, there are also specialized sexual violence crisis intervention centers equipped and staffed with trained professionals drawn from various backgrounds and able to provide integrated services with a special focus on the therapeutic needs of survivors.
We hope that you will encourage the government to:
- Ensure that the Criminal Law (Amendment) Bill, 2012, incorporates international standards to criminalize all acts of sexual violence, including both penetrative and non-penetrative forms of sexual assault, and marital rape;
- Repeal the Armed Forces (Special Powers) Act and remove legal immunity granted under the Criminal Procedure Code to security forces for violations of fundamental rights, including torture and ill-treatment, sexual assault, and extrajudicial killings;
- Implement police reform as recommended by the Supreme Court including the establishment of a complaint mechanism to address police abuse;
- Enact legislation to proscribe torture, cruel, inhuman or degrading treatment or punishment and ratify the Convention against Torture and otherCruel, Inhuman or Degrading Treatment or Punishment;
- Protect victims and witnesses from intimidation, retaliation and reprisals at all stages of legal proceedings, including by establishing a right to protection under law, with appropriate victim and witness protection schemes;
- Develop a uniform national protocol for the medical treatment and examination of survivors of sexual assault in consultation with health and human rights experts in India;
- Provide appropriate support services, including psycho-social counseling, legal aid, emergency medical care and reproductive health services responsive to the effects of sexual violence, including unwanted pregnancies and sexually transmitted diseases.
- Explicitly address the prohibition of sexual violence in police and military regulations, codes of conduct, and training materials;
- Fully investigate and bring to justice all perpetrators of sexual and gender violence in violation of of treaty-based and customary international humanitarian law committed by members of state security forces and non-state armed groups, in situations of internal armed conflict;
We are hopeful that the commission will address these important concerns in its recommendations. We would be happy to assist the commission in any other manner. Please do not hesitate to get in touch with us if you need any other information.
South Asia Director
The UN Committee on the Elimination of Discrimination against Women, in one of its judgments involving a rape, stated that “rape constitutes a violation of women’s right to personal security and bodily integrity, and its essential element is lack of consent.” It further stressed that “there should be no assumption in law or in practice that a woman gives her consent because she has not physically resisted the unwanted sexual conduct, regardless of whether the perpetrator threatened to use or used physical violence.” While the existence of force may be considered evidence of lack of consent, it should not be treated as an independent element of the crime of sexual aggression. See Communication No. 18/2008, CEDAW/C/46/D/18/2008, Sept. 1, 2010, paras. 8.5 and 8.7.
Human Rights Watch, Broken System, August 2009, https://www.hrw.org/reports/2009/08/04/broken-system.
Human Rights Watch, Dignity on Trial, September 2010, https://www.hrw.org/reports/2010/09/06/dignity-trial.
Human Rights Watch, India: Joint Letter to Prime Minister Dr. Manmohan Singh,May 14, 2012, https://www.hrw.org/fr/node/107143.