(New York) – Rape survivors in India face significant barriers to obtaining justice and critical support services, Human Rights Watch said in a report released today. Legal and other reforms adopted since the gang rape and murder of a student, Jyoti Singh Pandey, in Delhi in December 2012 have not been fully realized.
The 82-page report, “‘Everyone Blames Me’: Barriers to Justice and Support Services for Sexual Assault Survivors in India,” finds that women and girls who survive rape and other sexual violence often suffer humiliation at police stations and hospitals. Police are frequently unwilling to register their complaints, victims and witnesses receive little protection, and medical professionals still compel degrading “two-finger” tests. These obstacles to justice and dignity are compounded by inadequate health care, counseling, and legal support for victims during criminal trials of the accused.
Barriers to Justice and Support Services for Sexual Assault Survivors in India
Barriers to Justice and Support Services for Sexual Assault Survivors in India
“Five years ago, Indians shocked by the brutality of gang rape in Delhi called for an end to the silence around sexual violence and demanded criminal justice reforms,” said Meenakshi Ganguly, South Asia director. “Today there are stronger laws and policies, but much remains to be done to ensure that the police, doctors, and the courts treat survivors with dignity.”
Human Rights Watch conducted field research and interviews in four Indian states – Haryana, Uttar Pradesh, Madhya Pradesh, and Rajasthan – selected because of their large numbers of reported rape cases – as well as in the cities of New Delhi and Mumbai. The report details 21 cases – 10 cases involving girls under the age of 18. The findings are drawn from more than 65 interviews with victims, their family members, lawyers, human rights activists, doctors, forensic experts, and government and police officials, as well as research by Indian organizations.
Under Indian law, police officers who fail to register a complaint of sexual assault face up to two years in prison. However, Human Rights Watch found that police did not always file a First Information Report (FIR), the first step to initiating a police investigation, especially if the victim was from an economically or socially marginalized community. In several cases, the police resisted filing the FIR or pressured the victim’s family to “settle” or “compromise,” particularly if the accused was from a powerful family or community.
The Criminal Law (Amendment) Act, 2013, expanded the definition of sexual offenses to include sexual harassment, voyeurism, and stalking. In four cases of sexual harassment against girls that Human Rights Watch documented, there were delays by police in investigating the crimes and filing charge-sheets. Parents said they feared for their daughters’ safety after filing complaints because the accused received bail easily and then made threats.
The lack of a witness protection law in India makes rape survivors and witnesses vulnerable to pressure that undermines prosecutions. For instance, Khap Panchayats, unofficial village caste councils, often pressure Dalit and other so-called “low-caste” families not to pursue a criminal case or to change their testimony if the accused is from the dominant caste.
Indian law requires doctors to provide first aid or medical treatment, free of cost, to women and girls who approach them and disclose rape. The medical examination not only serves a therapeutic purpose, but also helps gather possible forensic evidence.
In 2014, the Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence to standardize healthcare professionals’ examination and treatment of sexual assault survivors. The guidelines provide scientific medical information and processes that aid in correcting pervasive myths. It rejects the so-called “two-finger test” by limiting internal vaginal examinations to those “medically indicated,” as well as the use of medical findings for unscientific and degrading characterizations about whether the victim was “habituated to sex.”
However, because health care is a state matter under India’s federal structure, state governments are not legally bound to adopt the 2014 guidelines. Human Rights Watch found that medical professionals, even in states that have adopted the guidelines, often do not follow them. Rules in other states are often outdated and lack the detail and sensitivity of the 2014 central government guidelines.
Even as authorities begin to standardize collection of forensic evidence, state healthcare systems have largely failed to provide therapeutic care and counseling to rape survivors. This includes advice on access to safe abortions and tests for sexually transmitted diseases.
Victims of sexual assault, particularly from poor and marginalized communities, also lack effective legal assistance. A 1994 Supreme Court ruling says that police should provide sexual assault victims legal assistance and keep a list of legal aid options – but they rarely do. In none of the 21 cases documented by Human Rights Watch did the police inform the victim of her right to legal assistance or offer legal aid options.
Some defense lawyers and judges still use language in courtrooms that is biased and derogatory toward sexual assault survivors. “The attempt at shaming the victim is still very much prevalent in the courts,” said Rebecca Mammen John, a senior criminal lawyer in Delhi.
The national and state governments have taken several initiatives to support sexual assault victims, but without a monitoring and evaluation framework, they largely remain inadequate or ineffective. For instance, there are 524 fast-track courts across the country for expeditious trials in cases dealing with crimes against women and children. However, little will be achieved unless other key concerns are addressed, such as legal assistance to help victims navigate the system.
A central victim compensation fund created in 2015 mandates that rape victims receive a minimum of 300,000 rupees (US$4,650), but each state provides different amounts. The system is inefficient, and survivors wait a long time or are unable to access the scheme. Out of 21 cases documented by Human Rights Watch, only three survivors had received compensation.
The One Stop Centre Scheme, a place providing integrated services – police assistance, legal aid, and medical and counseling services – also remains ineffective in practice. The government reported that it had set up 151 centers across the country, but anecdotal information collected by Human Rights Watch and other groups found a lack of coordination among the various relevant departments and ministries. There is also little public awareness about these centers.
“Reporting rape should not contribute to the victim’s nightmare,” Ganguly said. “It takes time to change mindsets, but the Indian government should ensure medical, counseling, and legal support to victims and their families, and at the same time do more to sensitize police officers, judicial officials, and medical professionals on the proper handling of sexual violence cases.”
Illustrative Cases from the Report
Barkha (not her real name), Uttar Pradesh
Police in Lalitpur district in Uttar Pradesh state refused to accept 22-year-old Barkha’s complaint of kidnapping and rape against three men who had attacked her and her husband in their home on January 30, 2016. Barkha said that two men beat her husband and took him away while the third, belonging to a dominant caste, raped her, abused her using caste slurs, and threatened to kill her if she went to the police. She said the police were reluctant to act because the main accused is a local leader of the ruling political party. Even after a court ruling, the police took another eight months to register the FIR. Meanwhile, Barkha and her husband had to flee the village and move hundreds of miles away after repeated threats and harassment from the accused and others in the village.
Kajal (not her real name), Madhya Pradesh
Kajal, 23, said she and her father were detained, threatened, and beaten up after they filed a complaint of gang rape in Neemuch district in Madhya Pradesh on September 14, 2015. She said that the police detained her father and told her to tell the magistrate that she filed a false complaint of rape at her father’s behest. The police also made her sign several blank pages, slapped her, and beat her with a stick. She said the police also threatened to arrest her father on false charges if he did not sign a statement that his daughter had filed a false complaint. Kajal said that out of fear she gave a false statement to court. Police filed a closure report in December 2015, saying Kajal and her father filed a false case because of a land dispute with the man accused. She has since filed an appeal describing the intimidation. However, the chief judicial magistrate rejected the closure report and ordered the investigating officer to appear before the court.
Kajal’s husband and his family abandoned her after she reported the rape, and she returned to live with her parents. She and her parents were forced to move away from their home after threats from the accused. She was in urgent need of medical and counseling support for months after she was raped but the doctor who examined her did not provide any referral for counseling. Kajal told Human Rights Watch:
I have lost everything and everyone blames me. I didn’t even leave my home for a month after the incident. I was tired of listening to neighbors’ taunts. I had stopped eating, just lay like a mad woman at home. It felt like I had lost my mind.
Kalpana (not her real name), Haryana
Kalpana, 30, a Dalit from Kaithal district, Haryana, turned hostile witness in court after facing threats and harassment from a Khap Panchayat, an unofficial village caste council. She had reported being gang raped by six men from the dominant Jat community on March 10, 2015, in Jind district. Kalpana’s brother-in-law was with her when she was raped and was beaten up. The police, after an investigation, on March 28, filed a charge-sheet against all six, including gang rape, kidnapping, and abuses under the Dalit protection laws.
However, with the trial delayed as the police awaited forensic results, the family began to be harassed and threatened by the Khap Panchayat. Kalpana’s lawyer said that he too came under pressure, and was even offered a bribe, which he refused. However, Kalpana altered her testimony in court, and all the accused were acquitted. She and her family moved away from the village.
Kalpana’s brother-in-law said: “If you want to live in the village, you have to listen to the Khaps. They [Kalpana and her family] didn’t have another way. No one can fight and win from the Khaps.”