இந்தியாவில் அதிகரித்து வரும் பாலியல் வன்முறைகள்

The Hindu investigates behind the rape numbers

A six-month long investigation by The Hindu has revealed that the nature of reported sexual assault in Delhi is far more complex than earlier imagined. Among the key findings is that a third of all the cases heard during one year dealt with consenting couples whose parents had accused the boy of rape.

Over the last six months, The Hindu analysed all cases involving sexual assault that came before Delhi’s six district courts in 2013 – nearly 600 of them in all. The Hindu also interviewed judges who hear rape cases, public prosecutors who argue them, police officers who work on the cases, complainants, accused and their families, and women’s rights activists and lawyers. What emerges is a complex picture of the nature of sexual assault in the capital, a city that has come to be known as India’s “rape capital”.

India’s only source of statistics on sexual assault is the National Crime Records Bureau. NCRB data comes from police stations; First Information Reports (FIRs) filed in police stations across the country are collected at the state level and then put together at the national level. With respect to rape, NCRB data gives the number of cases registered in all states (1,636 in Delhi in 2013, for instance) and in 53 major cities, the age-groups of the alleged victims and a rough categorisation of the alleged offenders nearness to the victim. The data is not able to say anything more about the nature of sexual assault.

The Hindu found that one-fifth of the cases were wound up because the complainant did not appear or turned hostile. Of the cases fully tried, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with “breach of promise to marry”. Of the 162 remaining cases, men preying on young children in slums was the most common type of offence.

For a greater insight into the nature of sexual assault cases, The Hindu looked at all 583 cases decided by Delhi’s district courts – the first level at which rape cases are tried in India – in 2013 and categorised them by the details that emerged in the case, the time the entire process took, medical evidence, the ages of the complainant and accused, observations made by judges and the outcome.

In 123 of the 583 cases ruled on in 2013, the complainants either could not be found, stopped attending the trial, turned fully hostile, insisted that they had never alleged rape or admitted in court that they had filed a false complaint. While it is likely that some of this is on account of the pressure exerted on women to withdraw complaints – in two cases, the complainants referred to “community members” intervening in their depositions – in several others, the complainant said that she had filed a false case for money or as a result of a property dispute. Naturally, all of these resulted in acquittals.

Young love

Of the 460 cases that were fully argued before the courts, the largest category (189 cases) dealt with cases involving or allegedly involving consenting couples. The majority of these – 174 of these 189 cases – involved couples who seemed to have eloped, after which parents, usually of the girl, filed complaints of abduction and rape with the police. In two-thirds (107) of these cases, the woman “complainant” deposed consistently before the police, doctors, magistrate, district judge and under cross-examination that she had eloped and had sexual relations – and in most cases got married and sometimes had children – with the accused because she was in love with him.

 

 

THE STORY BEHIND THE NUMBERS
Total rape cases registered in 2013(Delhi)   1636*
An analysis of all cases involving sexual assault that came before Delhi’s six district courts in 2013

 

 

Total rape cases decided   583

Total conviction   133

* Source: National Crime Records Bureau

In case after case among these 107, girls depose about the suffering they faced at the hands of their parents – beatings, confinement, threats, being forced to undergo medical examinations, being forced to undergo abortions, even as they plead before the court they be allowed to stay with their husbands. A large number involved inter-caste and inter-religious couples.

 

The reason these cases are before the courts is because the girls in most of these cases are between the ages of 15 and 18, and the court must decide if they are minors. In ten of these cases, the court agrees that the relationship was consensual and that the couple got ‘married’ but convicts the boy anyway as the girl was a minor.

Some judges are sympathetic to the situation. Justices Virender Bhatt and Kaveri Baweja, for instance, sentenced the boys in such cases to the period already served by them in jail, or to a token one week. Such discretion, however, has been taken away by the Criminal Law Amendment Act passed in April 2013.

In most of the remaining 67 cases involving alleged elopement, the girl deposed in at least one instance – either in the initial FIR, or during her medical examination, or in her statement to the magistrate – that she was in love with the accused and went away with him of her own will. However, in court she supports her parents’ and prosecution’s case. “Once the girl is sent back to her parents, there is tremendous pressure on her and she often changes her stance,” lawyer and activist Seema Mishra, who says that she has seen countless such cases in Lucknow as well, said. “If the girl is not sent to a shelter once she is picked up by the police, and instead sent home, you can be sure they will brainwash her and she will change her statement in court,” one public prosecutor added. Indeed in one of the cases, the girl pleaded before the magistrate that she be allowed to stay with the accused, but the magistrate denied her wish as she was a minor. In her deposition in the sessions trial, she subsequently changed her stand.

Such changes in testimony in addition to incriminating evidence including photos of the wedding, letters exchanged and no reports of any alarm raised by the girl during train journeys or in hotels during the alleged elopement make convictions rare in these cases as well.

Promise of marriage

Another 109 of the 460 cases fully argued before the courts deal with “breach of promise to marry”, cases in which the woman complains that her consent for sex was obtained under a false promise of marriage, following which the man refused to marry her. Even though the law allows them to, courts are increasingly disinclined to convict in such cases especially if the complainant is educated; only 12 of the 109 cases resulted in convictions, and in most of these, the man was either already married or had conducted a fraudulent marriage with the complainant.

Lawyers and women’s rights activists too are of the view that although such cases reflect the premium put on a woman’s chastity in a patriarchal society, rape laws should not be used in this context. “In my opinion, this should not be rape. If we are talking of women’s agency, then we cannot have it both ways,” lawyer and activist Vrinda Grover said.

However until the law changes, police officials are unlikely to stop registering such cases. “First of all, there is a bias among cops towards the girl’s father,” one senior Delhi police official said. “Secondly, we can have action taken against us for not registering a rape case.”

Rape as we know it

The 162 remaining cases of the nearly 600 heard in 2013 dealt with rape as it is most commonly understood. Of these, nine involved trafficking or prostitution, 30 involved a member of the girl or woman’s immediate family, 12 involved strangers and 111 involved neighbours or acquaintances. Rapes by strangers (including the Dec 16 case) and those by members of the immediate family result in a high rate of conviction. Those by strangers tend to be opportunistic crimes in which a man or group of men prey on a vulnerable woman – one who has run away from home, or is homeless, or is a child, The Hindu found. Rapes committed by immediate members of the family are almost always perpetrated on a young child. There are some exceptions; the most shocking case involving a family member has to do with the rape of a woman by her brother-in-law as part of dowry harassment, following which she committed suicide.

Among rapes committed by a neighbour or acquaintance, half involved a man in a slum assaulting the minor daughter of his neighbour either by luring her while she was playing outside or taking her to his house. Courts tend to overwhelmingly convict in such cases. In the other half, involving adult women and men they know, courts acquit when there are frequent changes in the victim’s testimony or if they are not able to find medical corroboration, The Hindufound.

National situation

While this is the only such quantitative and qualitative study of sexual assault at the district court level, National Law University (Delhi) associate professor Mrinal Satish studied 801 cases which came up as appeals before all High Courts and the Supreme Court from 1984 to 2009, and which were reported in the Criminal Law Journal. He found that 40 cases involved consensual sex, of which some came under the 29 statutory rape cases in his dataset. There were no ‘breach of promise to marry’ cases. However Dr. Satish’s dataset looked only at cases that came to the higher courts in appeals. In both cases of elopement and breach of marriage, complainants were reluctant to pursue appeals, a leading public prosecutor said.

(This is the first in a three-part series)

“I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said.

In January 2013, Seema (name changed), who had moved to Delhi from rural Bihar with her brother went to the Hanuman temple on Delhi’s Panchkuian Road with 19-year-old Sameer (name changed). He put vermilion on her forehead, the couple embraced and now married in their own eyes, they ran away to Sameer’s native village in Samastipur. By May, Seema, now pregnant, was in a court-mandated shelter home for young women visited only by Sameer when he got bail, accused of kidnapping and raping his young love.

The content of 600 court judgements analysed by The Hindu and interviews with complainants, judges and police officers illuminate for this first time the real stories behind the headlines on the national capitals rape statistics.

As Part 1 of the series showed, one-fifth of the trials ended because the complainant did not appear or turned hostile. Of the cases fully tried, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with “breach of promise to marry”. Of the 162 remaining cases, men preying on young children in slums was the most common type of offence.

These numbers too do not on their own illuminate the stories behind these numbers; for this, The Hindu interviewed judges, prosecutors, police officers, complainants, accused, lawyers and activists most of them under condition of anonymity because they were not free to publicly discuss confidential rape trials. What emerged were heart-rending stories and the role of the police and judiciary.

‘Teenage love drama’

Of the 460 cases dealing with sexual assault in Delhi’s district courts in 2013 that went to a full trial, 174 involved or seemed to involve runaway young couples like Seema and Sameer, The Hindu found. This was especially true for inter-caste and inter-religious couples.

Across the system, there was some amount of concern and sympathy for these consenting couples, especially among judges. Ruling on Seema and Sameer’s case in October 2013, Additional Sessions Judge Dharmesh Sharma said, “The instant case racks [sic] up a perennial problem being faced by all of us on the judicial side: what should be the judicial response to elopement cases like the instant one… This life drama is enacted, played and repeated everyday in the Police Stations and Courts…” Of the case before him, Judge Sharma noted, “This case is a teenage love drama where our dysfunctional cruel society and the justice system have separated the two love birds and have taught them a bitter lesson.”

“We get innumerable such cases in Lucknow too,” Seema Mishra, lawyer and women’s rights activists with Association for Advocacy and Legal Initiatives (AALI), said. AALI has been at the forefront of the pushing for women’s right to choose sexual relationships, which is at the heart of the 174 cases The Hindu looked at. In case after case, as well as in interviews with The Hindu, the behaviour of the girls’ parents was shocking: they arrive at the hotel the couple has eloped to and drag them home, they beat and even injure the couple (in one case breaking the girl’s spine), they threaten her even with acid, they force her to submit to invasive medical tests and in many cases, even to an abortion.

In Judge Sharma’s case, he was able to acquit Sameer since Seema was over the age of consent for sex at the time – 16 years. However now that the Criminal Law Amendment Act (2013) is in force, the age of consent now stands at 18. “I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said. “By raising the age of consent, they have ensured such cases of consensual sex being called ‘rape’ are just going to multiply.”

 

Promise of marriage

Judges, prosecutors and police officers tended to be far less sympathetic towards the other major area of concern – the 109 cases which deal with “breach of promise to marry”. The argument used by prosecutors in these cases is that if a woman had sexual relations with a man only under a false promise of marriage by him, her consent was not free as it was obtained through deceit. However in most such cases, showing that the accused never intended to marry the complainant becomes hard to prove, unless he is already married to someone else and hiding it.

“You might say it is wrong, but when the girl’s father comes to the police station and says she has been ruined, a policeman will tend to take the father’s side,” one senior Delhi police explained. More often than not, he said, the FIR was a way to force a man attempting to call off a marriage into going through with it; in a third of such cases The Hindu looked at, the woman deposed in court that they were now married and hence she no longer accused him of rape.

“Your family discovers you have been having relations with a man for five years and now he has called it off because of pressure from his family,” one complainant who lost her case explained. “Before you know what is happening, your father and uncle have gone to the police station and you are forced into this. Everyone tells you that if you do not go along with it, you will never get married,” she said.

“Frankly I think this shouldn’t be counted as rape. It comes from a patriarchal context, from the premium placed on a woman’s chastity. But if we want to talk of women’s agency, we cannot have it both ways,” Ms. Grover said, a sentiment shared by several other feminist lawyers.

Rape as we know it

The 161 remaining cases look a lot closer to what is conventionally referred to as rape. Nearly half of these involved an adult neighbour preying on a minor child of a neighbour or a vulnerable woman sleeping outdoors or alone at home, most took place in slums, and had a conviction rate of over 75%. “Mothers like me have to work all day and are not able to keep an eye on our children,” one mother who secured a conviction in the rape of her three-year-old by a neighbour, said in tears. The medical investigation and courtroom terrified her, the woman said, but her family supported her.

In such cases, the consistent testimony of the complainant played the most important role. Judges were usually willing to convict in the absence of medical evidence, and in one case, Additional Sessions Judge Renu Bhatnagar convicted a man of raping a mentally challenged minor girl even though she was unable to depose in court apart from nodding. However in at least two cases where the complainant admitted that she met the accused alone voluntarily but did not consent to sex, judges disbelieved the woman’s testimony.

The judgement in the December 16 gang-rape formed part of The Hindu’s study and was notable in its length, detail and unprecedented extent of medical evidence. It was one of only 12 rapes heard in 2013 that were alleged to have been perpetrated by strangers, and all of the others pre-dated it.

Conclusion

The stories behind Delhi’s sexual assault statistics indicate that the image created by police statistics alone might be a misleading one.

(This is part two of a three-part series. Part 3 appears tomorrow: The Journey from FIR to Judgement)

Keywords: Crime against women, India rape cases, Delhi rape cases, sexual assault cases in Delhi, The Hindu exclusive report, National Crime Records Bureau, NCRB data