Toss and Talk: What you need to know to combat violence against women

Combat violence against women

Early this week, we heard Maneka Gandhi telling a group of journalists that India’s rape problem is an exaggeration fuelled by the media. She also claimed that back in 2014, India ranked among the lowest four nations in rape cases.

Anyone who knows India in the least bit will know, her statement can be treated as wishful thinking at best — certainly not the reality.

The reality is that women are not safe in India. And sexual crimes are a serious problem (and that’s an understatement) in our country, where stalkers stab their victims to death in broad daylight and even 11-month-old babies are not spared from rapists.

Now, tomorrow is the International Day for the Elimination of Violence against Women. And we thought that while our Women and Child Development Minister is busy dismissing the very problems that should keep her up at night, we’d put together some information to combat violence against women.

Special thanks to human rights lawyer Radhika Saxena, who was kind enough to take time out of her busy schedule and answer our questions.

Avantika: So we are talking about elimination of violence against women. Our guest is Radhika Saxena. I’ll let her introduce herself before we badger her with questions

Radhika: Hi, so I’m a human rights lawyers working Ms. Indira Jaising. I work primarily on women’s rights issues in her office.

Divya: Hi! I want to know more about implementation of laws against CAW. As in what is being done to make it easier for women after rape is reported?

R: So we are working on this matter which is dealing with a lot of issues relating to safety of women. We’re asking the Supreme Court to monitor transport license renewals, bus route, lighting on the streets, impose liability on taxi aggregators (like Ola and Uber), we are also suggesting dealing with sentencing in rape cases, etc.

A: Are there any helpful laws women should know, but usually don’t?

R: Yes, and I hope most of you know that a woman cannot be taken into custody after sunset unless a woman constable is present who has the responsibility to escort you.

You can file an FIR at any police station and it will be transferred to the one having jurisdiction.

Janani: I am also interested to hear your perspective on whether the recent spate of movies and TV shows creating awareness about violence towards women is actually making any sort of dent in terms of change towards actual implementation and awareness in real life, where it matters?

R: I don’t think TV serials have made a serious dent in the matter.

D: Is there a law against stalking ?

J: And eve-teasing or verbal harassment? Would be good to know how stalking is defined as well under this law.

R: Yes, there’s a law against stalking. And voyeurism too. Section 354 A, B, C and D of the Indian Penal Code deal with these crimes.

Eve teasing isn’t covered but 354A may cover verbal harassment if it’s sexually coloured.

A: I know that woman constable have to investigate rape cases, but what about if they are biased? Or if a judge in a case seems to have his or her mind made up… how does a woman deal with that?

R: For cops, you can make an application to change the Investigating Officer. But for judges, it isn’t easy.

Again, you could ask for transfer to another judge or court altogether, but it may not always be granted. It is very difficult to deal with biases that women have. Only gender sensitization and training can help.

D: There have been so many cases of stabbing recently by stalkers. Can you get a restraining order?

R: Yes.

A: There’s been a spate of gender sensitisation in the Delhi district courts recently. Have you noticed a change?

R: Younger judges in the district judges are doing well. But it’ll take time for the picture to change over all.

Vishakha: Hello! What are we doing to address the fact that marital rape is still legal in India? And can we really do much when our women and child minister herself dismisses it as an untouchable issue because of the ‘social fabric of the country’? Also how long do you think it could be before India actually criminalises marital rape?

I think that if we dig deep, most of us will find someone or the other in our family who has been a victim of marital rape and don’t even know that they were raped.

R: So, we have raised marital rape before the Supreme Court, but it is a legislative issue, so I’m not sure what can be done apart from lobbying for a law. But the Ministry has already stated that such a law will destroy the family unit and made their stand clear.

We haven’t and shouldn’t stop trying though.

A: Is there anything women across India can do to lobby for the law?

R: Yes, you can write to Mandela Gandhi

A: Hahaha! What an ironic typo 🙂

R: And, you can also write to other MPs asking them to initiate private members bills.

At present, some Additional District Judges add marital rape charges under cruelty to wife i.e. section 498A Indian Penal Code, having no other option. Section 377 also works for marital rape cases if the intercourse is “unnatural”.

Sohaya: “Many a times girls also make fake complaints just to ruin the life of a boy, sometimes the parents of girl compels her to file a complaint against the boy she loves, as the law shows a lot of sympathy towards the girl. The accused is left with nothing, when the complaint is made his life is ruined irrespective of the fact that he was proved guilty or not. So, in my views there must come an amendment which equalizes the burden of proof on both the sides and the law works smoothly. It should be such that is contradicts the statement i.e. ‘Law is there for vigilant.'”

Just read this online. Views?

R: Actually, that’s an incorrect assumption. See, the burden of proof in a case of rape is beyond reasonable doubt for the prosecutrix (the woman). It’s only when she discharges that burden does a presumption arise against the accused. Which he also has to rebut beyond a reasonable doubt.

Sure, some girls may make false complaints, but it’s not as if the law protects/favours them any more than it does a male.

A: It might be unwittingly doing so, though. The new rape laws were hastily made and followed by cops mindlessly. Often chargesheets are submitted on only the prosecutrix’s statement.

R: It’s actually very difficult to prove rape unless the accused cums, or for that matter, assault which does not involve any injuries you know? Yes, chargesheets are based on her statements as well. But a presumption does not arise on only her word.

She is subjected to cross examination and her version should be independently proved, she has to prove the chain of events beyond a reasonable doubt before a presumption arises against an accused.

A: And during this cross examination.. does she have to face her alleged rapist?

R: No, she doesn’t have to face if she’s below 18. But in special circumstances, an application can be made to the judge for adults too. I am involved in a case where we have made such an application and it has been granted.

V: Could you also draw on your experiences and give some ideas on how we can increase awareness about the concept of consent and the fact that women themselves are blamed for rapes.

R: It’s very difficult to deal with victims of sexual abuse. I have had occasion to interact with one and I cannot stress just how scarring the experience is for any one who goes through such trauma. Lot of counselling and positive emotional reinforcement is needed.

For self blame again, only emotional support can help and counselling from someone dealing with such issues regularly.

The new law has a definition for consent, which in my opinion is about right. Young girls everywhere need to be taught about sexual autonomy, sex has to be seen without marriage, not within, only then can we actually create awareness about consent.

S: What about men who get sexually assaulted by men.. does that get reported at all?

R: The situation at present is pretty terrible.

A: How can women best protect themselves against further violence? Especially if it’s domestic?

R: There’s a Domestic Violence Act in place and it has some really great features known as protection orders which can be very exhaustive – including getting separate lodging at the perpetrators cost, restraining order, maintenance, etc.

But a woman will need to approach a protection officer or a police station to report the matter initially at least.

A: Any helpline that a woman can call at such a time?

R: I believe 181 does some counselling.

S: What about women who are made to marry their attackers. That’s an absurd thing.

R: I KNOW, RIGHT?! So, thankfully the Supreme Court has clarified that such a practice is illegal and unconstitutional, moreover rape is a non-compoundable offence (it cannot be compromised), so it just cannot be done.

But I have during my own research spanning over 150 Supreme Court decisions on the issue of rape sentencing seen that courts take such factors into account and award lesser sentences. Yup. Deplorable. I’m hoping though that with the recent judgment, this position will change.

A: But the practice has continued. Anything the SC can do or has done to sanction judges who compound rape cases like so?

R: I don’t think the Supreme Court takes any action directly, the judges may be transferred to remote areas, some pay cuts, etc. But not to the extent of termination.

Thus, you’ll find that a High Court judge who had allegations of sexual harassment to a subordinate judge against him, is STILL a sitting Judge! 😔

V: Just going to re-ask my question on creating awareness about the concept of consent. Do you have any ideas?

R: I think we need to explore consent differently, not in legal terms, but in human terms. Like for instance, you won’t eat meat if you didn’t want to. Similarly, you wouldn’t have sex if you didn’t want to. It’s that simple and we need to have conversations with young kids about sex and consent like this, openly, simply and unabashedly.

Srishti: I have a lame take on this; but I think gender sensitization is taking a negative turn with all the ‘anti-feminism’ and all that.

R: I can’t disagree there. But I find that it is the only way, and best when done young?

A: There is that sentiment (yesterday was International Men’s Day.)

R: 😂 TOI had a very cringe worthy headline for it too

A: Lol yea that’s true. But don’t they always? Oops, Don’t publish this bit. I might need a job some day! Or do. Vineet Jain has a great sense of humour.

R: 😂

A: One last question: what’s the change you hope to see around this issue in the next five years?

R: I hope there’ll be a surge in reporting, awareness, and sensitization. I hope that someday people would realise that it really isn’t “only her word” which matters. I wish to see marital rape as an offence among other things.

A: Thank you for your time. We all share those hopes! 🙂

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