Has anything changed in prosecution of rape since Nirbhaya?
Linda Louis 19 Jul 2017

Has anything changed in prosecution of rape since Nirbhaya?

On the 1st of May 2017, Partners for Law and Development, a Delhi based organisation submitted their report on a study conducted to evaluate the experience of victims in the criminal justice system. The study was titled "Towards Victim Friendly Responses and Procedures for Prosecuting Rape: A study of pre-trial and trial stages of rape prosecutions in Delhi and is extremely informative and enlightening in the thorough nature of its scope and analysis."

The sample size though not representative, allowed a qualitative study, providing a layered understanding of the working of the law vis-a-vis the victims at the trial stage interwoven with perspectives of victims. The study, through observation and interviews, sought to understand the extent to which victim centric guidelines established by the Supreme Court and the 2013 amendments, were reflected in the processes.

The study involved trial observation of 16 rape cases in four special courts of Delhi, interviews with 8 victims, to examine the extent to which the advances in procedural law related to rape cases were being implemented, and how the victims experienced their encounter with the criminal justice system.

It is extremely unfortunate that, after all of the publicity given to the epidemic of rape and sexual violence in India, the protests, and the public will to fight against this practice, the institutions responsible still do not respond as appropriate.


Thus, this study has found that evidence suggests that in some cases, the police sought to discourage the complainant from filing the FIR, and also suggesting a compromise. Complainants also do not consistently receive a copy of the FIR, which is their statutory right.

More shocking are the observations relating to the behaviour of medical professionals in the context of the medical examination.

In the course of the study, the medical examination has emerged as the most problematic aspect of the pre-trial stage, which does not conform to the new ICMR Guidelines. Complainants are not explained the processes involved in the examination, or the purpose behind the tests. This impacts their capacity to give informed consent, even as consent is formally recorded. As a pitfall, it prevents the complainants from bringing attention to injuries and other facts, which feeds into the trial as evidence. While the MLCs do not report conducting 2-finger tests or notings about the victim being ‘habitual to sex’, insinuations about sexual history remain. Some MLCs reflect notings of old tears in the hymen and the absence of injuries, insinuating sexual history and lack of resistance, respectively.

It must be remembered that repeatedly, Judges of the Supreme Court as well as High Courts have denounced such comments and behaviour by medical professionals, and have insisted that no such inferences are to be drawn. This behaviour is a reflection of the deeply embedded patriarchal and contemptuous attitude towards women in our society, and unfortunately permeates through the medical fraternity as well.

An important dimension of the medical procedures is to provide continued treatment for injuries the complainant might have suffered in the assault, and providing counseling in order to cope with trauma. The medical procedures, however, prioritise evidence-collection over these aspects of holistic and reparative justice.

Aside from the medical examination, it is clear that the system provides little to no relief for victims. Complainants experience the need for legal guidance and support, absent which, they go through the distinct processes without information, and with uncertainty and confusion. They are not explained the relevance of the different processes involved, which inhibits their full, informed participation. They encounter obstacles in the most basic processes, such as registering the FIR, or obtaining a copy of it. This lack of information impacts their right to avail of victim compensation, and also their rights through trial.

The idea of crimes being about the State versus the accused was supposed to be about empowering the victim, not leaving them out in the cold. What should the legal fraternity and the State do to correct this horrifying process that victims of rape go through?


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