The most ridiculous thing I have heard recently is that a Saudi millionaire claimed that he accidentally fell and penetrated a teenager whilst she slept on a sofa in his flat in London. He denied raping her even though his DNA was found in her vagina. The charges were cleared after a trial by the Southwark Crown Court.
Whilst I cannot imagine his claims are even possible, a seemingly corrupt judge was in the seat of judgement and decided otherwise.
This incident reminds me of many other incidents in India where justice has been denied to the victim because systems failed. These are just two recent examples.
After a man eloped with an upper caste married woman in Haryana, India, the unofficial village council retaliated by punishing his two sisters with a penalty of rape and being paraded in public naked with blackened faces. This abhorrent ruling inspired a petition initiated by Amnesty International to put pressure on law enforcement and the judiciary to stop this council-sanctioned rape. One of the sisters has petitioned the Supreme Court of India because when she turned to the police for protection, they harassed her and her family. She said that she could not return home to her village and had been rendered homeless.
A young woman who claimed her mother had been physically and sexually abusing her since her childhood tried to register her case with several local police stations. But they refused to accept her complaint, claiming a mother is incapable of abusing her child. Finally she had to seek the intervention of the Delhi Commissioner of Police before for her case was viewed seriously. But now the young woman’s lawyer is having a hard time proving to the court that the mother can be a respondent as there is no such provision in the Domestic Violence Act, 2005. According to the Act, only an adult male can be a respondent and they have asked the lawyer to get legal precedents.
These two incidents highlight how difficult it can be for a woman or girl to come forward and break her silence regarding the atrocities she faces in her life. As women in India, we depend on others around us for support. These could be our family, our community, the police, the judiciary and even the government and it is clear that the criminal justice system is failing women.
The law, including the Domestic Violence Act, can be inadequate and too limited. For example, India has some strict laws addressing sexual violence—especially after the horrific rape of Nirbhaya in Delhi, India in December 2012 where a young woman was brutally beaten and gangraped inside a moving bus. After this appalling crime, the government established the Justice Verma Commission to review the criminal law relating to violence against women. The resulting “Verma Report” led to the passage of the Criminal Law Amendment Act 2013, which, while some argue is inadequate, includes many forms of sexual violence against women as criminal offences.
But even with a law in place, there is no assurance that police won’t refuse to file a complaint. Take for example a women’s newspaper Khabar Lahariya operating out of Uttar Pradesh whose entire staff of journalists were incessantly stalked on the phone by a man named “Nishu” to the point they feared for their lives. The police shuffled their complaints from one police station to another, without progressing on the case. It was only through social media pressure that the state government forced the police to act.
The police have discretion to decide if a crime occurred and if it is worth investigating. In many cases, the perpetrator, like this Saudi millionaire, might be an influential person who the police might be reluctant to arrest or investigate. As Susan Estrich notes in her book Real Rape, the credibility of the victim becomes the key factor in determining whether charges will be filed and the suspect convicted in “she said/he said” cases.
And of course, these are not just problems in India. According to UN Women, one in three women around the world will experience some form of sexual assault and more than eight in 10 of these assaults go unreported. The reasons women don’t report assault vary, but are typically due to fear of shame and embarrassment to themselves and their families, fear of retaliation, a belief that the sexual assault was a minor incident and not a police matter, fear of dealing with the police, or fear of the lengthy process for justice.
On the third anniversary of the “Nirbhaya rape”, as we reflect on our current state, and while the broader solutions here involve changing cultural views of the rights of women, there are immediate changes we can make. We need quicker action by the police in investigating the crime, filing of the complaint under the right section of law and protections from harassment of the person filing the complaint and her family. We also need reforms to fast track courts for speedy judicial justice and accountability on the part of the police.
These steps to hold perpetrators accountable for their actions will help survivors of violence find justice and it may change the larger cultural views on women and sexual assault to deter future crimes.
ElsaMarie D’Silva is the CoFounder & Managing Director of Safecity that crowdmaps sexual harassment in public spaces, and is a 2015 Aspen New Voices Fellow. You can follow her on twitter @elsamariedsilva