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Rape Victim’s Guide to Legal Justice

Written By - Mansi Mishra

Contents

-Fear of speaking up

-First Information Report (FIR)

-Investigation

-Evidence

-Arrests

-Charge-sheet

-The Trial


Introduction

Rape is when a person intentionally penetrates another's vagina, anus or mouth with a penis, without the other person's consent. Assault by penetration is when a person penetrates another person's vagina or anus with any part of the body other than a penis, or by using an object, without the person's consent.

The overall definition of sexual or indecent assault is an act of physical, psychological and emotional violation in the form of a sexual act, inflicted on someone without their consent. It can involve forcing or manipulating someone to witness or participate in any sexual acts.[1]

A survivor is a person who suffers the rape and comes out with much emotional and physical trauma. In India, the fear of people knowing that the survivor’s chastity is not in-tact and he/she is a victim of rape comes as an icing on the cake. This adds up to the trauma, which a rape victim goes through while having nightmares and the fact that they were forced into sexual activity without their consent, haunts them.


Punishment for Rape under Indian Penal Code

Under Section 376 of the Indian Penal Code, whoever commits rape, shall be punished with rigorous imprisonment of either description for a term of not less than ten years, but which may extend to imprisonment for life, and shall be liable to fine.

Suffering rape is one of the most dreadful trauma one can face, on top of this the assaulters are so harsh that sometimes the rape results in a persistent vegetative state of the victim.

Under Section 376A of the Indian Penal Code, whoever commits rape, and in the course of such commission, inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, is made punishable with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, meaning imprisonment for the remainder of that person’s natural life, or with death.

Sometimes it is not just a single person committing the rape, a group of people get together to take part in the rape of a girl/boy, with a common intention. It is commonly referred to as ‘Gang Rape’.

Under Section 376D of the Indian Penal Code, when each of those persons is to be deemed to have committed the offence of rape and is punishable with rigorous imprisonment for a term which is not less than twenty years, but which may extend to life, meaning imprisonment for the remainder of that person’s natural life, and with fine.

It is also provided that the fine imposed under this section is to be paid to the victim and such a fine should be just and reasonable to meet the medical expenses and rehabilitation of the victim.[2]


Fear of speaking up

Many times, the horrid act of rape by rapists go unreported, as the survivor often never tells anybody about what happened, and what he/she/they went through. Dreading what society must say.

Indian society often judges the rape victim, considering that it must be the rape victim’s fault that they got raped in the first place. The rape victim is asked unreasonable questions, like what outfit was the rape victim wearing, what hour of the night did they step out, if they were asking for it. Nobody thinks that which rape victim would convey in any manner, voluntarily, that they want to be raped?

Society would rarely assume that the rape was the fault of the rapist and the rapist only. Even in the horrifying ‘Nirbhaya case’, in 2012 many Indians judged the victim, by discussing that the girl should not have been out at such a late hour in the first place.

Girls who have been raped, are considered exploited and severely not marriage material. India may not be no.1 on the rape countries list, but it definitely is not a safe space for a rape victim as a society always increase their trauma instead of helping them through it. In a country like India, where a woman’s worth is based on her cooking skills, and if she is a virgin before marriage, a lot of women get validation out of the fact, if they are getting good marriage prospects. So, a rape victim’s trauma gets more severe as she is viewed as impure.

The legal system is built in the form to support for rape victims and provide them justice, but frequently the people who are supposed to execute justice, fall behind as they themselves are a part of this ugly Indian society. When a rape survivor does decide to speak up and report the assault, they should start with filing an FIR at the police station.


First Information Report (FIR)

The survivor or the informant must file the FIR at the police station which has jurisdiction over the place of a crime or where the victim resides. In the FIR the informant has to mention every detail of the crime which occurred.

If the police do not cooperate in filing the FIR, the informant could send a letter to the Superintendent of Police of that Police station, after receiving the letter he is obliged to conduct the investigation himself or appoint a junior officer to the task.

Medical help and psychiatric support are provided to the survivor. A social worker is called to provide support and help to the victim.

If there is enough evidence a ‘challan’ is prepared. If evidence is insufficient, the FIR is declared untraceable. If FIR turns out to be false, the FIR is cancelled. When FIR is transferred to another police station under a jurisdiction issue, it is cancelled in the previous Police Station and becomes valid at the Police Station where it is transferred.

When the police record a complaint in the case of a Non-Cognizable offence, he gives you what is called an “NC,” which is the Non-Cognizable Complaint Record. Advocate Sourya Banerjee explains, “After an allegation of rape has been filed with the police, the police register the FIR and launch a prima facie investigation. Based on the evidence of the investigation the Police would arrest the accused and files the charge sheet before the appropriate Court. The State Prosecution takes the case on behalf of the victim from then onwards, though the victim is well within their rights to have their own lawyer assist the State Prosecutor.[3]


Investigation

As a part of the investigation, the complainant/informant is called to the Police Station for further statements and to potentially identify the accused, also for clarifications regarding the case. The most important phase of investigating is gathering evidence.


Evidence

The first stage of procuring evidence is finding proof that the survivor, witnesses and perpetrators were at the place of crime and at the same time. Further, the collection of forensic evidence and material is done which is very crucial to support the survivor’s account.

Signs indicating rape are documented. The absence of signs does not mean that the rape did not occur.

Material evidence includes clothing, jewellery, relevant possession of the survivor at the time of the rape. Material collected is listed in a document called ‘panchnama’ which records that all evidence is collected. The panchnama must be signed by two people whom the survivor trusts.

There is a lot of collection kits available for the collection of forensic evidence. Forensic evidence usually consists of :

· Clothing.

· Smears of the buccal, vaginal and rectal mucus.

· Combed samples of the scalp and pubic hair as well as control samples (pulled from the patient).

· Fingernail clippings and scrapings.

· Blood and saliva samples.

· Semen, if available.

Note: The evidence becomes inconclusive or absent after showering, changing clothes, or activities that involve the site of penetration such as douching. The evidence becomes weaker or disappears as time passes. So, the victim is said to report the crime and provide forensic evidence within 36 hours since the crime occurred.[4]


Arrests

Once the police identify the accused, the arrest is made. Sometimes a number of suspects are brought to the Police Station to do an identification parade. The person among those who identify as the accused is arrested and others are set free. The accused is then sent for forensic testing to validate the survivor’s account.

Then the survivor, accused and the witness gives a detailed description of the crime at the Magistrate's. If the survivor/complainant is not satisfied with the investigation, on concrete grounds, they can appeal to the Magistrate or the High Court for directions, if they can prove that the investigation has not been going on fairly.


Charge-sheet

Once the investigation is complete, the case is found genuine and true. A charge-sheet is filed by the police with a detailed account of the investigation to the Session’s Court, including the FIR and the evidence. After the submission of the charge-sheet in the court, the case goes to trial.

The Trial

The trial is fought by the state in which the survivor lives, if not the survivor herself, the Public Prosecutor and the lawyers of the accused take over the case. Once the matter goes to court, the survivor/ complainant can appoint a lawyer to assist the prosecutor with the trial. During the trial, both sides, the victim’s and the accused’s, put forth their arguments. In the trial, the survivor, the witness and the accused are examined to provide better and fair judgement.

A rape trial is always held on camera, which means it is not open to the general public to maintain the dignity of the victim.

The rape victim finds legal justice, if the accused is found guilty, they are faced with rigorous imprisonment of not less than 10 years and a fine. If the crime is considered ‘rarest of the rare’, the accused might even face the death penalty.

Sometimes, the accused might be acquitted and not found guilty, in situations where the charges against them are false, or failure of just investigation by the police, or even due to corruption, with the help of influential people, the accused goes home free.

The courts of India has thousands of backlog cases, so many victims have not found justice in this country due to the slow working and inefficiency of the courts. There is a very emergent need to find a better and faster way to provide justice to the rape victims.


Setting up of Fast-track Courts

In a recent scheme by the government in 2019, the government approved setting up of 1,023 fast-track courts (FTSCs) across the country for expeditious disposal of pending rape cases under the Indian Penal Code and crimes under the Protection Of Children from Sexual Offences (POCSO) Act.

The 1023 FTSCs will dispose off 1,66,882 cases of the Rape and POCSO Act, that are pending trial in various courts. The above number is derived from the data provided by all High Courts as on 31.3.2018 [5]


Recent Trial

In a recent case, Mohit Subhash V. State of Maharashtra; the Bombay High Court denied anticipatory bail provided by the Session’s Court due to an application filed by the victim. The accused reached out to the apex court, where the Chief Justice of India, SA Bobde asked the man who has been accused of raping the girl repeatedly, whether he would marry her.

As we have discussed earlier, In India after a girl gets raped, their chances to marry gets even lower. And this is the bizarre desperation of the courts and the public, regarding a girl’s marriage, which should be the business of the girl and the girl only, rapists are asked to marry their victims.


Conclusion

According to the law, Rape victims are bound to get legal justice, but the story is very different in reality. Coming out and speaking up about rape is most shameful to the victim and then when they do speak up and report the case, they are humiliated in courts by the defence, questioned by the media, blamed for the rape if she was out late at night, traumatised even more by Indian Society.

There is a need for mental evolution in society. People should be well aware of the fact that rape is only the rapist’s fault and aid the victim as much as they can. More openness should be created in the environment regarding rape and speaking up about it. Psychological help and therapy should be compulsory to help the victim heal.

Even if she gets legal justice, would she ever believe that the country supports her? Is this really justice? Would any sort of punishment to the rapist, change the trauma she has been through?

[1] Definition of Rape, available at https://www.met.police.uk/advice/advice-and-information/rsa/rape-and-sexual-assault/what-is-rape-and-sexual-assault/ [2] N.H Jhabvala, The Indian Penal Code 262, 2019 [3] What Happens After an FIR, available at https://www.womensweb.in/2018/06/filing-a-rape-case-all-you-need-to-know-jun18wk4sr/( Last Modified June 25, 2018). [4] Forensic evidence in Rape; available at https://www.msdmanuals.com/professional/gynecology-and-obstetrics/domestic-violence-and-rape/medical-examination-of-the-rape-victim(Last Modified April 2020). [5] Setting up of fast-track courts; available at https://doj.gov.in/node/1139077 (Last Modified 2019)

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