Outraged modesty: India stuck in the past on sex crimes
- 6 December 2013
- From the section Magazine
It's nearly a year since the gang-rape of a 23-year-old student on a Delhi bus brought thousands on to the streets, demanding better protection for women. The law was updated, new police procedures and fast-track courts were introduced - but in some ways India's approach to sex crimes is still stuck in the past.
A year ago, shortly before the notorious rape case in Delhi, another rape took place in a small town outside the city.
A 17-year-old was walking home from her grandmother's house in the afternoon, when suddenly she was surrounded by young men who bundled her into a car and drove her to a secluded spot, where they took turns raping her.
They made a film of the attack on a mobile phone. It clearly showed eight men raping her, she says.
But when her case came to court, only four were convicted.
The young woman is from India's untouchable - or Dalit - caste. The boys were from a higher caste. Consequently, the boys were offered water as the case dragged on in the boiling courtroom, the teenager's mother says, but her daughter wasn't. And this is just one of many ways she objected to the court proceedings.
"The lawyers of the accused said her character must have been flawed, and they questioned what she was doing outside the home."
In today's India, Dalits often still struggle to be treated fairly, but rape victims of all castes and classes are liable to find their own character made the focus of the court proceedings. Too often it's the victim who is blamed, campaigners say.
Part of the problem lies in India's outdated laws. A non-penetrative sexual act is still described as "outraging the modesty of a woman" - a relic of a penal code written by the British in 1860.
"Because of the language, it has often led to judgments where courts have held that a woman did not have 'modesty' which could be outraged," says law professor, Mrinal Satish.
"Such judgments are few and far between nowadays, but the continuance of the archaic language is itself problematic."
In Delhi I meet a rape victim who said she was attacked by a male acquaintance who asked her out for lunch. She describes the treatment she subsequently received at a hospital in the capital.
"They made me wait a long time and then they called out, 'Who was raped?'
"The doctor was absolutely heartless. I was screaming out in pain. They were absolutely hostile."
The doctor in that case recorded that the victim was "unco-operative", she says, an observation that the defence then used to attack her character in court. The man charged was acquitted.
Then there is the much-discredited "two-finger test".
It's the name given to an examination by a doctor who inserts two-fingers into the victim's vagina to ascertain whether her hymen is broken and whether she appears to be what's described as "habituated to sex".
The test can be traced back to a French doctor who recommended it in the 1920s. It became standard practice in India, where British colonial rulers had established a preference for scientific tests over the testimony of Indians.
A famous British doctor, Dr Norman Chevers, had written a medical jurisprudence textbook in the 19th Century, Mrinal Satish says, "in which his assumption was that all Indians are unreliable and Indian women lie more than Indian men".
The two-finger test is still in use today, despite a 2003 Supreme Court ruling that past sexual history should not be taken into account in rape cases, and further advice this year urging officials to stop subjecting women to it.
"Even if doctors in Delhi or Bombay have become sensitised to not using the test, there are little hospitals in far remote corners of the country which haven't received the message," says lawyer and women's activist, Rebecca John.
She says if the test is carried out, defence lawyers are liable to make use of the result in court, and judges do not always stop them.
Even before a victim of sexual violence reaches the hospital or court, she may struggle to have her case taken seriously.
In India, it's not uncommon for the police to refuse to register sexual crimes.
When the 17-year old Dalit girl first went to the police to register her gang rape, they at first refused.
Her father, who was already suffering from depression, was so ashamed he committed suicide later that day.
"We came back and spoke to other members of the Dalit community who came out in support," she says.
"Finally the first arrest was made. In my statement I said there were 11 or 12 men involved, but the police only caught eight. They said if you want more to be arrested, then go find them yourself."
The head of Delhi's Women and Children's Police Department, Suman Nalwar, says Indian police are now more sensitive towards victims of sexual violence, following last year's high-profile rape case.
Under new legislation, any police officer refusing to register a sexual assault case can face punishment.
But, she says, the lack of women in India's police force - only 3% throughout the country - is a problem.
"We would prefer to have a woman investigating officer there because of the social and cultural mores in society," she says. "In India women hesitate to talk about their sexual experiences with a man."
Although many criticise India's police and courts for old-fashioned bias against victims of sexual crimes, there are those who worry that reforms may open up the system to abuse.
India is still a deeply patriarchal society where a high price is placed on a woman's virginity and sex before marriage is generally condemned.
"The law can be misused by a girl saying she was raped when she was not," says retired Delhi High Court judge, R S Sodhi.
"As long as you're not caught (having sex) it's hunky dory. But the moment you get caught, you'd better say you were raped."
This past year has seen positive changes in India surrounding sexual violence. For one thing, there has been a concerted campaign by newspapers to keep the issue on the front pages.
But, say campaigners and victims of sexual violence in India, the country still has some way to go before all rape survivors receive the justice they deserve.
To find out more, listen to Joanna Jolly's report on the Crossing Continents website.