Developing Protocols for Women Victims of Sexual Crimes

Developing Protocols for Women Victims of Sexual Crimes

G.S.Bajpai & Preetika Sharma
National Law University, Delhi

Developing Protocols for Women Victims of Sexual Crimes

Abstract
History in India has has left behind social tension, masculinisation, lumpenisation of
society and crime against vulnerable groups. Among the last, women are primary victims and
crime against women are on the rise. (Banerjee, Banerjee, Badhopadhyay & Bhattacharya, 2014)
Among all the forms of crimes against women, the crime of sexual violence is the major issue in
India. It is estimated that 35 per cent of women worldwide have experienced either physical
and/or sexual intimate partner violence or sexual violence by a non-partner at some point in their
lives. (UN Women, 2016) Official statistics by National Crime Records Bureau (NCRB) under
Ministry of Home Affairs (MHA); Report of the Committee on Crime Statistics under Ministry
of Statistics &Programme Implementation; reports in the press, etc, clearly reflects that sexual
violence against women is on a constant increase despite major amendments brought in laws
pertaining to crime against women. Recent news reports have shown that not only the crime is on
increase but the gravity and brutality has crossed all the limits of inhumanity. It is being realized
that technicality and complexity in law has often led to miscarriage of justice in the hands of law
enforcement authorities including judiciary, police, lawyers, etc. There have been cases when the
accused has gone free, because the victim did not file a complaint in time or because of poor
evidence gathering and lacunae in the law. (Jagadeesh, 2010). This paper presents an overview of
the recent developments in laws applicable to sexual violence cases. The paper further deals with
the recent Supreme Court rulings on sexual violence against women, the guidelines or remedies
suggested by Supreme Court and the Protocol & Guidelines by various ministries in order to
recognize the role of healthcare providers to bridge the gap in providing medical evidence to the
courts.
Keywords: Crime against women, Sexual crimes, Sexual violence, Nirbhaya case, Rape
survivors.

Developing Protocols for Women Victims of Sexual Crimes

Developing Protocols for Women Victims of Sexual Crimes
G.S.Bajpai* & Preetika Sharma5
I.

INTRODUCTION
The term sexual violence is often used interchangeably with the terms sexual assault
and rape in general parlance, however, their legal meaning as well as legal implication differs
due to difference of elements and ingredients attached to them. Out of all the term Sexual
Violence is the broadest that refers to a constellation of crimes including sexual harassment,
sexual assault,incest, sexual abuse, molestation, rape and so on an so forth. ( National Institute of
Justice, 2010). Many theorists suggest a number of factors resulting into sexual violence but

modern feminists and activists especially in Indian scenario; draw a connection between sexual
violence and patriarchy. It has been constantly argued that sexual violence is not a crime of
passion but a crime of violence, using sex as a weapon to overpower and degrade the victim. In
her book, Against Our Will, Susan Brownmiller argued that rape is a tool of intimidation used by
men to control and ensure the subordinate status of women. (Brownmiller, 1993).
The deep-rooted patriarchy of Indian society lay exposed when several people, including
senior politicians, type casted the victims of sexual violence, as possibly having contributed to
the perpetration of the crime. (Himabindu, Arora, & Prashanth, 2014). Also, there is a belief that
sexual violence is a result of irresistible sexual impulses continues to dominate the thinking of
majority of the society1. According to this myth, because men have difficulty in controlling
themselves, it shall be responsibility of women to avoid "provoking" a rape that is to say they
must avoid dressing provocatively, acting in a promiscuous manner, shall not go out in public
during late in evening or night, etc.
In past 10 years official statistics by National Crime Records Bureau (NCRB) under
Ministry of Home Affairs (MHA); Report of the Committee on Crime Statistics under Ministry
of Statistics &Programme Implementation; reports in the press, etc, clearly reflects that sexual

** Professor & Chairperson, Center for Criminology & Victimology, National Law University, Delhi.
5 Preetika Sharma, Research Associate, National Law University, Delhi.

Developing Protocols for Women Victims of Sexual Crimes

violence against women is on a constant increase despite major amendments brought in laws
pertaining to crime against women.
II.

EMERGING TRENDS IN SEXUAL VIOLENCE AGAINST WOMEN

As per official statistic of National Crime Records Bureau (NCRB) a total of 3,37,922
cases of crime against women (both under IPC and SLL) were reported in India in the year 2014
as compared to 3,09,546 in the year 2013, showing an increase of 9.2% over the year 2013 and
by 58.2% over the year 2010. (National Crime Records Bureau Report, 2014). 2 These crimes have
continuously increased during 2010 - 2014 with 2,13,585 cases reported in 2010, which
increased to 2,28,649 cases in 2011, which further increased to 2,44,270 cases 2012 and 3,09,546
cases in 2013.3
The crime rate under crimes against women was reported as 56.3 in 2014. Delhi UT has
reported the highest crime rate (169.1) compared to 56.3 at all India level during the year 2014,
followed by Assam (123.4), Rajasthan (91.4), Tripura (88.0), West Bengal (85.4), Madhya
Pradesh (79.0) and Telangana (78.3).
An increasing trend in the incidence of rape has been observed during the periods 2010 2014. A total of 36,735 cases of rape under section 376 IPC were reported during 2014
(excluding the Protection of Children from Sexual Offences Act, 2012).4It has been reported that
there was an increase of9.2% from 2010 to 2011, an increase of 3.0% from 2011 to 2012 and
further an increase of 35.2% in the year 2013 over 2012 and an increase of 9.0% in 2014 over
2013.5
Out of all the cases reported of rape14.0% of rape cases were reported in Madhya
Pradesh (5,076 out of 36,735 cases) followed by 10.2% of cases in Rajasthan (3,759 cases), 9.4%
in Uttar Pradesh (3,467 cases), 9.3% of such cases in Maharashtra (3,438 cases). Mizoram
reported the highest crime rate of 23.7 followed by UT of Delhi at 23.2 as compared to national
average of 6.1.6 Thus it can be clearly stated that there has been an upward shift in the number of
cases of sexual violence against woman.

III.

RECENT LEGISLATIVE DEVELOPEMENTS IN CRIMINAL LAW

Developing Protocols for Women Victims of Sexual Crimes

The horrific incident of gang-rape of a 23-year-old woman in a moving bus on the night
of December 16 in the capital city of India which became a symbol of national shame led to
witnessing of upsurge that was never witnessed in the entire history of India. The unfortunate
incident gave a platform for an inclusive debate for better laws and greater gender sensitivity.
(Duttaa, 2013). Even though a lot of sexual crimes are being reported every day, Nirbhaya case
only had more attention from media, social, political and legal systems. (Sasikumar, & Madhan,
2015). Post the Delhi gang-rape incident, major changes were brought in substantive as well as
procedural laws on sexual violence. Stringent laws with death penalty were enacted as the
underlying presumption is that stringent punishment acts as a deterrent and bring to an end
sexual violence in the country, despite evidence to the contrary.7 So every time a fresh incident of
rape is highlighted in the media, the demand for stringent laws gets reiterated. 8 The Criminal
Law Amendment Act (CLA) 2013 has expanded the definition of rape to include all forms of
penetrative sexual violence (oral, anal, vaginal) including objects/weapons/fingers. It has further
introduced new offences in the category of acid attack, sexual harassment, public disrobing of a
woman, voyeurism, stalking, etc. A recognized right to treatment for all survivors/victims of
sexual violence by the public and private health care facilities have been introduced and failure
to treat is now an offence under the law.9 The law further disallows any reference to past sexual
practices of the survivor. However it can be argued that the entire public debate arising out of the
2012 Delhi gang rape incident has centered round the issues of enacting a strong law and
prescribing harsher sentences.10 It has failed to recognize, more practical aspects and the
fundamental issues that are encountered in registering complaints, functioning of the police,
investigation procedure including the protection of witnesses, fast and efficacious prosecution
and an unbiased adjudication in court of law. In other words it can be said that where new laws
have been enacted, their implementation remains still a far reaching goal.
IV.

RECENT RULINGS BY SUPREME COURT OF INDIA IN RAPE CASES

It can very well be stated that judiciary has played a proactive role to act as a catalyst of
social change. The Supreme Court of India has many times filled the gaps in existing legislations
while going far beyond its ambit of power. However if we see in particular history is filled with a
plethora of cases where the highest court of land, has failed to prevent miscarriage of justice in
cases of sexual violence against women. There have been instances where justice has been

Developing Protocols for Women Victims of Sexual Crimes

denied to the survivors/victims of sexual violence. The infamous ruling of the Supreme Court in
Mathura rape case,11 in the late 1970s became the catalyst for nationwide anti-rape movement.
The Supreme Court had aquitted two policemen who had raped a 16 year old illiterate tribal girl
in the premises of Poloce station while on duty on the ground that there were no injuries on her
body and she might have consented to the sex. Further, the Court contended, since the girl had
eloped with her boyfriend and was not a virgin, she could not have been raped. (Agnes, 2013).
The decision led to the amendment of Evidence Act in 1983, allowing the womans word to be
trusted for absence of consent on her part. Similarly, the Sexual Harassment of Women at
Workplaces Act, 2013, was the outcome of the Vishakha Case,12 after Bhanwari Devi protested
against the acquittal of the men who gang-raped her. Also recently, Criminal Law Amendment,
2013 has been outcome of 2012 Delhi gang-rape case. However, one can argue that recently,
there has been changing trends in role of Indian Judiciary while dealing with such cases.
Sexual harassment in the Supreme Court premises
Sixteen years after the historic decision in Vishaka v. State of Rajasthan,13 Supreme Court
issued directions to address sexual harassment of women in the Supreme Court premises. The
Honble court observed the lack of the law in this area and directed all employers to adopt
guidelines framed by it to address sexual harassment at the workplace (Supreme Court). The
Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India
(Prevention, Prohibition, and Redressal) Regulations, 2013, will look into complaints of sexual
harassment against all women in the premises of the Supreme Court.
Consent as a ground of refusal for conviction in cases of rape
Sections 375 and 376 of the Indian Penal Code (IPC) define and provides for the
punishment for offence of rape. The general principle in Section 375 is that if a man commits a
sexual intercourse with a woman below the age of 16, with or without her consent, he is guilty of
rape. But if the woman is wife of the accused and she is above 15 years of age, the act is not
rapethat is to say marital rape is not a crime in India. A nominal punishment is provided if the
wife is between the age of 12 and 15 years or isotherwise living separately from him.
The establishment of the crime thus it can be said hinges on consent - did the woman
consent or was she forced into having sexual intercourse? The most crucial question before the

Developing Protocols for Women Victims of Sexual Crimes

courts in cases of rape is to find out whether there was free and informed consent on the part of
the woman who has allegedly been raped. In this respect the Supreme Court has gone far beyond
to interpret the word consent depending upon the facts and circumstances of different cases.
Establishing legal consent to prove rape has a troubled history in India, where the courts
have repeatedly assumed the womans consent due to lack of or insufficient physical injury, her
past moral character and sexual history, thereby acquitting rapists. (Sircar & Bhanot, 2008).
It is important to note that resistance estanblishes two element of crime: force and non
consent. Theses are essential in every case in which the complainant has her mental and physical
capacities intact. (Bailey. F. L.& Rothblatt H.B, 2015). However at the same time focus shall be placed
on the nature of consent and possibility of resistance. For example if a womans hands are tied or in cases
where she is subjected to intoxication or made physically incapable to resist then lack of consent cannot
be denied merely because of lack of injury or resistance.

In 2013, Section 53A was added to the IEA. Whenever the question of consent becomes
issue in a prosecution for sexual assault, Section 53A provides that evidence of character of the
survivor or of such persons previous sexual experience with any person shall not be relevant on
the issue of such consent or the quality of consent. Recently in Krishan v. State of Haryana,14 the
court stated that it is not expected that every rape victim should have injuries on her body to
prove that she was not a consenting party. Medical report corroborated with the testimony of the
victim is sufficient.
In Stateof Uttar Pradesh v. Chhotey Lal,15 where the trial court convicted the accused for
the offences punishable under Sections 363, 366, 368 and 376, IPC, the High Court acquitted the
accused on the pretext of delay in registering of FIR, lack of internal or external injury on body
of prosecutrix and due to the fact that she was habitual to sexual intercourse. While reversing the
acquittal, the Supreme Court made the observation that delay in lodging FIR was reasonably
explained by the prosecution and High Court failed to appreciate the same. Supreme Court also
observed that absence of injuries on the body of the prosecutrix can not form a sufficient ground
to discredit her evidence and it is wrong to assume that in all cases of rape there would be some
injury on the external or internal part of the victim.
Errors in Age Verification

Developing Protocols for Women Victims of Sexual Crimes

Age of consent is one of the crucial issues when it comes to the presence or absence of
the element of consent in cases of rape. Itis thus very important that age is verified scientifically
so as to reach to a conclusion on the issue of consent and its relevance in each and every case.It
is being realized that the medical reports and the deposition of the Radiologist cannot predict the
exact date of birth; rather it gives an idea with a long margin of 1 to 2 years on either side.The
Honble Supreme Court in State of M.P v.Munna @ ShambhooNath,16 proceeded to take a very
harsh step by rejecting all evidence relating to the age of the prosecutrix. The court held the
sexual intercourse to be consensual while rejecting evidences including school certificate,
statement of the mother of prosecutrix, opinion of the doctor who performed medical
examination of the prosecutrix and even bone ossification test; despite the fact that all evidences
reflected the age of the prosecutrix to be less than 16 years. Similarly in Sunil v. State of
Haryana,17 the court proceeded to refuse the conviction of the appellant based on lack of
sufficient evidence and record as to approximate dateto determine age of prosecutrix.. In
Arvinder Kaur v. State of Punjab,18 the court refused to accept School Leaving Certificate as a
valid proof of age, without production of admission register.
However in Parhlad and Ors v. State of Haryana,19 the Supreme Court has taken a very
strict view while rejecting the defence of consent by the accused. The court approached to rely
on the evidence from the principal of the primary school, father of the prosecutrix, to hold the
prosecutrix as minor, while holding the observation by the doctor and the ossification report to
be merely of advisory character and not binding on the witness of fact.
The Supreme Court in the case of Mahadeo S/o KerbaMaskev. State of Maharashtra and
Anr.,20 held that under rule 12(3) (b) to Juvenile Justice (Care and Protection of Children) Rules,
2007, it is specifically provided that only in the absence of alternative methods provided under
Rule 12(3) (a) (i) to (iii), the medical opinion can be sought for. The court opined that in the light
of statutory rule prevailing for ascertainment of the age of the juvenile, the same yardstick can be
rightly followed by the courts in order to ascertain the age of a victim as well. The Court thus
relied on the certificates issued by the school authorities indetermining the age of the prosecutrix.
In State of Madhya Pradesh v. Anoop Singh,21 the question that came up for consideration
before Honble Supreme Court was whether the prosecutrix was below 16 years of age at the
time of incident. The prosecution adduced two certificates in support of their case, which were

Developing Protocols for Women Victims of Sexual Crimes

the birth certificate and the middle school certificate. The court opined that there was a difference
of just two days in the dates mentioned in both the certificates and thus the discrepancy of two
days in two documents is immaterial. The court further held that in the ossification test is not the
sole criteria for determination of the date of birth of the prosecutrix if certificate of birth and the
certificate of medical examination had been enclosed.
Testimony of prosecutrix
One of the most important question in a prosecution for the offence of rape is how to
appreciate the testimony of the rape victim or prosecutrix. One important aspect is whether the
testimony invariably requires corroboration or not and in case corroboration is required or
desired, what is the nature and extent of such corroboration and the source of such corroboration.
(Bhat, 2014). In Rameshwarv. State of Rajasthan,22 the Supreme Court observed that a woman
who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. In
the case of a girl who is below the age of consent, her consent will not matter so far as offence of
rape is concerned, but if she consented, her testimony will naturally be as suspect as that of an
accomplice.23 Similarly in S. Ramakrishna v. State,24 gave the following observation:
A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is
in fact a victim of the crime. The Indian Evidence Act, 1872 (in short "the Evidence Act")
nowhere says that her evidence cannot be accepted unless it is corroborated in material
particulars. She is undoubtedly a competent witness under Section 118 and her evidence
must receive the same weight as is attached to an injured in cases of physical violence.
The same degree of care and caution must attach in the evaluation of her evidence as in
the case of an injured complainant or witness and no more. What is necessary is that the
court must be alive to and conscious of the fact that it is dealing with the evidence of a
person who is interested in the outcome of the charge leveled by her. If the court keeps
this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is
no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to
Section 114 which requires it to look for corroboration. If for some reason the court is
hesitant to place implicit reliance on the testimony of the prosecutrix it may look for
evidence which may lend assurance to her testimony, short of corroboration required in

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Developing Protocols for Women Victims of Sexual Crimes

the case of an accomplice. The nature of evidence required to lend assurance to the
testimony of the prosecutrix must necessarily depend on the facts and circumstances of
each case. However, if a prosecutrix is an adult and of full understanding the court is
entitled to base a conviction on her evidence unless the same is shown to be infirm and
not trustworthy. If the totality of the circumstances appearing on the record of the case
discloses that the prosecutrix does not have a strong motive to falsely involve the person
charged, the court should ordinarily have no hesitation in accepting her evidence.
In Vijay v. State of Madhya Pradesh,25 it was observed, it is a settled legal proposition
that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which
do not affect the core of the prosecution case, may not prompt the Court to reject the evidence in
its entirety. Also in State of Rajasthan v. Om Prakash,26 it was stated that "irrelevant details
which do not in any way corrode the credibility of a witness cannot be leveled as omissions or
contradictions."
However recently, Supreme Court in State of M.P v. Keshar Singh,27 went on to upheld
the decision of the trial court as well as High Court rejecting the arguments and evidence led by
prosecution on account of minor inconsistencies in the statement of witnesses despite the fact
that evidence was sufficient to establish the commission of rape and injuries suffered by the
prosecutrix.
Identity of the prosecutrix and accused
Section 228A28 of IPC makes disclosure of the identity of victim of certain offences
punishable.Even if it happens to be mentioned in the FIR, anybody publicizing the name of
victim is liable to bepunished with imprisonment up to two years. However, it is disappointing to
note that despite this mandate under Section 228A, many of the judgments pronounced by the
Apex Court mentions the name of the victim includingBavo @ Manubhai Ambalal Thakorev.
State of Gujarat,29RajendraPralhadraoWasnik v. State of Maharashtra,30 etc.
Degrading Medical test for evidence
As per Section 164A (7) Cr.P.C,the medical examination of the victim must be done with
her express consent or of a person competent to give consent on her behalf. 31Many Indian

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Developing Protocols for Women Victims of Sexual Crimes

hospitals routinely subject rape survivors to forensic examinations that include the unscientific
and degrading finger test. Human Rights Watch in its report urged the Indian government to
ban the practice that is used to determine the fact whether rape survivor is habituated to sexual
intercourse or not. It is being observed by the Supreme Court that there has been continuous use
of the archaic practice and the continuous reliance on the results by many defense counsel and
courts. This test is yet another assault on a rape survivor, placing her at risk of further
humiliation. (Kashyap, 2010).32 The Supreme Court has described opinions based on the finger
test as hypothetical and opinionative, and has ruled that they shall not be used against a rape
survivor. Although recent developments have helped to curtail this degrading practice, the
Government of India has yet to take steps to ensure that such test is eliminated by all states.
Further, the Indian government has paid little attention as to how health care and forensic
services be delivered to survivors of sexual violence. 33 The health and criminal justice systems
should work together to ensure that they do not perpetuate damaging stereotypes of survivors.
The Indian government should use its ongoing reform process for laws relating to sexual
violence to prohibit the finger test and standardize the medical treatment and forensic
examinations of survivors of sexual violence in line with the rights to health, privacy, dignity,
and legal remedy.34 The test has often been used by defense in worst manner to shake the
testimony of the prosecutrix especially in cases of unmarried women/girl stating that she was
habitual to sexual activity.
Recalling of victims and witnesses
Recently in AG v. Shiv Kumar Yadav and Ors. 35 The Honble

Supreme court has

observed, though the fair trial is a part of guarantee Under Article 21 of the Constitution of
India however it is well settled that fairness of a trial has to be seen not only from the point of
view of the accused, but also from the point of view of the victim and the society. Witnesses
cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive
cases such as rape cases.
Presumption under Section 114, Indian Evidence Act
Recently, the Supreme Court in Deepak v. State of Haryana,36held that, in cases of sexual
violence against women, once the prosecutrix states in her evidence that she did not consent to

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Developing Protocols for Women Victims of Sexual Crimes

the act of sexual intercourse done by the accused on her and it was committed by the accused
against her will, it is on the accused to give satisfactory explanation in his defence and if he fails
to do so, the court will be entitled to draw a presumption under Section 114-A of the Indian
Evidence Act against the accused holding that he committed the act of sexual intercourse on the
prosecutrix against her will and without her consent. The court also kept a lenient view on the
delay in lodging of First Information Report while holding that explanation attached to delay in
lodging FIR can validly support the creditability of statement of Prosecutrix.
Delay in FIR
In a criminal prosecution, FIR is an important document and it can corroborate the oral
evidence presented/given in the trial.37A prompt FIR, providing details of the crime and names of
the witnesses, can be a solid basis for the conviction of accused.38
As per Section 154 Cr.P.C, on receiving oral information about a cognizable offence, the
police must reduce the information into writing, obtain the signature of the person giving the
information and read it over to her. (Jaising, 2014).39
As per section 166A(c) of the IPC, if a public servant fails to record any information
given u/s 154 of the Cr.P.C regarding offences u/s 326A, 326B, 354, 354B, 370, 370A, 376,
376A, 376B, 376C, 376D, 376E or 509of the IPC shall be punished with rigorous imprisonment
not less than six months which may extend to 2 years and shall be liable to fine. The nonregistration of FIRs by the police contrary to the provisions of the Cr.P.Chas been a major cause
of continuous concern.40
The Supreme Court in State of Andhra Pradesh v. PunatiRamalu,41has held that in cases
of cognizable offences, police cannot refuse to register an FIR on the ground of lack of territorial
jurisdiction. The police is duty bound to take necessary steps and commence an investigation.
The court in State of Punjab v. Gurmit Singh and Ors.,42 took a liberal view with regard to
the delay in lodging the FIR in the offence of rape. The court observed that in sexual offences
and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging
the FIR can occur due to various reasons like reluctance of the prosecutrix or her family

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Developing Protocols for Women Victims of Sexual Crimes

members to go to the police station, the reputation of the prosecutrix and the honor of the entire
family etc.
In Om Prakash v. State of Haryana,43 the court took a lenient view with regard to the
delay in lodging the first information report stating that delay of twenty days in lodging the first
information report attached with explanation for delay gets corroborated by the statement of the
mother of the victim.
Compromise in Cases of Rape
In Satish Kumar Jayanti Lal Dabgarv. State of Gujarat,44 the Honble court refused to
show any mercy towards the person accused of raping a girl who was less than 16 years of age.
The accused pleaded for a lenient treatment on the ground that

accused was married and the

prosecutrix was also married and had a child.

While invoking the proviso to Section 376(2)(g) of Indian Penal Code for awarding lesser
sentence in cases of rape the court in Ravindra v. State of Madhya Pradesh,45 even while
upholding the conviction, reduced the sentence stating that the incident was 20 years old and that
the parties were married and had entered into a compromise. Similarly, in Baldev Singh v. State
of Punjab,46 the court invoked the proviso to Section 376(2) (g) of Indian Penal Code on the
consideration that the case was an old one and that there was compromise entered into between
the parties. On the other hand in State of M.P. v. Madanlal,47 the Court denied the conception of
compromise in a case of rape or attempt of rape. The court stated the body of a woman to be her
own temple and refused to take any liberal approach or thought of mediation for the perpetrator
of the crime who has acceded to enter into wedlock with the victim. Similar approach was
adopted by the court in Shimbhu and Anr. v. State of Haryana,48 wherein, the court observed a
compromise entered into between the accused and a victim of rape cannot be construed as a
leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable
offence and it is an offence against the society and is not a matter to be left for the parties to
compromise and settle. So, in the interest of justice and to avoid unnecessary
pressure/harassment to the victim, it would not be safe in considering the compromise arrived at
between the parties in rape cases to be a ground for the Court to exercise the discretionary power
under the proviso of Section 376(2) Indian Penal Code.

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Developing Protocols for Women Victims of Sexual Crimes

Juvenile Justice (Care and Protection of Children) Act, 2000

The court in Darga Ram v. State of Rajasthan,49 has proceeded to take a very lenient view
in favor of the accused and murderer of a young girl by adopting liberal means of determining
the age of the accused thereby holding him to be a juvenile at the time of commission of offence
and ultimately giving him the benefit of the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 without keeping in consideration the heinous and brutal nature
of crime committed.
Medico-legal assistance to victims/survivors of Sexual Violence
Supreme Court of India in Nipun Saxena and Anr v. Union of India and Ors,50 has
observed that Cases of sexual assault result in physical and psychological consequences like any
other form of violence and thus health care providers have a dual responsibility in regard to
instances of sexual assault. The first is to provide the survivor of sexual assault with medical and
psychological care and the second is to assist in medico-legal proceedings through the collection
of evidence by way of high quality examination and documentation. Honble Supreme Court in
this case also observed that the public health care system lacks a uniform protocol for the
examination, documentation and treatment of a sexual assault survivor across the country.
The Court said the health professionals have continuously overemphasized genital injuries as
being the only factor to determine sexual assault. Further the court has out rightly criticized the
two finger test to examine whether a survivor of sexual assault is habituated to sexual
intercourse. The court said, whether a victim of sexual assault has had sexual intercourse or is
habituated to sexual intercourse prior to the assault has absolutely no bearing on the fact of
whether she consented when the rape occurred and thus subjecting a woman to the two finger
test is humiliating and degrading and violates her personhood and dignity, protected by Article
21 of the Constitution of India and right to equality guaranteed under Article 14 of the
Constitution. The court also stated that it is essential that the medical examination of a
survivor of sexual assault be conducted in a sensitive, dignified and survivor-centered manner.

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Developing Protocols for Women Victims of Sexual Crimes

V.

GUIDELINES & PROTOCOLS FOR SURVIVORS/VICTIMS OF SEXUAL VIOLENCE

Guidelines by Judiciary
Delhi Domestic Working Women Forum v. Union of India,51 the Honble Supreme Court
laid down the broad parameters to assist the victims of rape including legal assistance to be
provided at the police station to the victim of sexual assault, the guidance and support of a
lawyer, informing the victim of her right to representation before any questions were asked of
her, anonymity of the victim, compensation for victims, etc.
In Prakash Singh and Ors. v. Union of India and Ors, 52the Supreme Court issued the
following directions to the Central Government, State Governments and Union Territories for
compliance till framing of the appropriate legislations towards police reform:
1. ConstituteaStateSecurityCommission(SSC)to:
Ensurethatthestategovernmentdoesnotexerciseunwarrantedinfluenceorpressureonthe
police;
Laydownbroadpolicyguidelines;and
Evaluatetheperformanceofthestatepolice
2. EnsurethattheDGPisappointedthrough

meritbasedtransparentprocessandsecureaminimum tenureoftwoyears appointment.

3. Ensurethatotherpoliceofficersonoperationalduties(includingSuperintendentsofPoliceincharge

ofadistrictandStationHouseOfficersin-

chargeofapolicestation)arealsoprovidedaminimum tenureoftwoyears.
4. Separatetheinvestigationandlawandorderfunctionsof thepolice.
5. SetupaPoliceEstablishmentBoard(PEB)todecidetransfers,postings,promotionsandotherse
rvicerelatedmattersofofficersof
andbelowtherankofDeputySuperintendentofPoliceandmakerecommendationsonpostings
andtransfersabovetherankofDeputySuperintendentofPolice.
6. SetupaPoliceComplaintsAuthority(PCA)atstateleveltoinquireintopubliccomplaintsagains
t

policeofficersofandabovetherankofDeputySuperintendent

ofPoliceincasesofseriousmisconduct,including
custodialdeath,grievoushurt,orrapeinpolicecustodyandatdistrictlevelsto
inquireintopubliccomplaintsagainstthepolicepersonnelbelowtherankofDeputySuperinten

16

Developing Protocols for Women Victims of Sexual Crimes

dentof Policeincasesofseriousmisconduct.
7. SetupaNationalSecurityCommission(NSC)attheunionleveltoprepareapanelforselection
and

placementofChiefsoftheCentralPolice

Organizations

(CPO)withaminimumtenureoftwoyears.
In Virender v. State of NCT of Delhi,53Delhi High Court laid down the comprehensive
guidelines for the different branches of the Criminal Justice System, including Police,
recording of statement before Magistrate, medical examination, court, etc.
Also, Honble High Court of Delhi in Delhi Commissioner for Women v. Shri Lalit
Pandey and Anr.,54 passed comprehensive guidelines to be followed by the police,
hospitals/doctors, child welfare committees, courts prosecutors and other authorities including
setting up of Crisis Intervention Centers by the Delhi Commission of Women.55
As per Standing Order 303/2010 of the Delhi Police, a survivor is to be kept informed
about the progress of investigations. In case she gives anything in writing and requests the I.O,
for investigation on any particular aspect of the matter, the same is to be adverted to the I.O.
Psychological Support for Women Survivors of Sexual Assault -A Draft Tool Kit for
Health Settings
Department of Health

Research,

Ministry

of

Health

and

Family

Welfare,

Government of India had set up a Task Force on Gender and Health in 2012, which
identified two important areas as priorities in health care settings. First was the health care
response to women presenting with Partner Violence and the second was to develop Protocols for
women reporting Sexual Assault or Rape. Psychological support for women who experience
Sexual Assault was considered as one of the priorities and the need for a protocol for the same
was emphasized. Since there is no organized services for sexual assault in most hospitals and
health settings the Tool Kit hence is designed in way that any health professional can follow and
use the basic tenets of psychological support when a woman approaches the health services for
help. The tool kit has been designed keeping in view the emotional experience of rape and sexual
assault/violence to develop psychological support services for sexual assault, assessment of
health, etc. it also provides for the role of a counselor in the acute stage or immediately after

17

Developing Protocols for Women Victims of Sexual Crimes

rape. The kit also focuses upon the recovery, restitution, support in reintegration, healing and
recovery of victims/ survivors of sexual violence.
Guidelines & Protocols by Ministry of Health and Family Welfare: Medico-Legal
Care for Survivors/Victims of Sexual Violence
The Ministry of Health and Family Welfare thus recognized the critical role to be played
by the Health professionals and health systems in caring for survivors/victims of sexual violence
and collecting relevant evidence so that the culprit could be brought to the book. Thus, the
ministry in March 2014 provided for Guidelines & Protocols, Medico-legal care for
survivors/victims of Sexual Violence in line with WHO guidelines (Sexual Assault Forensic
Evidence or SAFE kit).
The protocol and guidelines recognize the role of health sector in strengthening legal
frameworks, developing comprehensive and multi-sectoral national strategies for preventing and
eliminating all forms of sexual violence. Through these, the Ministry of Health and Family
Welfare proposes to provide clear directives to all health facilities to ensure that all survivors of
all forms of sexual violence, rape and incest, including people that face marginalization based on
disability, sexual orientation, caste, religion, class, have immediate access to health care services
that includes immediate and follow up treatment, post rape care including emergency
contraception, post exposure prophylaxis for HIV prevention and access to safe abortion
services, police protection, emergency shelter, documentation of cases, forensic services and
referrals for legal aid and other services.
The protocol and guidelines aim to achieve the following:
Operationalize informed consent and respect autonomy of survivors in making decisions
about examination, treatment and police intimation.

Specific guidance on dealing with persons from marginalized groups such persons

with disabilities, sex workers, LGBT persons, children, persons facing caste, class or religion
based discrimination.

Ensure gender sensitivity in the entire procedure by disallowing any mention of

past sexual practices through comments on size of vaginal introitus, elasticity of vagina or anus.

18

Developing Protocols for Women Victims of Sexual Crimes

Further, it bars comments of built/height-weight/nutrition or gait that perpetuate stereotypes
about 'victims'.

Focus on history by recognizing various forms and dynamics of sexual violence

including activities that lead to loss of evidence.

Evidence collection based on science and history, with specific guidance for

taking relevant samples and preservation of evidence.

Lay down Standard Treatment protocols for managing health consequences of

sexual violence.

Lay down Guidelines for provision of first line psychological support.

The protocol also provides for Standard Operating Procedure (SOP) for management of
cases of sexual violence:

VI.

To provide comprehensive services

For the smooth handling of the cases and clarity of roles of each staff

To have uniform practice across all doctors in the hospital

CONCLUSION AND SUGGESTION

Current legal framework has failed to cater to the needs of society that rests on
patriarchal character of social institutions. Even more serious situation arises when patriarchal
attitudes are reinforced by caste, communal and class inequalities or when sexual violence is
inflicted on women in police custody, jail or state institution; and when worst forms of sexual
violence are perpetrated by the police, security forces or army. (WSS Net, 2013) Rapes occur
daily in our country and the worst part of it is that adivasi, dalit, working class women, women
with disability, hijras and sex workers are especially targeted based on the knowledge that the
system will not support them when they file complaints of rape.
Vulnerability as a factor
It has been also realized that it is not only the vulnerability of women that leads to sexual
violence against women but also the vulnerability of situations and conditions in which women
live. It has come to light that in many parts of rural India, lackof proper sanitation facilities also
contributes to the commission of sexual crimes against innocent women, as women have to get
out of their houses to use sanitation facilities and thesevulnerable moments are abused by anti-

19

Developing Protocols for Women Victims of Sexual Crimes

social elements for instance in the case of State of U.P. v. Chhoteylal.56 Therefore, there should be
provision of adequate sanitation facilities invillages and urban areas. The State should undertake
the task of providing proper lighting on roads, streets and other common spaces to the citizens as
crime hides in darkness and eradication of darkness is an easy way to minimize crime.
Besides this a large number of directions have been issued by various High Courts and
the Apex Court in respect of the use of dark film on car windows as it has been realized by
concerned authorities including police that such black filmed vehicles are often used in
propagation of major crimes.57It was observed by the Honble Supreme Court inAvishekGoenka
v. Union of India,58that one of the contributory factors to the alarming rise in seriouscrimes like
kidnapping, sexual assault on women and dacoityis use of black films on windows/windshields
of four-wheeled vehicles.
Justice Delayed is Justice Denied
According to legal experts, one of the biggest obstacles in achieving justice for rape
survivors is the prolonged and protracted trials. For a population of over 1.2 billion, India does
not have the sufficient number of courts and other infrastructure, judges and prosecutors which
ultimately leads to a backlog of millions of cases. As per recent news reportsover and above
31,000 rape cases are still pending before the High Courts alone. 59 (The Times of India, 2014).
Since the conviction, in most of the cases, depends on the testimony of victims and witnesses,
the accused take benefit of lengthy trial period to win over the prosecutrix and turn the witness
hostile.Further the conviction rate in cases of rape has come down from 27% to 22% between
2011 and 2013.
The judiciary must take suo moto cognizance of any irregularity in the procedure of arrest
and delays in presenting the accused before magistrate. It has been realized that any delay and
inefficiency in collection of evidence and lack or delay in medical examination and other
investigation formalities should be seen as a criminal offence and the concerned officers or
personnel should be penalized for negligence or dereliction of duty and/or charged with
complicity in the crime.

20

Developing Protocols for Women Victims of Sexual Crimes

Assistance and support services to rape victims
One of the most important aspects of Indian justice delivery system is pertaining to
assistance and support services to rape survivors. The State makes legal provisions for free and
high quality medical treatment, psychological care and shelter for survivors of sexual violence to
overcome possible destitution and social ostracism. This is possible through effective
implementation and budgetary support provided under existing legal provisions and schemes for
compensation and rehabilitation of thevictims of sexual assault. It is important that such
compensation should not be linked to the criminal trial and prosecution. These schemes include
the Victims Compensation Scheme (brought about through a 2008 amendment to section 357A of
the Cr PC), the National Commission for Womens scheme for assistance and support services to
victims of rape, etc.
Scientific Investigation
It is indicated that women victims of violence face a number of problems during
investigations that ranges from lack of expertise in collecting evidence, examining witnesses,
misplacing evidence of rape, delays in receiving forensic reports, charges etc., which result in the
perpetrator's acquittal.In many cases the police does not hold Test Identification Parade, for
instance in Viswanathan and Ors. v. State rep. by Inspector of Police, Tamil Nadu,60where two of
the accused persons were acquitted as no T.I. parade was held to recognize them.
As per a recent study of 40 rape cases tried in Delhidistrict courts that resulted in
acquittals,it has been found that more than 50 percent of the totalacquittals were due to the
failure on part of police to perform adequateinvestigations. (Bhalla, 2013).61 This somewhere
depicts that guilty persons can easily get away with crimesunharmed and there is no fear of
execution. At this point making the police moreaccountable for their actions or inaction and
setting high standards for investigation using worldclass scientific methods is the need of the
hour.62
Sentencing
The current sentencing laws on sexual violence are woefully inadequate.The courts in
India have consistently held that sexual offences ought to be dealtwith a tough hand and lenient

21

Developing Protocols for Women Victims of Sexual Crimes

sentencing with one sided focus on the rehabilitative perspectiveof the offender and ignoring the
impact of such heinous crime on the victim and the societys sentiments would result in
undermining the public confidence in the justice delivery system.
In Dhananjoy Chatterjee v. State of West Bengal,63 the Supreme Court while confirming
death sentence of a person accused of committing rape and murder of a minor girl opined that
shockingly large number of criminals goes unpunished thereby increasingly encouraging
thecriminals and in the ultimate, making justice suffers by weakening the system's creditability.
Theimposition of appropriate punishment is the manner in which the court responds to the
society'scry for justice against the criminal. Justice demands that courts should impose
punishmentbefitting the crime so that the courts reflect public abhorrence of the crime. The court
must notonly keep in view the rights of the criminal but also the rights of the victim of the crime
and thesociety at large while considering the imposition of appropriate punishment.64
Further in Ravji @ Ram Chandra v. State of Rajasthan,65the Supreme Court observed
thatit is the nature and gravity of the crime and not the criminal which is relevant for
consideration of appropriate punishment in a criminal trial. The court will fail to perform its duty
if appropriate punishment is not awarded for a crime which has beencommitted not only against
the individual victim but against the whole society of which thecriminal as well as victim are a
part. The punishment to be awarded for a crime and must conform to the atrocity and brutality
with which the crime is perpetrated.
Recently in Jugendra Singh v. State of U.P.,66the Supreme Court observed that, rape or an
attempt to rape is a crime not against an individual but a crime which destroys thebasic
equilibrium of the society. The court observed that an offence against the body of a woman
lowers her dignity and tarnishes herreputation. It is said that ones physical frame is her temple
and no one has any right of encroachment over it.In the current case an attempt for the
momentary pleasure of the accused lead to the death of a young innocentchild that resulted into a
devastating effect on her family and ultimately the societyat large. When a family of a victim
suffers in such manner, the society as a whole is compelled to suffer asit creates an incurable
dent in the fabric of the social milieu. For this reason the cry of the collective has to beanswered
and respected and that is what exactly the High Court has done by converting thedecision of
acquittal to that of a conviction and imposed the sentence as per law.

22

Developing Protocols for Women Victims of Sexual Crimes

In yet another case of Shimbhu and Anr. v. State of Haryana, 67 the Honble Supreme
Court refused to reduce that sentence of accused on the grounds that compromise has arrived
between the accused and the prosecutrix, the occurrence of incident dates back to 1995 and
victim is happily married and bless with children. While taking a strict view the court observed
that punishment should always be proportionate/commensurate to the gravity of offence. It was
further observed that a compromise entered into between the parties cannot be construed as a
leading factor on the basis of which lesser punishment can be awarded. Rape is a noncompoundable offence, it is an offence against the society and is not a matter to be left for the
parties to compromise and settle. Also observed that in the interest of justice and to avoid
unnecessary pressure/harassment to the victim, it would not be safe in considering the
compromise arrived at between the parties in rape cases to be a ground for the Court to exercise
the discretionary power under the proviso of Section 376(2) of I.P.C.
Sensitization, Awareness and Attitudinal Change in Society
It is estimated that only 4 in 10rapes are reported, largely because of the deeprootedpatriarchy of Indian society. Moreover, inmaximum number of cases, victims are scared to
come forward for fear of being ostracized by their family andcommunity. Those brave enough to
go to the police, face numerous challenges in getting their attacker put behind bars such as
hostile police attitude, unsympathetic forensic examinations, lack of counseling by experts,
shoddy police investigations and weak and lengthy prosecutions in the courts. 68 The worst part of
Indian justice delivery system is that forrapes that get reported, Indias conviction rate is not
more than 26 percent. (Khazan & Lakshmi, 2012). 69 Indifferent attitude, insensitive behavior of
the authorities and the shame that Indian society often attaches to women whoare victims of rape,
has led many of them to commit suicide, drink pesticide, dousethemselves in kerosene and set
themselves alight, or slashing their wrists.70
Different sources explain why women are deterred from reporting, such as a lack of
awarenessof the laws protecting them, a culture of silence, fear of family dishonor, social
ostracism, agender-insensitive police force, the rigors of degrading medical exams to prove rape,
and repeated cross-examinations in the court.71

23

Developing Protocols for Women Victims of Sexual Crimes

Any change brought in legal framework and any change brought about by pro-active role
of judiciary would fail and will not last for long unless society brings change in itself, its attitude
to see sexual violence as a mere result of uncontrolled sexual impulse instead of violence and a
fight to overpower the opposite gender. Patriarchal notions of honor lead us to believe that rape
is the worst thing that can happen to a woman. There is a need to strongly challenge this
stereotype of the destroyed woman who loses her honor and who has no place in society after
shes been sexually assaulted (Thirani, 2012).72

Notes
Women
Against
Sexual
Violence
and
State
Repression.
https://kractivist.wordpress.com/2013/01/03/vaw-justice-verma/

(2013,

January

3)

Retrieved

2 National Crime Records Bureau Report. (2014). Crime in India. (n.d.). Retrieved from http://ncrb.nic.in/
3Ibid.
4Ibid.
5Ibid.

from

6Ibid.
7 Cover Story. (2014, December 20). The fatal flaw in the anti rape campaign. Tehlka Magazine. 11 (51)
Retrieved from http://www.tehelka.com/2014/12/the-fatal-flaw-in-the-anti-rape-campaign/
8 Ibid.
9 The Criminal Law Amendment Act 2013 (Act 13 of 2013), Section 357C Cr.PC says that both private and
public health professionals are obligated to provide treatment. Denial of treatment of rape survivors is
punishable under Section 166 B IPC with imprisonment for a term which may extend to one year or with fine or
with both.
10 Supra. Note 1
11Tuka Ram And Anr v State of Maharashtra, AIR 1979 SC 185.
12Vishaka and others v State of Rajasthan and others, AIR 1997 SC 3011.
13Ibid.
14 2014 (7) SCALE 76.
15 (2011) 2 SCC 550.
16 2015(9) SCALE 815
17 (2010) 1 SCC 742.
18 2007(3) RCC (Crl) 818.
19 2015 (8) SCALE 436.
20 (2013) 14 SCC 637.
21 2015(7)SCALE 445
22 AIR 1952 SC 54.
23Ibid.

24AIR 2009 SC 885.

25 (2010) 8 SCC 191
26 AIR 2007 SC 2257.
27 Criminal Appeal No. 2244 of 2009.
28 Section 228A of the Indian Penal Code, 1860) says, No person can disclose the name of the rape victim and if anybody
discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be
liable for fine.

29 (2012) 2 SCC 684.

30 (2012) 4 SCC 37.
31 Code of Criminal Procedure, 1973 164A (7) says Nothing in this section shall be construed as rendering
lawful any examination without the consent of the woman or of any person competent to give such consent on
her behalf.
32Kashyap, A. (2010, Sepetember 6). India: Prohibit Degrading 'Test' for Rape. Human Rights Watch Report
Retrieved from https://www.hrw.org/news/2010/09/06/india-prohibit-degrading-test-rape
33Ibid.
34Ibid.
35 2015(9)SCALE649.
36 (2015) 4 SCC 762.
37Thulia Kali v State of Tamil Nadu,AIR 1973 SC 501.
38Jagannath Narayan Nikam v State of Maharashtra, 1995 Cri LJ 795 (Bom).
39Jaising, I. (n.d.). Locating the Survivor in the Indian Criminal Justice System: Decoding the Law. Lawyers
Collective, Womens Rights Initiative. Retrieved from http://www.lawyerscollective.org/publications/locatingsurvivor-indian-criminal-justice-system-decoding-law.html
40 Ibid.

41 AIR 1993 SC 2644.

42 (1996) 2 SCC 384.
43 (2015) 2 SCC 84.
44 (2015) 7 SCC 359.
45 (2015) 4 SCC 491.
46 (2011) 13 SCC 705.
47 Criminal Appeal No. 231 of 2015.
48 (2014) 13 SCC 318.
49 (2015) 2SCC 775.
50 Writ Petition (Civil) No. 565 of 2012.
51 (1995) 1 SCC 14.
52 (2006) 8 SCC 1.
53 Criminal Appeal No. 121 of 2008, High Court of Delhi.
54Writ Petition (Crl) No.696 of 2008.
55 Delhi Police, Standing Order No. 303 of 2009.
56 Supra Note 15
57Court on its own motion vUnion of India & others, 139 (2007) DLT 244.
58 (2012) 5 SCC 321.
59 TNN. (2014, December 14). Over 31,000 rape cases pending in high courts. The Times of India. Retrieved
fromhttp://timesofindia.indiatimes.com/india/Over-31000-rape-cases-pending-in-high-courts/articleshow/45542590.cms

60 AIR 2008 SC 2222.

61Bhalla, N. (2013, January 16). Analysis: How India's police and judiciary fail rape victims. Reuters. Retrieved
from http://in.reuters.com/article/2013/01/16/india-delhi-gang-rape-women-safety-policidINDEE90F0AY20130116
62 Ibid.
63 (1994) 2 SCC 220.
64 Ibid.
65 (1996) 2 SCC 175.
66 (2012) 6 SCC 297.
67 Supra Note 48..
68 Supra Note 61.
69 Khazan, O., & Lakshmi, R. (2012, December 29). 10 reasons why India has a sexual violence problem. The
Washington Post. Retrieved from https://www.washingtonpost.com/news/worldviews/wp/2012/12/29/india-rapevictim-dies-sexual-violence-proble/
70 Ibid.
71 Canada: Immigration and Refugee Board of Canada. (2012, May 9). India: Rates of women lodging complaints with
police for violent crimes; police response to female victims of violence. Retrieved from
http://www.refworld.org/docid/50b4a23b2.html

72

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