Sexual assault of disabled women: Getting the law right

infochangeindia.org/disabilities/analysis/sexual-assault-of-disabled-women-getting-the-law-right.html

Simply increasing the punishment or shifting the burden of proof to the accused, without making sure that the
testimony of the prosecutrix is taken seriously, will not bring justice to disabled victims of sexual assault, says
Saptarshi Mandal in this critique of the Criminal Law Amendment Bill 2012

The Cabinet recently cleared the Criminal Law Amendment Bill 2012, which if passed, would bring about radical
changes in the law governing sexual assault. (1) Among several other things, for the first time, there would be a
legal provision specifically targeting sexual offences against disabled people. Incidents of sexual assault against
the disabled are rampant but mostly go unreported. In recent times however, the issue has acquired some
visibility due to a large number of incidents of sexual assault against disabled women, particularly from Bengal,
being reported in the national media. (2) The Amendment Bill categorises sexual assault against the disabled as
a serious sexual offence akin to sexual assault in custody or against a pregnant woman or minor. (3) Given that
it is an issue which has largely remained unacknowledged and invisible, its inclusion in the law might be seen as
a positive development. However, the manner in which this is being proposed is inadequate and might be
inconsequential, for it focuses on the wrong problem.
The proposal to include the disabled in the law on sexual offense is intertwined with the history of rape law
reform in India. In 1983, major changes were brought in the law on rape for the first time since its enactment in
1861, following the nationwide campaign by the womens movement in the wake of the Supreme Court judgment
in the Mathura case. (4) One of the highlights of the 1983 amendment was Section 376 of the Indian Penal
Code, which covered custodial rape by the police, public servants, jail authorities, remand home authorities,
gang rape and rape of pregnant women and minors. The greater vulnerability of the woman vis--vis the
aggressor in such situations justified their being clubbed together in one clause. In keeping with this
understanding, the burden of proof was reversed and placed on the accused in such situations. (5) That is to say,
once it is proved that sexual intercourse had taken place and the prosecutrix says that it was without her
consent, then the court must presume that she did not consent and it would be upon the accused to disprove the
allegation. Further, the minimum punishment in such cases of aggravated rape was 10 years, which was seven
years otherwise. The Bill that resulted in the 1983 amendment was referred to a joint committee of parliament.
Following representations made by womens groups, the joint committee report had suggested that rape on
physically or mentally disabled women be included within the ambit of the proposed clause on custodial rape.
But ultimately the suggestion did not make it to the resultant amendment, which incorporated Section 376 in the
Indian Penal Code.

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A radical overhaul of the substantive rape law was attempted by the womens movement in 1993, which revived
the suggestion of the joint committee relating to rape of disabled women, made 10 years ago. (6) Thus persons
suffering from mental or physical disability was proposed to be added to the existing list of offences categorised
as aggravated sexual assaults. The 1993 proposal did not lead to an amendment to the law. But the formula of
extending legal protection to disabled victims of sexual assault by categorising it as an aggravated sexual
assault with its attendant procedural and evidentiary features was reproduced, with minor variations in language,
in all the subsequent law reform efforts by the womens movement -- in 2000-06 (7), 2010 (8) and now in the
2012 Bill. Clearly, this has emerged as the lone strategy of addressing the problems faced by disabled women in
their interaction with the legal process in rape cases.
But we need to ask two crucial questions in relation to the legal approach delineated above. First, how has the
custodial rape provision that has existed in the law since 1983 played out in actual cases? The conviction rate is
extremely low in such cases and the handful of reported judgments on custodial rape do not reflect any impact of
the 1983 amendment. A 1994 report of the Peoples Union for Democratic Rights on custodial rape in Delhi
describes how the amendment did not bring any change whatsoever in the manner in which trials were
conducted in the lower courts. (9) So the intended effect of the amendment, which was to counter the power
imbalance between the aggressor and the victim by making the law favourable to the latter, was not really
reflected in the actual business of trial in these cases.
The second question that must be asked is, what aspect of the current legal process involving disabled victims of
sexual assault does the proposed amendment seek to target or alter? Court judgments show that the main
reason why cases of sexual assault against disabled women fail to get the accused convicted is that the
evidentiary value of their testimony is not taken seriously during the trial in the lower courts. (10) The women in
these judgments are either deaf and mute, or only deaf but not mute or have mild intellectual disability that does
not affect their ability to comprehend and narrate their experience of sexual assault. However, as the judgments
show, their testimony is either not recorded at all (11) or even if recorded, done without following the legally valid
procedure (12). As a result, even if the accused is convicted by the lower court based on other sources of
evidence, at the stage of appeal before a High Court, the accused is acquitted owing to the non-recording of the
prosecutrix testimony or non-observance of the legal procedure by the court below.
The Indian Evidence Act 1872 does not debar disabled witnesses from testifying before the court. Section 118 of
the Evidence Act provides that it must be presumed that everybody is capable of testifying, unless there are
extraordinary circumstances such as young age, old age, disease and so on, in which cases the capacity to
testify needs to be specifically assessed. This is further made clear in the Explanation to this section, which
states that a lunatic does not become incompetent to testify simply by virtue of his/her lunacy. A lunatic could
still give evidence, if it is found that he/she is able to respond to the questions put to him/her. The next clause,
Section 119, provides that those who are unable to testify verbally may give his/her evidence by writing or
through signs, in an open court. Thus there is an acknowledgement in the law that some people may not be able
to testify verbally and the law specifically provides for accommodating such witnesses. But contrary to what the
Evidence Act says, trends in judicial decisions reveal that the very presence of disability leads judges to presume
that a witness is incapable of testifying. As the judgments show, running under the surface of judicial pragmatism
is the presumption that disability, irrespective of nature or extent, implies incapacity to comprehend and answer
the questions posed, and hence inability to fully participate in the legal process.
Disregarding and disqualifying the testimony of the prosecutrix weakens the overall case of the prosecution,
leading to acquittal. If conviction of the accused is the objective of moving the legal process in a case of sexual
assault, then the point of intervention of the law reform effort should be somewhere else, rather than where it is
in the Amendment Bill. It is important to remember that even if the burden of proof is placed on the accused, the
legal relevance of the testimony of the prosecutrix is not diminished. If due care is not taken in recording and
apprising the testimony of the prosecutrix, the prosecution case is likely to fail, no matter which party the burden
of proof lies on.
In a recent judgment in a case of murder, the Supreme Court of India reiterated that there is nothing, in law or
otherwise, that prevents a deaf and mute person from being a competent and credible witness. (13) But having
said that, the Court finally refused to rely on the testimony of the wife of the deceased, who was deaf and mute

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and who was an eyewitness to the incident, on the grounds that the interpreter of her testimony during the trial
was her father. Since the father was an interested party in the case, the Court reasoned that relying on his
interpretation of the witness testimony would have made the verdict biased. Given the unavailability of
professional interpreters in public institutions such as courts, the prosecution often turns to special education
teachers who are familiar with sign language to act as interpreters during trials. But when such teachers are not
available, family members of the witness step in as interpreters. This judgment, while affirming the evidentiary
value of the testimony of a disabled witness, also points to the ad hoc arrangements that exist to record such
testimony in the legally relevant manner.
Given this background, it would be more useful if the amendment introduces a provision laying down how
testimony of disabled witnesses may be recorded, by whom, having what qualification and so on. Similar
provisions pertaining to the medical examination of the accused and the victim in cases of rape were added to
the Code of Criminal Procedure (CrPC) in 2005. (14) Admittedly, there are a whole lot of problems with how the
testimony is read and assessed by the judges after it has been recorded, which cannot be addressed by
legislation. (15) But simply increasing the punishment or shifting the burden of proof to the accused, without
making sure that the testimony of the prosecutrix is taken seriously, would not enable us to reach the desired
goal of bringing the abuser to justice, in cases of sexual assault against the disabled.
(Saptarshi Mandal is a legal researcher based in New Delhi)
Endnotes
(1) Review of Rape Laws http://www.pib.nic.in/newsite/erelease.aspx?relid=85422 (last accessed August 22,
2012)
(2) Another Rape in West Bengal, Victim Deaf and Mute, February 29, 2012,
http://articles.timesofindia.indiatimes.com/2012-02-29/kolkata/31110245_1_west-bengal-mute-woman-robberyattempt; Deaf and Mute Athlete Raped in Bengal, June 26, 2012,
http://articles.timesofindia.indiatimes.com/2012-06-26/kolkata/32423722_1_dumb-girl-athlete-police-custody;
Disabled Minor Raped in Hooghly, July 30, 2012, http://timesofindia.indiatimes.com/city/kolkata/Disabled-minorraped-in-Hooghly/articleshow/15263949.cms; Disabled Woman alleges Gangrape, August 21, 2012,
http://articles.timesofindia.indiatimes.com/2012-08-21/kolkata/33302501_1_disabled-woman-gangrape-konaexpressway (last accessed August 22, 2012)
(3) Section 376 (2)(j), The Criminal Law (Amendment) Bill, 2012
(4) Tukaram vs State of Maharashtra, 1979 SCR (1) 810
(5) Section 114-A, Indian Evidence Act, 1872.
(6) Draft Amendment to Sexual Assault Law 1993
(7) Several versions of a Criminal Law Amendment Bill were drafted in 2000, 2002 and 2006. Some of the
amendments suggested by the 2006 version have been incorporated in the law.
(8) Draft Criminal Law Amendment Bill, 2010; the precursor to the 2012 Bill.
(9) Peoples Union for Democratic Reforms. 1994. Custodial Rape: A Report on the Aftermath. Delhi.
(10) {forthcoming} Mandal, Saptarshi. 2012. The Burden of Intelligibility: Disabled Womens Testimony in Rape
Trials, Indian Journal of Gender Studies.
(11) Eg. See, State of Rajasthan vs. Balram, MANU/RH/0502/2009; Suresh vs. State of Maharashtra, 2003 (4)
MhLJ 898
(12) Eg. See, Vinod vs State of Madhya Pradesh, MANU/MP/0556/2009; Dilawarsab Alisab Jakati vs. State of
Karnataka, 2005 CriLJ 2687; Mohan Singh vs State of Himachal Pradesh, MANU/HP/0148/2001
(13) State of Rajasthan v Darshan Singh, (2012) 5 SCC 789
(14) Sections 53A and 164A, Code of Criminal Procedure
(15){forthcoming} Mandal, Saptarshi. 2012. The Burden of Intelligibility: Disabled Womens Testimony in Rape
Trials, Indian Journal of Gender Studies, for more on this.
Infochange News & Features, August 2012

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