NHRC study recommends protecting rape accused from ‘false cases’ till found guilty
The study, which was commissioned by the NHRC and conducted by the Centre for Women’s Development Studies, sought to understand sexual violence against women from the perspective of sexual predatorsUpdated: Oct 27, 2020, 11:26 IST
The National Human Rights Commission (NHRC) has recommended protecting the rape accused from “false cases” by keeping their identities under wraps until they are found guilty.
The NHRC recommendation has come at a time when rape cases are leading to public outrage and the public and the political parties alike are demanding the strictest action against the accused.
A study, which was commissioned by the NHRC and conducted by the Centre for Women’s Development Studies that is affiliated to the ministry of education, sought to understand sexual violence against women from the perspective of sexual predators.
It said, “While revealing the identity of victims of sexual crimes is a punishable offence, the same principle does not hold in the case of alleged or actual offenders, whose names and personal details can be freely circulated. A time has come, when there is a need for safeguards to protect the accused from ‘false claims’ .”
The study – titled “Interrogating violence against women from the other side: An exploratory study into the world of perpetrators” – asserted that anonymity would be beneficial, particularly for the juvenile accused.
“Although issues of identification and naming of the principal actors may not appear to be significant in the larger scheme of things, they have major ramifications especially for accused, who are later found to be innocent,” it said.
It suggested introducing reforms for perpetrators rather than declaring them guilty at the time of framing of charges against them. “…. a crime like rape must be understood not only in the context of an illegal act that breaches a given statute but as a transgression aimed at violating the agency of the victim(s)” and “there is a crucial need to understand the reasons behind such crimes,” it stated.
The study has also dwelt on the concept of consent in a sexual activity. “According to the POCSO (Protection of Children from Sexual Offences) Act, 2012, sexual activity with anyone below 18 years of age is illegal, and yet today’s social context has created the conditions for such interactions. Consequently, the narrative of ‘false cases’ and ‘framing’ by the girl and her family come to represent the deep tensions between tradition and modernity,” it said.
“Perhaps, for the first time, women are exercising sexual autonomy and choice in a social milieu in which premarital sex for pleasure especially for women is still very much taboo,” it added.
However, activists don’t agree with keeping the name of accused persons in rape cases ‘anonymous’.
Lawyer and women rights activist Vrinda Grover said, “What public purpose will be served by anonymising the name of the adult accused in cases of rape? If the argument is that disclosure of the name of an accused impacts his reputation, then that would be relevant for accused of all crimes, including, for example, acts of terrorism. There is no rationale to create an exception for this purpose.”
“By raising the age of statutory rape to 18 years, the State has enabled the criminalisation of consensual sexual relationships between adolescents and allowed parental and societal control over the lives of young people. It is these cases that provide fodder for the “false cases” narrative. There is compelling evidence available for the state to amend the law and revert the age of statutory rape to 16 years,” Grover added.
Women rights activist and Secretary of All India Progressive Women’s Association (AIPWA), Kavita Krishnan said “The solution to this issue is not to put an embargo on naming persons accused of rape. The solution lies in lowering the age of consent to 16, as it was before 2013, when the government went against the Varma committee recommendations and raised the age of consent to 18”.
“Using these facts about girls’ parents criminalising consensual relationships to feed the bogey of ‘false cases’ is disingenuous, dishonest. There’s no evidence that false cases filed by women is a phenomenon at all. In cases where women (not parents and caste or communal outfits) file rape cases, why should the accused not be named? In many cases the accused already enjoys impunity, and popular movements are needed to break that impunity. If we didn’t know rape accused Kuldeep Sengar was being protected from arrest because he was a ruling party MLA, would Sengar be convicted and jailed today?” Krishnan added.
The researchers interviewed about 70 juvenile and adult offenders lodged at three facilities in the national capital such as Observation Home for Boys Sewa Kutir at Kingsway Camp, where undertrial juveniles, aged between 15 to 18 years, are housed; Special Home for Boys at Majnu Ka Tilla, which is for convicted juveniles; and Tihar Jail, where adult inmates are lodged.
Experts from the fields of psychiatry, law, police, media, gender, child and women’s rights were also interviewed before arriving at the conclusion.
Majority of these sexual predators claimed that they had a “romantic or consensual relationship” with their victims, whose family members were allegedly responsible for framing them.
About 40% of juveniles of the 43 boys interviewed at Sewa Kutir said they had a consensual sexual relationship with their victims that either turned sour or was disapproved of by their parents. “In these cases, the boy usually blamed the parents of the victim for framing him. Some of the respondents expressed concern for the security of the victims, who went back to their family members after their arrest. Four of the respondents accepted that they had committed rape,” the study said.
Three out of the 43 boys said they were part of the crime under “peer pressure”.
“Three of boys noted that they were part of a gang that committed rape; but they denied having committed the act themselves. They said they were either making a video of the act being committed by other gang members or just watching it from a distance” the study added.
At least seven cases out of the 43 relate to “elopement”, where juveniles eloped with the victims without realising the legal implications of underage sexual relationships or marriage.
The reasons for rape given by eight juveniles interviewed at Special Home for Boys at Majnu Ka Tilla mirrored the issues and themes found in the narratives in the interviews done at Sewa Kutir, the study cited.
In Tihar Jail, 20 adults, accused of sexual assaults, were interviewed. “A majority of the interviewees in Tihar Jail denied the charges. Most of them blamed the criminal justice system, which was in their view tilted towards the victim. Others claimed that the charges were levied against them due to reasons such as family rivalry or alcoholism. Some others denied the charges claiming they were co-accused in a gang-rape, in which they played little to no part,” it added.
Neeraj Kumar, a former Delhi Police commissioner, who had handled the investigations during December 2012 Nirbhaya gang-rape case in the national capital, agreed with some of the findings of the study.
“I agree. It is widely accepted that adding severity of punishment to a certain offence does not necessarily lead to its prevention. However, I do feel that the quantum of punishment prescribed for an offence reflects the view of the society: how it looks at the offence; how it sends the message that justice has been done and the victim avenged. All these are important attributes to a healthy justice system,” he said.
“It is a fact that rape laws have been misused by stretching the concept of consent a bit too far. Miscarriage of justice on this count can be prevented by alert and mindful judiciary. Treating adults accused of rape on par with juvenile offenders is stretching the logic a little too far. By the same argument, adults accused of other crimes should also not be named until framing of charge. This suggestion appears untenable,” he added.