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Brave Heart triggers a pent-up avalanche-October 1, 2013 In a recent survey of 10,000 men conducted in Bangladesh, China, Cambodia, Indonesia, Sri Lanka and Papua New Guinea, led by South Africa’s Medical Research Council, about one in 10 of the men surveyed admitted raping a woman who was not their partner. When the wife or girlfriend was included, the figure rose to about a quarter. The research was funded by several UN Agencies and Australia, Britain, Norway and Sweden. A previous study by the WHO found that one third of women worldwide said they had been victims of domestic or sexual violence. Rachel Jewkes of South Africa’s Medical Research Council, who led the studies, commented: “It’s clear that violence against women is far more widespread in the general population than we thought.” Sri Lanka For Sri Lanka, the survey showed that 14.5% men admitted to having committed at least one rape. Rape was particularly common within relationships. Rape is a criminal offence in Sri Lanka in terms of Section 363 of the Penal Code. This provides that that a man is said to commit rape, who, except in the circumstances excepted by the section, has sexual intercourse with a woman in circumstances, described below: Firstly, against her will; secondly, without her consent; thirdly, with her consent, but when her consent has been obtained by putting her in the fear of death or of hurt; fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; fifthly, with or without her consent, when she is under 12 years of age. Further Section 364A deals with defilement of girls between 12 and 14, Section 365 deals with ‘unnatural offences’ – carnal intercourse against the order of nature’ and section 365A deals with acts of gross indecency between male persons.
India This veritable volcano of rape, disclosed by the survey, has to be placed in the South Asian context of a criminal court in neighbouring India, the other day sentencing to death four men convicted in December 2012, of gang rape and murder of a 23-yearold New Delhi woman, an upwardly mobile paramedical student, from a rural background, given the heroic name of ‘Brave Heart’ by the Indian media. Her dying declaration implicated the men (she said: “they should be hanged, so that such an incident does not happen with another woman. They should be burned alive.”). Her indomitable fight to survive the brutal and degrading inhuman attack, before unfortunately succumbing to her grievous injuries two weeks after the attack, at a Singaporean hospital, to which she was transferred from the All India Institute of Medical Sciences, New Delhi, due to her critical condition, was widely admired. This horrendous gang rape and the assault on her male companion by the five assassins, roused Indian society, both men and women, to a level never before reached or anticipated, in India. Demonstrators took to the streets, battled the seemingly insensitive political elite, the so-called ‘creamy layer’ of Indian society who, live securely in their walled compounds, on the streets of India’s cities. The Police had to resort to quell the anti elitist violence with water cannons before the political class got the message and gave clear signals that this cancer in Indian and, as the survey shows, South Asian society, will be dealt with. The four men who were sentenced to death had hijacked a bus, under the influence of liquor, with another juvenile, who was tried separately, and given a juvenile’s sentence, after he too was found guilty, had driven on the streets of New Delhi in the dead of night, passing off to be a commercial bus, and enticed Brave Heart and her male companion, who were waiting to take a bus home, after watching a movie, assaulted them, mercilessly gang raped Brave Heart, abused her with iron rods, which resulted in her intestines being pulled out, and later thrown them out of the moving bus. Due to the massive public agitation, the Indian Police acting with the speed of lighting, a very rare show of competence, in relation to cases of sexual abuse, picked up the accused from their hiding places and the Judiciary brought them before a fast track court for trial. One of the accused allegedly committed suicide in jail. Volcano erupts The Brave Heart murder and gang rape was the trigger for the volcano of rape, sexual abuse and sexual assaults against women to erupt, says Khadijah Faruqui, the Director of a Helpline, for abused women set up after the incident. The phones at the helpline centre at New Delhi are ringing off the hook. Director Faruqui says: “The
women in this city kept bearing sexual abuse and violence for so many years. Now the lid has blown off. People decided ‘enough – I’m not going to take this anymore.’” Until recently South Asian women, encouraged by their families, in the male chauvinistic culture of the region, kept silent about rapes or other sexual assaults, which were seen as potentially life-destroying in our cities seeped in ancient notions of women’s ‘honour’ that tend to blame the victims for the violence visited upon them. Indeed, some of the signs held up by the protesting girls in New Delhi, were eloquent: “don’t tell us what to wear, just ask your sons not to rape,” for example. Other forms of sexual harassment, like being groped on buses, stalked, and verbally harassed in the streets are so common place that South Asian women consider just a routine occurrence – the despicable Eve Teasing, as it is sadly labelled in India, considered only as a mere routine annoyance, worthy of a complaint to sympathetic friends only. The fatal attack of horrendous, perverted and degrading brutality on Brave Heart provoked an avalanche of national sympathy and anger. It triggered an avalanche of reform and activist mobility which will have far-reaching consequences for India and South Asia. The first and most important factor is that sexual offences are out of the closet. The complaints on Faruqui’s Helpline, reporting alleged rapes, for the period January to mid August 2103, after the Brave Heart depravity, was 1,036. This is an increase of nearly 40% on the number for the same timeframe in 2012. There was a six-fold increase in molestation complaints. Advocate of the Supreme Court Karuna Nandy says: “There has been something of a cultural shift – a shift from shame to a sense of entitlement to one’s own bodily integrity and dignity.” But says Nandy, there are still limitations: “It also depends on the status of the victim and their ability to put pressure on various mechanisms in the police station.” Anuja Gupta, Director of a Centre which helps survivors of childhood sexual abuse, says: “Reporting crimes and coming forward to seek help is absolutely linked to the social climate that allows, or don’t allow, that to happen… With the whole Delhi rape case, and the protests surrounding that, a certain secrecy or a certain taboo around using the word sex or sexual assault has been lifted.” In Brave Heart’s case, the Judge presiding over the special fast track court Judge Yogesh Khanna declared that “the investigation was buoyed by the exceptional initiative” by the Police. The Delhi Police have received praise for the speedy investigation into the case. In the normal run of things, the Indian courts are famous
for their snail’s pace, with around 30 million cases pending in the High Courts and District Courts, out of which approximately 24,000 are rape cases, of which it is estimated that less a quarter are likely to end up with a conviction. Advocate Nandy has said: “The trial was fast enough. The court had to make sure that the judgement was robust enough and that these were the actual culprits.” Justice Verma Commission One of the commendable results of the Brave Heart tragedy was that the India Government appointed a Commission consisting of retired Chief Justice J.S. Verma, former Judge of the High Court Justice Leila Seth and former Solicitor General of India Gopal Subramaniam to recommend amendments to the Criminal Law so as to provide for quicker trials and enhanced punishments for criminals accused of committing sexual assault against women. The Commission was appointed on 23 December 2012, within days of the Brave Heart tragedy and reported on 23 January 2103. The Commission made recommendations on laws relating to rape, sexual harassment, trafficking and child sex abuse, medical examination of victims, police, educational and electoral reforms. The Commission was of the view that rape and sexual assault are not merely crimes of passion, but an expression of power. The Commission recommended that exception of rape within a marriage, not amounting to the criminal offence of rape, found in the Indian Criminal Code (as well as Sri Lanka’s) should be removed. They felt that marriage should not be considered as an irrevocable consent to sexual acts. When inquiring as to whether there was consent from the victim of rape – the relationship of the victim and accused should not be relevant. The Commission recommended that the definition of sexual assault in the Indian Penal Code should be changed to include all forms of non-consensual, nonpenetrative touching of a sexual nature. Sexual gratification as a motive for the act should be a prerequisite for proving the offence. The Commission wanted an offence of verbal sexual assault be enacted, including words or gestures that create an unwelcome threat of a sexual nature. The offences under the present law regarding sexual harassment of women in the workplace should be expanded to include domestic workers, the requirement of conciliation being first attempted should be removed, the employer should pay compensation to the harassed employee, the internal complaints committee required by the present law should be replaced by a Tribunal, which will receive and adjudicate on all complaints of sexual harassment. On the medical examination of rape victims, the Commission recommended that the
‘two finger test’ presently used should be discontinued. The previous sexual experience of the woman should not be relied upon for deciding the consent or the quality of the consent allegedly given b the victim. The Commission recommended that the recent Representation of the People Act (1951) which disqualifies candidates for crimes related to untouchability, secularism, fairness of elections, sati and dowry, should be amended to include the disqualification candidates who have been convicted of committing sexual offences. On the management of cases filed for offences against women, the Commission recommended that all Police stations should have rape crisis cells, which should be notified as soon as a First Information Report is filed on a sexual assault allegation. Police stations should have CCTV installed at the entrance and in the questioning room, members of the public who assist the victim should not be treated as wrongdoers, are among the other proposals made. The Commission also made farreaching recommendations on acid attacks, offences against women in conflict areas, trafficking and child sexual abuse, punishment for crimes against women, police reforms and education reforms, among other areas. Far-reaching recommendations The Justice Verma Commission made very far-reaching recommendations to bring India’s law on sexual offences into the cutting edge of world class legislation for the protection of women and children. The Commission was assisted by a superb team of volunteers, recent graduates of the world’s best law schools, students of Indian origin who had recently qualified and returned to India. The type the Chinese call the ‘sea turtles,’ students who travel abroad to study and return home, like the sea turtle which returns to lay its eggs to the same beach where it was born! If enacted in holistic form, it would have been a benchmark for the world standard for the sexual protection of women, a model legalisation. Unfortunately the political class in India did not agree and the legislation which finally came out of Parliament was an apology of a law. The attitude of the Indian political class to rape, with some exceptions of course, could be best summoned by this example from the Legions of ancient Rome. A company of the Roman Legionnaires are being briefed by their Commanding Officer before attacking a hostile village in Gaul. The Officer says, ‘Cohort One, you burn, Cohort Two – you loot.’ Before he can go any further, the senior Legionnaire of Cohort Three protests, ‘Sir, you just cannot expect my men to go raping again!’ One of the defence lawyers in the Brave Heart case is being tried by India’s Bar
Council for professional misconduct, after making comments outside the Court house after the conviction of his clients, to the effect that ‘he would burn his daughter alive, if she was having premarital sex and went out late at night with her boyfriend’. The comments were obviously intended at Brave Heart. The rapacious sprit of the Roman Legionnaires lives on, in today’s India! Strong views But at least the late Justice Verma’s Commission report (he passed away soon after) remains as his legacy – a benchmark of what the law should provide to safeguard the sexual rights of the community. Cross sections of Indian women have expressed strong views on the aftermath of the Brave Heart case. Ranjana Kumari, of the Centre for Social Research in Delhi, sees progress in at least how attacks on women are discussed. A decade ago the Hindi word for rape, balatkar, she says, was nearly taboo. Frank discussion is easier now. The newspapers have stopped using the word Eve Teasing, the trivialising euphemism for sexual harassment. Kumari regrets the obsession with seeing young women as ‘pure,’ needing control and protection. Novelist Niranjana Roy says there has been a rise in regressive statements; behaviour intended to curb women’s freedoms under the guise of ‘protection’. In India ‘Rape Culture’ is fuelled by an acceptance of inequality and of embedded violence. The rapes might not stop, she says, but the conversation ignited by the Brave Heart incident is not stopping either. Activist Kavita Krishnan points out that in August 2013, after the gang rape of a 22year-old photo journalist in Mumbai, in a derelict abandoned textile factory, when the city’s Police Chief almost implied that rapes were happening because women were kissing in public and blamed rape on a promiscuous culture, he was roundly condemned and lambasted across the board at all levels. The convicted rapists and murderers in the Brave Heart case still have a right of appeal to the superior courts. But the volcano and avalanche they have triggered is bound to have a positive, long-lasting effect on the law and social culture relating to the abuse of women in South Asia. Brave Heart did not die in vain. (The writer is a lawyer, who has over 30 years of experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)
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