Access to justice for victims of sexual violence under the national perspective

Summary of a research paper titled barriers to access to justice for rape survivors in India

The research report discussed the state of women's safety in India while noting the Nirbhaya event in
2012 and the rape and murder of a Hyderabad veterinarian. It highlighted how women in India, regardless
of age, continue to be insecure, and how the stories of rape survivors are even more heartbreaking.
Human rights watch claims that rape survivors in India encounter considerable obstacles to receiving
necessary support services and justice. It also mentions that access to justice and fair treatment entails
treating victims with compassion and respect for their dignity by the Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power. They have a right to use the legal system and receive
prompt redress for the injustice they have experienced under the provisions of the law. It contends that
judicial and administrative mechanisms should be established and strengthened where necessary to ensure
that victims are given redress through formal or informal processes that are quick, fair, affordable, and
accessible. Victims should also be made aware of their rights in seeking relief through such mechanisms.
However, children and women who survive rape and other forms of sexual violence in India tragically
frequently experience humiliation at police stations and hospitals. They must knock on each door of
justice, which results in secondary victimisation for them. In addition, the daily claims that police
regularly refuse to file charges, witnesses and victims are not given any protection, and doctors continue
to demand humiliating "two-finger" examinations. Access to justice for rape survivors is an illusion, as
evidenced by the horrific death of the Unnao rape survivor who was burned alive by the accused. These
barriers to justice and dignity are made much more severe by the lack of adequate medical care,
counselling, and legal representation for victims during judicial proceedings. The changes made to the
law and other areas since the Nirbhaya incident have not yet been fully implemented.

The reason for the low conviction rates in the nation is survivors who bring forward situations where the
accused came from a wealthy family and faced pressure from law enforcement officials to withdraw their
case or "negotiate" rather than go through the legal system. For survivors from Dalit, Adivasi, and
Muslim communities who encounter sex discrimination in addition to caste and religious discrimination
while accessing the legal system, these obstacles are amplified. All of these components make up a
system where a victim of abuse must endure countless humiliations to obtain justice.

According to the study, India has significantly altered its rape laws in recent years, including broadening
the definition of rape to clarify that the lack of physical resistance is not equivalent to consent. The
Protection of Children from Sexual Offenses Act (POCSO) of 2012 is another recent reform. It called for
the establishment of child-friendly courts and practises that would not require minor survivors to make
numerous court appearances to deliver their testimony. Additionally, law enforcement officials who fail
to register complaints made by sexual violence survivors will also be subject to mandatory jail time. The
Justice Verma Committee on Amendments to Criminal Law issued numerous recommendations after the
infamous Delhi gang rape case in 2013, however many of those suggestions have yet to be implemented.

To create good systemic change, state officials should closely collaborate with civil society organisations,
activists, and survivors who may offer priceless knowledge and experience, according to the paper's
recommendations for the Indian legal system. The urgent need of the hour is for procedural reforms,
proper application of current legislation, and the reduction of the backlog of criminal court cases. greater
sensitivity in handling cases of sexual assault, increased police accountability, and compassion for
survivors. It's also essential to allot enough money to combat and eradicate gender-based violence. For
women's rights organisations to provide support services to women and girls at the local level, they must
get adequate funding.

Summary of a research paper titled the silent male rape victims in India

Male rape in India is the subject of the research paper's critical analysis. According to the article, male
rape is a common problem in society that is not recognised by the law and that can have a significant
number of adverse impacts on a victim. There are laws protecting women from rape, sexual assault, and
other forms of exploitation because society cares about them, but there are none protecting men from
sexual assault. The research claims that raping men is frowned upon in Indian culture and carries a bad
reputation among heterosexual men. Raping men is always viewed from the standpoint of manliness and
masculinity, the paper says. As a result, the majority of the victims were afraid to report the sexual assault
they had endured. They typically fear that if they disclose the assault, people would question their sexual
identity, cast them as homosexuals, or may even refer to them as masculine. Myths about males in society
played a significant role in this dread, which drove thousands of male victims to conceal and deny their
victimisation and led to thousands of rape cases not being recorded.

Section 375 of the Indian Penal Code (IPC) defines rape as "sexual intercourse with the woman against
her will, without her consent, by coercion, misrepresentation, or fraud, or at a time when she is
intoxicated or duped, or is of unsound mental health. The paper also discusses the relationship between
male rape and Indian law. It states that in India, rape is considered the act of penile penetration or any
foreign object into the vagina without the consent of women or girls. If the term is examined, two
conclusions can be drawn: a rape perpetrator must be a man, and a rape victim must be a woman.
Therefore, the rape of only women is understood to be the definition's entire scope; there is no exception
for the rape of men. It is evident that whether a man rapes another man or a woman rapes a man, there is
no specific law in India that applies. They can only be sodomised under section 377 of the IPC; all other
rules and sections are only intended for women. The equalitarianism of our constitution is impacted by
this disparity in treatment.

According to the article, even though there is a POCSO (Protection of Children from Sexual Offences)
provision for male child sexual assault, there is not one for male adults. There is no justification for
treating incidents of sexual assault on male children differently from those that occur on male adults.
According to the report, the 174th law commission of India suggested in March 2000 that India's rape
laws be changed to be gender-neutral to protect male victims as well. Its basic tenet is the assumption that
rape will be desexualized and that the stigma associated with it would fade. However, the ideas were not
put into action by the government. According to the article, the Justice Verma Committee recommended
that the term "rape" be changed to "sexual assault" to cover all genders. However, later revisions were
made in defiance of criticism and opposition from feminists and women's organisations. These parties
consider rape to be an explicitly patriarchal crime and perceive calls for gender-neutral laws as an assault
on feminism.

The research paper concludes by noting that most crimes go undetected or receive very mild penalties
since gender-neutral legislation is not available. A fundamental tenet of criminal law is that everyone
should be equally protected from all forms of crime; in such situations, simple biological distinctions do
not imply that the suffering of the male of the opposite gender is smaller and does not require attention.

Introduction

The World Health Organization (WHO) defines sexual violence as: ‘Any sexual act, attempt to obtain a
sexual act, unwanted sexual comments, or advances, or acts to traffic or otherwise directed against a
person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any
setting, including but not limited to home and work. Coercion can encompass:

• varying degrees of force;

• psychological intimidation;

• blackmail; or

• threats (of physical harm or of not obtaining a job/grade etc.).

In addition, sexual violence may also occur when someone cannot give consent – for instance, while
intoxicated, drugged, asleep or mentally incapacitated. While the WHO definition is quite broad,
narrower definitions also exist. For example, some definitions of sexual violence are limited to those acts
that involve force or the threat of physical violence. The WHO multi-country study defined sexual
violence as acts through which a woman:

• was physically forced to have sexual intercourse when she did not want to;

• had sexual intercourse when she did not want to because she was afraid of what her partner might do; or

• was forced to do something sexual that she found degrading or humiliating.

Sexual violence is a major problem faced by women and girls in India. It is already a challenge for
survivors to obtain justice in the Indian legal system, and those from the country’s marginalized
communities face even more major barriers.

Survivors of sexual violence face huge barriers in accessing justice, including community pressure to
drop the case, discriminatory attitudes of police and judicial officers, insufficient legal aid, and
discouraging conviction rates. These challenges are often magnified if the survivors are members of
India’s marginalized communities, particularly if they are Dalits, Adivasis, or Muslims.

Description

Numerous forms of sexual violence exist. All sexual violence behaviours aim to coerce or manipulate the
victim into engaging in sexual activity without their express agreement. This is the one thing that all
sexual violence behaviours have in common. The concept of a spectrum for sexual assault can be helpful.
On one end of the spectrum, there are actions like catcalling, voyeurism, harassment, and intrusive
questioning. Increasingly violent behaviours like sexual assault, rape, sodomy, statutory rape, sex
trafficking and exploitation, and more are found at the other extreme of the continuum.

Anyone can engage in sexual violence against anyone else. Any person, regardless of ethnicity, gender,
sexual orientation, socioeconomic status, religion, level of ability or impairment, or background, has the
potential to abuse another person. Abusers are not necessarily strangers, either. They frequently include
strangers, loved ones, close friends, people in positions of authority, and others. Sexual assault offenders
frequently use identity stereotypes and close relationships to further humiliate and isolate their victims.

There are various logical reasons why someone might decide against giving their consent to sexual
actions. For instance, they might be under the influence of alcohol or drugs, afraid to object, afflicted with
a condition or impairment that makes consent impossible, or simply too young. Sexual assault is, by
definition, engaging in sexual activity with a person who has chosen not to consent or who is unable to.

Types of Sexual Violence

Sexual Harassment

Sexual harassment occurs when a perpetrator initiates unwelcome sexual advances, requests sexual
favours or commits some other inappropriate conduct of a sexual nature toward another person. This
behaviour can occur in many settings, including the workplace or school. Sexual harassment also can
include sexual abuse perpetrated by someone in a position of authority, such as a professional with a
student, client or patient. The intent or motivation of the perpetrator does not excuse behaviours that make
a victim feel uncomfortable or threatened.

Sexual Assault

The phrase "sexual assault" has several diverse connotations and is frequently used in a range of contexts.
It most frequently refers to a physical instance of sexual assault. Rape, incest, molestation, unwanted
fondling, or unwanted sodomy are all examples of sexual assault. Sexual assault is a term that is often
used interchangeably with the word "rape," while other times it is used to refer to a variety of unwelcome
sexual contact.

Rape

Rape is another term that is used in a variety of ways. Under Indian Legal System, Rape is defined under
Section 375 of IPC –

Rape. —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following descriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom
she is interested in fear of death or 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 her consent, when, at the time of giving such consent, because of unsoundness of mind
or intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to which she
gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is
not rape.

Incest

Incest is commonly defined as sexual touching or penetration between two related persons. It is often
used to refer to non-consensual sexual acts perpetrated on a minor child by a relative.

Sexual Abuse

Another phrase that has multiple meanings is "sexual abuse," although most typically it refers to a pattern
of inappropriate sexual behaviour that is frequently committed by someone in a position of authority or
trust. It might be used to describe the sexual exploitation of kids. It can also refer to a sexual assault on an
adult committed by someone in a position of power or trust, such as a professional on a client or patient.
Sexual assault can be especially harmful to people with disabilities. To establish control and encourage
secrecy, sexual abuse frequently involves deceptive planning, also known as "grooming," of the victim.
Rape is just one example of the range of sexual actions that might be involved.

Sex Trafficking

When a victim is forced, deceived, or coerced into participating in a commercial sex act, this is referred to
as sex trafficking. These behaviours include prostitution, pornography, and other sex labour performed in
exchange for cash, drugs, lodging, food, or other valuables. Sex labour performed voluntarily without the
use of coercion, fraud, or force is not regarded as sex trafficking. However, it should be mentioned that
any participation in commercial sex acts, while the subject is under the age of consent, is regarded as sex
trafficking because minors are unable to provide their consent.

Child Sexual Abuse

Sexual contact with a youngster constitutes child sexual abuse, a type of child maltreatment. Any sort of
sexual activity cannot be consented to by a minor. When a perpetrator interacts with a youngster in this
way, they are engaging in behaviour that can harm the victim for years to come. There is no requirement
for physical contact between a perpetrator and a victim for child sexual abuse to occur.

Sexual Assault of Men and Boys

No matter the age, sexual preference, or gender identity, sexual assault can happen to anyone. In addition
to sharing many of the same emotions and behaviours as other survivors of sexual assault, men and boys
who have experienced sexual assault or abuse may also experience additional difficulties as a result of
social attitudes and prejudices about males and masculinity.

Intimate Partner Sexual Violence

The perpetrator of sexual violence is typically someone the victim knows, and this includes those in close
personal connections. Intimate partner sexual violence, domestic violence, intimate partner rape, marital
rape, and spousal rape are just a few of the names used to describe sexual violence that takes place in
intimate relationships.

Drug-facilitated sexual assault

When drugs or alcohol are used to make it difficult for a victim to give their consent for sexual activity,
this is known as drug-facilitated sexual assault. Because they lessen a person's ability to resist, lower
inhibitions, and/or prevent them from recalling specifics of the assault, these substances make it simpler
for a perpetrator to engage in sexual assault. The drugs that abusers use to conduct sexual assault,
including "roofies," are referred to as "date rape drugs." The most popular drug used in drug-enhanced
sexual assaults is alcohol. Anybody can be the victim of drug-facilitated sexual assault, whether it is
committed by a close friend, a stranger, or someone you have known for time.

DISCUSSION

Rights available to victims of sexual violence:

1. Protection of Women from Domestic Violence Act (2005) is a comprehensive legislation
to protect women in India from all forms of domestic violence by the husband or any of
his relatives. Domestic violence is subjected to any kind of physical, sexual, mental, verbal
or emotional.
2. The Immoral Traffic (Prevention) Act, 1986 (PITA) has amended The Immoral Traffic
(Suppression) Act, 1956 (SITA). This Act is the premier legislation only for the prevention
of trafficking for commercial sexual exploitation i.e. to prevent and ultimately prohibit
prostitution for women and girls to criminalize sex work. In 2006, the Ministry of Women
and Child Development proposed an amendment bill i.e. the Immoral Traffic (Prevention)
Amendment Bill, 2006 that has yet to be passed.
3. The Sexual Harassment of Women at Work Place (Prevention and Protection) Act (2013)
provides protection to women from sexual harassment at all workplaces both in the public
and private sector, whether organised or unorganized.
4. The Protection of Children from Sexual Offences (POCSO Act) 2012 was formulated to
effectively address sexual abuse and sexual exploitation of children. It defines a child as
 any person below the age of 18 years and protects all children under the age of 18 years
from the offences of sexual assault, sexual harassment, and pornography.
5. The POA Act states that The Protection of Children from Sexual Offences (POCSO Act)
2012 was formulated to effectively address sexual abuse and sexual exploitation of
children. It defines a child as any person below the age of 18 years and protects all
children under the age of 18 years from the offences of sexual assault, sexual harassment,
and pornography.
6. The Transgender Persons (Protection of Rights) Act, 2019 provides for Offences and
penalties: offences, like indulging transgender persons in forced or bonded labour or denial
of access to public places; physical, emotional, or sexual abuse; or other offences
committed under the provisions of the Transgender Persons Act, are punishable with
imprisonment for a term of at least six months, extending up to two years along with fine.
Rights available to women who are victims of rape:
1. Right to Zero FIR
It means that a person can file an FIR in any police station, irrespective of the place of
incident of the Jurisdiction. Consider a scenario in which a female was sexually assaulted
in Haryana but chose not to report the crime before moving to Mumbai. Now, she can go
immediately to any Mumbai police station and register an FIR against the rapist if she so
chooses. The Mumbai Police will hand over the same FIR to the Haryana Police. This is
referred to as Zero FIR. Since the Nirbhaya Case, the idea of Zero FIR has been in effect.
The Zero FIR concept was introduced by the Committee of Justice Verma in their report's
findings.
Following the Nirbhaya gang rape, rape victims have been granted several rights to
preserve their dignity, privacy, protection, fast trial, and compensation. In the case of Kirti
Vashist v. State and Others, the Delhi High Court explicitly stated that a victim may file an
FIR at any police station, recognising the idea of Zero FIR in the process. The police
officer must file the FIR right away, without waiting or asking any questions.
2. Free medical treatment in any private hospital
No private or public hospital may charge a fee for the care of rape victims, as stated in
Section 357C of the Code of Criminal Procedure. Any hospital, whether public or private,
must offer free first assistance to victims right away. According to Section 166B of the
Indian Penal Code (non-treatment of the victim), any hospital that charges for the
treatment of rape victims face up to a year in prison, a fine, or both.
3. No two-finger test during the medical examination
No physician shall be permitted to do two-finger tests during the course of the
examination. The Code of Criminal Procedure's Section 164A states that this provision
explains how the report will be created and what will be recorded in the report. In the case
 of Lillu Alias Rajesh and Others v. State of Haryana, the Supreme Court itself backed this
decision and declared that the two-finger test and its application violate the rights to
privacy, mental integrity, and dignity of rape survivors. Thus, it is forbidden.
The doctor's sole responsibility is to determine whether or not there is a private parts
injury. Has the victim been involved in the rape or not? Has there been any recent sexual
activity or not? No doctor has the authority to inquire about the victim's prior behaviour.
Considering this, A medico-kit has been provided in every hospital as per a directive from
the Ministry of Health to collect DNA samples for forensic analysis.
A male doctor will perform the examination; he must obtain permission to do so.
Additionally, he must describe the technique and tools he will use to conduct the
evaluation. He cannot, however, do the two-finger test because doing so would constitute
rape under Section 375 of the Indian Penal Code. Only female doctors would assess rape
victims, according to a clear statement made by the Chhattisgarh State Government.
4. Harassment-free and time-bound police investigation
The statement must be recorded by a woman police officer or any other official by Section
154 (1) CrPC. The officer will arrive at the time you choose or that is convenient for you.
And they will adjust the location to suit your needs. In the presence of the victim's parents
or legal guardians, the female officer must record the victim's statement. According to
Section 164, a magistrate must record the statement (5-A). The victim will be brought
before the judge by the female police officer, and the statement will be recorded there. The
goal of doing the same is to determine whether or not the statement recorded by the police
is accurate.
Analyzer Educator Social Interpretation will be on hand to interpret the indications if a
rape victim is too dumb or mentally impaired to articulate the incident. The fundamental
reason for doing the same is to save the victim from having to recount the occurrence
again in the trial court. Instead, the victim's testimony to the magistrate shall serve as the
victim's last statement, and it will not infringe upon the victim's right to privacy.
5. Trial with full dignity, speedy and protection
According to Section 26 of the Criminal Procedure Code, a woman must preside over the
court during the trial. In addition, the victim shall not be asked any questions that reflect
negatively on her character. Any question about prior sexual activity is irrelevant,
according to Section 53A of the Indian Evidence Act. The investigation and trial of rape
shall be done on camera, according to Section 327(2) of the CrPC. According to Section
 327(3) of the Criminal Procedure Code, the victim's statement to the magistrate must be
kept confidential.
According to CrPC section 173(1A), an investigation must be finished within two months
of the day the information was recorded. According to Section 309(1) of the Code of
Criminal Procedure, a sufficient number of courts have been created specifically for rape
cases. Additionally, the court has mandated that a trial schedule be created specifically for
rape cases under Section 230 of the CrPC. The victim and the witness will be given
protection by the court so that they are safe from harm. Additionally, the police must pick
up the victim from her house and return her there after the trial. The victim and the witness
will wait in separate waiting areas in the court so that no confrontation will happen with
the rapist.
6. Right to compensation
The victim compensation plan is outlined in a new provision found in Section 357A of the
Code of Criminal Procedure. This rule for creating a compensation plan was established by
the Supreme Court in Nipun Saxena v. Union of India. With this in mind, the National
Legal Services Authority created the guidelines for the compensation plan for female
victims.

Recommendations

 The refusal to make marital rape a crime is one of India's main rape legislation shortcomings.
Women are treated as the husbands' property under laws that permit marital rape, making them
susceptible to sex abuse and violence while still married. 77 of the 185 nations on the planet have
laws that categorically criminalise marital rape. 74 more states have laws that permit cases to be
brought against spouses. The 34 nations that openly decriminalise marital rape—basically giving
men who rape their wives immunity—make up the third group of nations, with a poor track record
on women's rights. India is one of 34 countries in this gallery with sexual assault laws that omit
marital rape. That is why there is a need to criminalise marital rape.
 For survivors from the Dalit, Adivasi, and Muslim communities—who additionally encounter sex
discrimination in the court system—these obstacles to getting justice are amplified. All of these
components are part of a system where a victim must endure multiple humiliations in their
fruitless pursuit of justice, which must be taken care of.
 In recent years, India has made significant changes to its rape laws, including broadening the
definition of rape. However, many of the recommendations made by the Justice Verma Committee
on Criminal Law Amendments following the infamous Delhi gang rape case in 2013 have yet to
be implemented. The Committee, in particular, recommended numerous systemic and procedural
reforms, including police reforms, reforms in the management of sexual violence cases, and
education reforms aimed at preventing sexual violence, all of which should be implemented.
 There is no law regarding sexual violence against men in the country. There is only one law under
section 377 of IPC, which talks about sodomy. All other sections are meant for women. The most
important point to keep in mind is that, contrary to sections 354A through 354D and section 375
of the IPC, which specify that only men may commit sexual violence though both the perpetrator
and the victim may be of any gender.
 . The Justice Usha Mehra Committee recommended establishing One Stop Centres in all Indian
states and union territories. The centre ensures that a nurse, gynaecologist, police inspector,
forensic expert, and councillor are all available under one roof to conduct a thorough examination
of the case. This scenario should be taken seriously, and the only institution (One Stop Centre)
that can provide holistic support to rape and sexual offender survivors should be prioritised by the
federal and state governments.
Conclusion
In conclusion, though the government has passed adequate legislation to provide access to justice
to the victims of sexual violence, it is still lacking in many ways which need to be addressed. In
March 2000, India's 174th Law Commission recommended that rape laws be made gender-neutral
to protect male victims as well. The underlying principles are a presumption that rape will be
desexualized and the stigma associated with it will be removed. However, the government did not
take any action to implement the recommendations. In the same way, The two-finger test violates
a rape survivor's right to privacy, physical and mental integrity, and dignity. In 2013, the Supreme
Court ordered a ban on the two-finger test and the development of a better medical procedure to
confirm sexual assault. Despite the fact, such practices are common.
The Ministry of Family and Health has issued a guideline for survivors to receive proper medico-
legal care. However, the survivor was still required to visit numerous hospitals for medical
treatment. With an annual allocation of Rs 1000 crore since its inception in 2013-14, the Nirbhaya
Fund grew to Rs 3000 crore in 2015-16, owing largely to underutilization despite proposals from
various ministries. Furthermore, no appropriate head was allocated from the total fund to begin the
expenditure for the same. The police are the first line of defence for survivors seeking protection
and safety. Instead, police did not even register the survivor and victim of sexual violence's
complaint.
The following above are the problems in the Indian legal system that is needed to be properly
addressed, adequate solutions must be provided to the victims of sexual violence and the gaps in
the rape laws must be filled gender-neutral laws should be established.