How can law and a lawyer help a rape survivor?
Note: For any help or assistance in reporting any sexual assault case simply call the central women helpline no. 181 which has been created exclusively to redress crimes against women. Women can also call 1091 or 100 as well.
We understand that the time following rape is emotionally charged, confusing, and at the same time frightening for the survivor but some immediate steps need to be followed that can prove significant in proving the crime of the rapist-
- Remember: it is not your fault- Whatever the circumstances were or wherever you were but if any non-consensual act has been committed against you then it is not your fault. Have faith in yourself and don’t lose hope. The law will make sure the culprit pays for the crime he has committed.
- Physical safety- Make sure that you are in a safe and sheltered place.
- Call the police- Survivor can either call 181 or 100 or 1091 to get immediate help from the police.
- Medical attention- Ordinarily a medical must be carried out within 72 hours of the crime, however, an immediate medical examination is recommended the most to reveal injuries that may not be visible to the naked eye as well as collect as much evidence as possible.
Why is a medical examination important?
A medical examination is an absolute must for the survivor to:
- check for possible physical injuries and their treatment
- help avoid the unwanted pregnancy and to carry out pregnancy testing
- test for STDs and treatment against infections if found
- communicate about the consequences of rape on a survivor’s well-being, including feeling depressed or suicidal, sleeping and eating patterns, or volume of anxiety
- issue a medical certificate if the survivor needs some days off work, school or college.
What is the aim of the medical examination?
The aim of the medical evaluation is to-
- Medically assess and treat physical injuries and assess, treat, and prevent pregnancy and STDs
- Collect forensic evidence which can be used in Court by Police against the rapist
- Psychological evaluation
- Psychological support
How does a survivor prepare for her medical examination?
The survivor should try to avoid activities that might potentially destroy evidence like:
- Using the toilet
- Changing clothes
- Combing hair
- Cleaning up the vaginal/ anal area
How can a lawyer help a rape survivor?
Family members, friends and police officials generally react judgmentally or in some other negative way. These reactions can in all probability disrupt recovery after a sexual assault and therefore, a lawyer who is just another human being but with a special skill set of legal knowledge can understand, comfort, find ways for legal remedies as well as counsel and assist the survivor by finding different ways for the survivor to overcome the trauma and while pursuing the matter legally. Besides this, a lawyer can help comfort the survivor while being a support system to the survivor.
A lawyer can support the survivor in either of the 2 situations-
- When the survivor calls the police right after the crime- The lawyer can help the survivor understand the legal integrities and explain her the charges (legal sections) that must be imposed on the rapist. Moreover, the lawyer can appropriately frame the complaint and narrate the incident in the written form for the survivor so that no legal provisions are left behind.
- When the survivor is in no condition to inform the police after the crime- In such situations the importance of a lawyer becomes of paramount importance since the lawyer can help the victim understand the legal provisions and at the same time draft an appropriate legal complaint against the rapist/s. The lawyer can even help the survivor with her safety and take further precautions about the same.
‘Rape’ is a barbaric act by a man to showcase his male dominance over a woman just to satisfy his ego, lust and desire which not only undermines the integrity of the woman physically but also mentally.
What is rape under Indian law?
‘Rape' is defined under Section- 375 of the Indian Penal Code, 1860 under 2 parts:
- non-consensual i.e. forceful penetration of any orifice i.e. an opening which may be vaginal, anal, mouth or urethra by a man in a woman, or,
- non-consensual i.e. forceful touching of any orifice with the mouth by a man. This is not just limited to having non-consensual sex. In fact, even compelling a woman to do this to herself, or with someone else, is also considered rape.
In addition to the above, the court has complete liberty to decide if the sexual act by the man on a woman is rape if:
- It happens without her consent and will i.e. when sex is forceful, or
- The woman agrees, but only because she, or someone she knows is in danger, or
- The woman agrees, but because she thinks the man is her husband, or
- The woman agrees, but after she has been drugged, or
- The woman agrees, but she is under the influence of alcohol, or
- The woman agrees, but is mentally ill, or
- The woman agrees, but is under 18 years of age then it does not even matter if she had consented or not. Sex with a minor is always rape!, or
- The woman is in no condition to indicate whether she allowed or not- for instance, if she is unconscious i.e. she is unaware of the environment around her.
What is consent?
Consent in layman’s language is one’s right to agree/ disagree, say no/ yes.
- It has been distinctly defined as a direct and free will communication that the woman agrees to having sexual intercourse with the man without leaving any space for dispute.
- It also makes it distinct that absence of physical injuries on a woman’s body is immaterial while determining consent.
What is aggravated rape?
An aggravated rape occurs generally due to the significant position of either the woman, or the man, for instance-
- rape by a man having control and authority over a woman because of his legal status (like public servants, police officers, defence personnel, prison staff etc.);
- rape by a man who the woman trusts (relatives, legal guardians, hospital staff etc.);
- particular nature of woman (pregnant woman being aware that she is pregnant, woman below 18 years, woman who is incapable to give her consent, woman suffering from mental or physical disability);
- rape involving violent circumstances (during communal violence, causing grievous hurt/ disfiguration/ endangering woman's life, repeatedly raping same woman).
- Another form of aggravated rape is rape which results in the death of the survivor or in her ending up in a permanent vegetative state .
- Gang rape (rape by 2 or more men)
According to a report of 2016, a total of 3,38,594 crime against women cases were registered out of which 38,947 were rape cases but only 1 in 4 rape cases witnessed conviction of the criminal. As a result of these unfortunate stats and highlighted rape cases like Unnao and Kathua drew attention to the fact that India remains extremely unsafe for women. Therefore, the need of the hour was to bring in even more stringent laws and punishments against rapists.
What does the amended Criminal Law state?
Punishment for Rapists under Section- 376 of the Indian Penal Code, 1860
- The minimum punishment for rape has been increased from rigorous imprisonment of 10 years from 7 years which is extendable to life imprisonment.
- In rape cases of girls below 16 years, minimum punishment has been increased to 20 years from 10 years which is extendable to life imprisonment.
- The punishment for gang rape of a girl below 16 years will inevitably be life imprisonment.
- The punishment for rape of a girl below 12 years will be either imprisonment for 20 years or life imprisonment or death penalty as the Court may deem fit.
- The punishment for gang rape of a girl below 12 years will either be life imprisonment or death penalty.
Fast track investigation and trial
- The time limit to investigate rape cases has now been stipulated to 2 months from the time of reporting the crime.
- The time limit to complete the trial of rape cases has also been stipulated to 2 months from the time of reporting the crime.
- The time limit to dispose of rape appeals has also been stipulated to 6 months now.
Limitation on getting bail
- The amended law stipulates that no anticipatory bail will be granted to the man/ men charged with rape or gang rape of a girl below 16 years.
- It is also stipulated that the court has to provide a notice of 15 days to the Public Prosecutor and the representative of the survivor before deciding on the bail applications of the accused in cases of rape of a girl below 16 years.
What other measures has the government initiated?
The Cabinet in order to give effect to the legal provisions and to improve the capacity of criminal justice system to deal with rape cases has approved a number of important measures:
(a) Strengthening the courts and prosecution
- New Fast Track Courts to be set up in consultation with States and UTs as well as High Courts.
- Establishment of new posts of public prosecutors and related infrastructure in consultation with States and UTs.
- Advanced forensic kits for investigating rape cases to all Police Stations and hospitals.
- Sincere manpower to be provided to investigate rape cases in a stipulated time period.
- Establishing exclusive special forensic labs in all States and UTs for rape cases.
- These initiatives will fall under the new mission mode project which is supposed to be instituted inside 3 months.
(b) National Database
- National Crime Records Bureau will keep a national record and profiles of all sexual criminals.
- This record will be routinely shared with States as well as UTs for tracing, monitoring, examining and investigation which will further include verification of social and family background by police.
(c) Assistance to survivors
The current programme of One Stop Centres which provides integrated services like legal aid, police assistance and medical & counselling services to rape survivors is scheduled to be expanded to all districts across India.