Face The Nation: Rape law, a double-edged sword

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Face The Nation: Rape law, a double-edged sword

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CNN-IBN

TimePublished on Thu, Jun 18, 2009

The law seems to be closing in on actor Shiney Ahuja. Medical evidence

reportedly revealed that the actor's domestic help was subject to violent and

forceful intercourse.

Ever since the infamous Mathura rape case of 1972 in which the Supreme Court

acquitted two policemen who allegedly raped 16-year-old Mathura, rape laws in

India have been tightened to such an extent that now the testimony of the victim

is regarded as, to quote the court, gospel truth.

According to the current law if a woman says she has been raped then it will be

considered enough evidence to convict the accused.

With a famous personality being accused of rape, CNN-IBN show Face the Nation

debated – Shiney rape case: Are rape laws open to misuse by both accused and

victim?

The panel of experts who debated the issue included Manushi Editor Madhu

Kishwar, social activist and lawyer Flavia Agnes and filmmaker Ashok Pandit.

With most rape cases having no witnesses, it is the word of the victim against

the words of the accused. So are laws unfairly tilted in favour of the victim?

" In most cases the tendency of our legislature is that if there is consistent

failure to deliver justice whether it is anti-dowry laws or anti-rape laws, if

the police don't do honest investigation… instead of fixing the police, instead

of expediting court proceedings what we tend to do is to make laws more

draconian, " Kishwar said.

" The burden of proof is very often put on the accused as is the case with

anti-dowry or domestic violence laws. The testimony of the person who claims to

be the victim is supposed to be given much greater weightage. In a way this is

good sense because women are treated shoddily. Rape trials tend to be so ugly

that it's like being publicly raped all over again. The rape law says the

identity of the victim cannot be disclosed because women's lives are ruined if

they are publicly identified. Here we have declared the alleged perpetrator of

crime a rapist even before the trial, " Kishwar added.

But Agnes found the question of the debate wrong and started blaming the media

for sensationalising such cases. The lawyer also said that no one can misuse the

law.

" There is no question of the accused misusing the law. The trial will go on in

the case. Accused has only one agenda and that is to get out of the accusation.

Since the amendment in the rape law in 1983… the conviction rate is dismal. Many

men get acquitted because there are no evidences. Police investigations are not

done properly. Cases are not filed at the correct time, there is no medical

evidence, doctors don't standby the victims. What is the motive of a girl to

file a case against an actor in whose house she is working? " said Agnes.

But why should an 18-year-old maid frame a famous and influential actor? To

which Ashok Pandit simply said, " Any crime cannot be justified. "

Kishwar said that the police must carry out an impartial and proper

investigation in such cases. " Most important is the quality of police

investigation. There can be DNA tests etc. So there is a whole procedure of

going through it, " she said.

In the Raju case of 2008, the court said the evidence of the prosecutrix is

" gospel truth " . In Om Prakash case even the evidence given by a doctor was not

necessary. The testimony of the prosecutrix was enough.

" When you say the evidence of the victim is enough, it does not mean that she

cannot be cross-examined. All it says unlike in Pakistan you don't need to have

two witnesses to the rape, " Kishwar added.

The debate then meandered into how the police are also accused of leaking

confessional reports and medical reports of the case to the media.

" Absolutely, I am not saying the police are not guilty because the media is

guilty. Police are guilty, doctors do not conduct examination. They do not give

report, don't come to give evidence in court. When you say women are filing

false cases… isn't the police investigating the case. Before they file a

chargesheet don't they need to have evidence? It is the courts who frame the

charges. It is not the victim who frames the charges. It is the police who apply

a particular section and not the victim, " said Agnes.

" Once the case is in the court, whether it is true or false will be revealed by

the court. If somebody is acquitted that does not mean that someone filed a

false charge. Police have to look into whether the allegations are correct or

not. It is for the court to see that the police do their job. Why are we blaming

the victim and the law? Here there is no witness. It is the victim's words

against the accused. If a young girl of lower social strata comes forward, let

the law take its own course, " " the lawyer added.

Meanwhile, Kishwar blamed the police of selective leaking and not concentrating

on the investigation.

" I think they (police) are doing what they did on 26/11. Their job is to

expedite the trial and what I would like to see is an honest investigation,

speedy investigation so that the trial is expedited and the charges that he is

VIP and can influence witnesses… the reverse could also be true, " she concluded.