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If the rape of a woman is a heinous crime, the rape of a disabled woman is perhaps even more so. Strangely, there are almost no figures on the number of rapes of disabled women. And neither are there any statistics on how many of these rapists go scot free. For, say activists, disabled victims’ testimonies are often fractured owing to physical or mental impairment. What’s worse is that they are usually not given due importance by the police or the courts.
However, the situation may improve somewhat for disabled victims of sexual violence. Apart from its recommendations on the laws on rape and sexual violence against women, the Justice Verma Commission has suggested changes to the law relating specifically to disabled rape survivors. Most of these recommendations were included in the special ordinance on sexual violence. The provisions of the ordinance, contained in the Criminal Law (Amendment) Bill, 2013, will become law once the bill is passed in Parliament.
One major problem disabled rape survivors face is identifying the alleged offender in a test identification (TI) parade. V. Muralidharan, assistant convenor of the National Platform for the Rights of the Disabled, says there are many cases where deaf and speech impaired victims are unable to identify their rapists.
“In a 2009 case in Rajasthan, in which two persons had raped a hearing and speech impaired girl, the judicial magistrate noted in his TI report that since she was unable to speak or hear anything, and not being of sound mind, she did not identify the accused,” says Muralidharan.
He goes on to add that besides being traumatised, the girl simply could not understand what was required of her. “Declared as a person of unsound mind, and without taking note of her disabilities, her testimony or the lack of it did not hold up in court. The result was that the men were acquitted,” reveals Muralidharan.
Recognising that the current process of an “identification parade” may not be disabled-friendly, the Verma Commission recommended amending Section 54A of the Criminal Procedure Code (CrPC) which deals with this. It suggested that instead of a police officer, the identification parade should be conducted by a “judicial magistrate”. Moreover, the magistrate should also devise a method of identification that the physically or mentally challenged person is “comfortable” with. The magistrate can decide what method to use, depending on the rape survivor’s disability, says the recommendation.
Amba Salelkar, a former criminal lawyer, who now represents the Chennai-based Inclusive Planet Centre for Disability Law and Policy, one of the organisations that submitted suggestions, welcomes this change in the law. “For many hearing, speech or visually impaired people, there was no effective mechanism in place to communicate with the police. Now the police has to evolve alternative methods of identification,” she says, adding that Inclusive Planet had also recommended that the entire process of identification be videographed to avoid any ambiguities in court later.
The Criminal Law (Amendment) Bill, 2013, in fact, goes a step further. It says that in cases of sexual assault against disabled persons, the process of filing FIRs should be videographed as well. Section 154(1) of the CrPC, which deals with the filing of FIRs, has also been amended so that a disabled rape survivor’s FIR is recorded by a woman police officer at the person’s residence or a place convenient to her, and more importantly, in the presence of a special educator or an interpreter.
However, the qualifications of the interpreters and special educators have not been spelt out. Experts working in the field had requested that only people with a background in disability-related services, proficient in sign language, the use of assistive aids and augmentative communication devices should work as special educators.
“Until now, the police would record or write down whatever portion of a disabled person’s testimony they thought was relevant. We hope that this amendment will make it easier for disabled rape survivors to come forward to report cases of abuse,” says Salelkar.
Videographing the statements of disabled rape survivors by magistrates with the aid of an interpreter or special educator is also an “important change”, says Mrinal Satish, associate professor of law, National Law University, Delhi, who worked with the Justice Verma Commission.
He goes on to explain that retraction of statements by survivors is often a major reason for acquittals in rape cases. When a magistrate records the statement, it will be difficult for the person to backtrack and also make her liable to prosecution for making a false statement under oath.
The Verma Commission has also sought to remove the archaic term “dumb witness” from Section 119 of the Indian Evidence Act. The suggested replacement is “persons unable to communicate verbally”. However, activists point out that in Section 376, mentally challenged persons are still referred to as persons with “unsoundness of mind”.
While most experts hail the provisions related to disabled rape survivors in the Criminal Law (Amendment) Bill, 2013, some say that certain crucial suggestions by NGOs working in the field have been left out. These include an emergency response system, standardising practices relating to examining a rape survivor, legal aid, counselling and rehabilitation facilities.
Also, as Shampa Sengupta of Sruti Disability Rights points out, effort should be made to record instances of sexual violence against the disabled. “In 2012 in West Bengal alone nearly 35 cases of rapes against disabled women were reported in the media. But the National Crime Records Bureau has no data on this at all,” she adds.
Some wonder if the Disabilities Bill (which is still at a draft stage) will be at cross-purposes with these suggestions. Not so, asserts Muralidharan. “The Disabilities Bill is basically an anti-discriminatory legislation. A section of the bill does talk of protection against all forms of abuse, violence and exploitation within and outside the home. But it is preferable that cases of sexual assault come under relevant provisions of the Indian Penal Code,” he says.
Others like Satish are optimistic about the changes in the law. “These provisions try to remove barriers in the legal process and make it disabled- friendly. The impunity aggressors were enjoying vis-à-vis disabled survivors of sexual violence will hopefully be a thing of the past. Moreover, by changing the methods of filing an FIR, mentally and physically challenged people will now be treated on a par with others — making the law just and inclusive,” he says.
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