The efficacy of Rape Shield Laws of the U.S, and their relevance in the Indian context, especially in the wake of some of the recent high profile cases of alleged rape and the Tehelka episode, drew sharp focus in a panel discussion on Gender Based Violence: Challenges and Institutional Responses organised jointly by The Hindu Centre for Politics and Public Policy and the US Consulate General in Chennai on December 6, 2013.
Federal Rape Shield Laws are statutes or court rules that limit the ability of the defendant’s counsel to introduce the victim/accuser/complainant’s sexual history as evidence during a rape trial.
As a legal tool, Federal Rape Shield statutes have been “very helpful” to the suffering rape victims, particularly in high-profile cases wherein defence attorneys bring forward the sexual history of the victims’ to defend their clients, said Dr. Denice Labertew, Director of Advocacy Services, California Coalition Against Sexual Assault (CALCASA), who has been involved in addressing issues of violence against women in the US for over 20 years.
Stating that there were two aspects in such cases of sexual assault — one, the accused trying to prove consensual sex by bringing up the sexual history of the victim, and second, swearing that the perpetrator did not commit the crime at all — Dr. Labertew said despite the RSL’s efficacy in a certain class of high-profile cases, “there are some limitations too’’.
Dr. Labertew, one of the four distinguished panellists at the two-hour interaction moderated by Dr. A. R. Venkatachalapathy, a member of the Board of Advisors of The Hindu Centre and a Professor at the Madras Institute of Development Studies (MIDS), was responding to a specific query raised by Mr. N. Ram, Chairman, Kasturi & Sons Ltd and a member of the Board of Management of The Hindu Centre on the relevance of Federal Rape Shield Laws, particularly in the light of the recent high profile case involving Tarun Tejpal, Editor-in-Chief of Tehelka, who was charged with sexually assaulting a woman journalist of the magazine in Goa. Mr. Ram was alluding to concerns expressed over the heavy toll that it will take of the victim if such aspects (past behaviour) was dragged into the trial by the defence.
Justice Prabha Sridevan, a retired Judge of the Madras High Court and another panellist, clarifying the current Indian jurisprudence on this crucial aspect, said that after the Mathura case (related to the custodial rape of a tribal girl in Chandrapur district of Maharashtra that led to amendments in the Indian rape laws), past conduct of the complainant in a sexual assault case “is irrelevant in our law”. If the defence lawyer tried to harass the complainant on this score, “it is the duty of the judge to say you cannot do this,’’ the former judge asserted, adding, a gender sensitisation programme was a must, not just in English but in all the regional languages.
Complementing the former Judge on this issue was another panel member, Ms. Sudha Ramalingam, a Chennai-based lawyer fighting for human rights and gender issues, who pointed out that in sexual assault cases, “past conduct’’ was a factor to be considered by the jury only at the time of sentencing, that too of the accused and never of the woman-victim.
The Tehelka issue provoked more questions. One such query from a participant and a related poser from Mr. Ram on whether the magazine’s managing editor, as was claimed, needed the consent of the complainant to go to the police, or the law enforcing machinery could independently act on such serious cognizable offences, Justice Sridevan said, “Whenever an offence occurs, there has to be a complaint; the law does not recognise it by itself.’’ Ms. Ramalingam, though, took a different view asserting that once the police have come to hear of such a serious crime, “Police can file an FIR” [First Information Report].
This techno-legal aspect turned out to be rather ticklish, as another distinguished panel member, Dr. Prateep Philip, Additional Director General of Police, Economic Offences Wing, Tamil Nadu, and an award-winning innovator in community policing initiatives, concurred with Justice Sridevan that there had to be a complaint for the police to act.
The recent ‘Tehelka’ episode was a “rarest of rare case” wherein the Goa Police had taken cognizance of the offence, Mr. Philip opined, adding, police could take suo moto action only with respect to “social offences like gambling, but rape was different.’’ In the light of what the Supreme Court had recently ruled, it was the police’s duty to register an FIR “once it (the crime) is disclosed to them”, further clarified Justice Sridevan.
Are women safe everywhere
While the panel discussion provoked a thoughtful range of questions from the participants — from criminalising marital rape, death sentence as deterrence to rapes, controlling sale of acid and similar inflammable substances increasingly used by jilted lovers to attack and disfigure women, the awful state of All Women Police Stations in Tamil Nadu, the prescriptions of the multi-billion cosmetics and beauty industry that commends a certain lifestyle as adorable — moderator Dr. Venkatachalapathy, setting the context for the discussions, emphasised how women passengers in a public bus dramatically drop on holidays. This is notwithstanding the fact that the gender division in terms of seats earmarked for men and women passengers are equal. The basic issue is thus “are women safe, irrespective of place and time?”
In a passionate plea for making the workplace a “healthy place to work’’, Justice Sridevan, tracing the legal remedies available since the Supreme Court judgment in the now-famous Vishakha case in 1997, pointed out that ultimately only a change in men’s attitudes could help set right the “historical imbalance in the consciousness about women”. Sexual harassment “corrodes a woman’s confidence and dignity’’, the former Judge explained.
Urging all to go beyond the Constitution to the vision of our founding fathers — Mahatma Gandhi had as early as 1918 hailed women as the companion of men with equal capacities — Dr. Philip said that it was appalling that 30 types of violence targeting women have been identified so far. In Tamil Nadu, under chief minister J Jayalalithaa’s initiative, he said gender sensitisation programmes among the Police force, from the top-most to the lower constabulary level, played a significant role in mitigating violence against women.
On the contrary, lawyer-activist Sudha Ramalingam lamented that despite the “beautiful laws” enacted to protect women from a multitude of violence, including domestic manifestations of male outrage, implementation flaws led to increasing crime rates against women. The condition of women working in educational institutions in particular was very awful, she said, urging, “I would want more reformation than deterrence. Victims’ justice is very important.”
Continuously struck by the “global reality of violence against women’’ across societies, Dr. Labertew outlined in some detail the framework of law, policy and institutions in the US to deal with violence against women. The US model placed more emphasis on community-based approaches and all responses were “survivor or victims-centric as that was the best way forward”, she added.
Among those who attended the panel discussion were Mr. Bharat Joshi, British Deputy High Commissioner, Steven Chung, Director, Public Affairs Division, Taipei Economic and Cultural Centre in Chennai, Ms. Badar Sayeed, Senior Advocate, and Mr. C.H. Venkatachalam, General Secretary, All India Bank Employees' Association. Earlier, Dr. V. S. Sambandan, Chief Administrative Officer of The Hindu Centre, welcomed the panellists, guests and participants. Ms. Vasundara Sirnate, Chief Research Coordinator, The Hindu Centre, proposed a vote of thanks.
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