NEW DELHI, Dec 14 (IPS) – A batch of three bills introduced in India’s Parliament in August to replace archaic, colonial period laws and revamp the criminal justice system will, however, retain the existing law that legalizes marital rape.
Section 375 of the Indian Penal Code (IPC), originally introduced in 1860, criminalized rape but made an exception for “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age.”
Women’s groups and civil society organizations fighting for gender justice cite the persistence of the marital rape law almost eight decades after independence from British colonial rule as an example of the difficulties of bringing about change to the extreme patriarchal attitudes that pervade South Asian countries.
Nawmi Naz Choudhary, global legal advisor to Equality Now (EN), a group that strives for a just and equal world for women and girls through legal expertise, advocacy, collaboration, and resourcing, says that the impact of colonization has led to many discriminatory policing practices that deny access to justice rights for women and girls, especially those from socially excluded or disadvantaged communities.
Such practices prevent women and girls from seeking justice for sexual violence, and in cases where they do, the negligence or lack of proactiveness from police when it comes to sexual violence offenses are linked to the reasons that keep the colonial status quo in place, Choudhury tells IPS.
Research by EN and partners has revealed that sexual violence laws across many countries in the region effectively deny justice to survivors of sexual violence due to protection gaps in the laws, such as the “failure to fully criminalize marital or intimate partner rape.”
Other gaps work to reduce protection against sexual violence for young and adolescent girls and condone perpetrators of rape in certain circumstances—typically marriage to the victim or obtaining forgiveness from the victim, says Choudhury. “In countries where these protection gaps exist, access to legal aid for women and girls seeking justice for sexual violence is hindered.”
Choudhury highlighted legal gaps in the region while providing background on legal aid services and provisions in the region at a webinar titled ‘Future of Legal Aid in South Asia for Sexual Violence Offenses Against Women and Girls: Lessons From The Past Five Years.’
Citing a 2021 WHO report, Choudhury said one in three women had experienced either physical or sexual intimate partner violence or non-partner violence in their lifetimes. In South Asia, that figure moves to every second woman experiencing violence daily.
“Across the region, what we see is a criminal justice system characterized by implementation failures that lead to shortcomings in providing timely support to victims of sexual violence,” Choudhury told webinar participants.
“How much support are women and girls in South Asia getting?” she asked. “While accessing the criminal justice system, they are met with indifference and neglect at all levels, and this often results in the withdrawal of cases or long delays in adjudication—despite the pervasiveness of sexual violence in the region.”
She pointed to the high levels of stigma attached to rape in South Asian societies that often lead to the non-reporting or withdrawal of cases or settlements outside the court. Other factors that hinder reporting of sexual violence include fear of repercussions, such as violence, threats to life, or social ostracization.
Governments in the area rarely provide psychosocial care. While India, Nepal, and Sri Lanka have schemes for the payment of compensation to rape survivors, practical barriers often make compensation inaccessible for survivors, Choudhury said.
Participants in the webinar from various countries in the region offered insights into how justice rights access functions on a practical level and the methods by which civil society organizations are nudge criminal justice systems to bring about progressive change.
Sushama Gautam at the Forum for Women, Law, and Development in Nepal said that legal aid provided by her organization went beyond assisting individuals and included advocacy with key players and institutions like the police and the courts through public interest litigation.
A major achievement of the Forum was filing public interest litigation in 2001 to get the Supreme Court of Nepal to declare in 2002 that marital sex without the wife’s consent should be considered rape. Nepal’s parliament adopted in 2018 a new criminal code that increased punishment for marital rape but made it a lesser offense than non-marital rape.
“The national policy on legal aid and the policy on unified legal aid have also been formulated. These policies promote victim-centered legal aid, and there are digital mechanisms to ensure that legal aid has been established,” she said. The forum has an app that helps contact legal aid providers, and we are using it to disseminate information,” Gautam said.
The Forum also has a Legal Clinic and Information Center that extends services to victims of sexual violence, such as legal counseling, and also takes care of the immediate needs of victims.
Manisha Biswas, senior advocacy officer at the Bangladesh Legal Aid Services Trust (BLAST) says that while Bangladesh has made progress in ensuring access to justice for rape victims, estimates show that only one in 90 cases of sexual violence actually reaches the stage where the victim gets compensation.
Leading the Rape Law Reform Coalition, comprising 17 rights organizations, BLAST was instrumental in getting the Bangladesh Parliament to amend evidence laws to disallow ‘character assassination’ of rape victims by questioning during prosecution.
BLAST helps legally handle child marriage cases through a network of paralegal workers, many of whom are recruited from different law colleges.
“BLAST enjoys a good reputation that helps us to act as a guiding force and use our expertise in providing services such as training paralegal volunteers in police and court procedures and in proactively rehabilitating rape victims,” she said.
Much remains to be done, Biswas said. Bangladesh has one of the highest rates of child marriage in the world, with more than half of women marrying before reaching the minimum legal marriageable age of 18. Bangladeshi laws also permit marital rape.
Overall, says Choudhury, the reality in South Asia is that “the burden of supporting survivors of sexual violence falls on underfunded NGOs, predominantly legal aid organizations that may not have adequate resources.”
This is particularly true for NGOs and CSOs that operate at the grassroots level, which affects access to justice rights for women and girls who have disabilities, indigenous women and girls, and women and girls from minority groups or marginalized and disadvantaged communities.”
One of the key messages that came out of the webinar, said Choudhury, is the need to act more collaboratively so that all relevant stakeholders are involved in the fight to end sexual violence for all women and girls in the region.
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© Inter Press Service (2023) — All Rights ReservedOriginal source: Inter Press Service
