The Hindu investigates behind the rape numbers
A six-month long investigation by The Hindu has revealed that the nature of reported sexual assault in Delhi is far more complex than earlier imagined. Among the key findings is that a third of all the cases heard during one year dealt with consenting couples whose parents had accused the boy of rape.
Over the last six months, The Hindu analysed all cases involving sexual assault that came before Delhi’s six district courts in 2013 - nearly 600 of them in all. The Hindu also interviewed judges who hear rape cases, public prosecutors who argue them, police officers who work on the cases, complainants, accused and their families, and women’s rights activists and lawyers. What emerges is a complex picture of the nature of sexual assault in the capital, a city that has come to be known as India’s “rape capital”.
India’s only source of statistics on sexual assault is the National Crime Records Bureau. NCRB data comes from police stations; First Information Reports (FIRs) filed in police stations across the country are collected at the state level and then put together at the national level. With respect to rape, NCRB data gives the number of cases registered in all states (1,636 in Delhi in 2013, for instance) and in 53 major cities, the age-groups of the alleged victims and a rough categorisation of the alleged offenders nearness to the victim. The data is not able to say anything more about the nature of sexual assault.
The Hindu found that one-fifth of the cases were wound up because the complainant did not appear or turned hostile. Of the cases fully tried, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with “breach of promise to marry”. Of the 162 remaining cases, men preying on young children in slums was the most common type of offence.
For a greater insight into the nature of sexual assault cases, The Hindu looked at all 583 cases decided by Delhi’s district courts – the first level at which rape cases are tried in India – in 2013 and categorised them by the details that emerged in the case, the time the entire process took, medical evidence, the ages of the complainant and accused, observations made by judges and the outcome.
In 123 of the 583 cases ruled on in 2013, the complainants either could not be found, stopped attending the trial, turned fully hostile, insisted that they had never alleged rape or admitted in court that they had filed a false complaint. While it is likely that some of this is on account of the pressure exerted on women to withdraw complaints - in two cases, the complainants referred to “community members” intervening in their depositions - in several others, the complainant said that she had filed a false case for money or as a result of a property dispute. Naturally, all of these resulted in acquittals.
Of the 460 cases that were fully argued before the courts, the largest category (189 cases) dealt with cases involving or allegedly involving consenting couples. The majority of these - 174 of these 189 cases - involved couples who seemed to have eloped, after which parents, usually of the girl, filed complaints of abduction and rape with the police. In two-thirds (107) of these cases, the woman “complainant” deposed consistently before the police, doctors, magistrate, district judge and under cross-examination that she had eloped and had sexual relations - and in most cases got married and sometimes had children - with the accused because she was in love with him.
In case after case among these 107, girls depose about the suffering they faced at the hands of their parents - beatings, confinement, threats, being forced to undergo medical examinations, being forced to undergo abortions, even as they plead before the court they be allowed to stay with their husbands. A large number involved inter-caste and inter-religious couples.
The reason these cases are before the courts is because the girls in most of these cases are between the ages of 15 and 18, and the court must decide if they are minors. In ten of these cases, the court agrees that the relationship was consensual and that the couple got ‘married’ but convicts the boy anyway as the girl was a minor.
Some judges are sympathetic to the situation. Justices Virender Bhatt and Kaveri Baweja, for instance, sentenced the boys in such cases to the period already served by them in jail, or to a token one week. Such discretion, however, has been taken away by the Criminal Law Amendment Act passed in April 2013.
In most of the remaining 67 cases involving alleged elopement, the girl deposed in at least one instance - either in the initial FIR, or during her medical examination, or in her statement to the magistrate - that she was in love with the accused and went away with him of her own will. However, in court she supports her parents’ and prosecution’s case. “Once the girl is sent back to her parents, there is tremendous pressure on her and she often changes her stance,” lawyer and activist Seema Mishra, who says that she has seen countless such cases in Lucknow as well, said. “If the girl is not sent to a shelter once she is picked up by the police, and instead sent home, you can be sure they will brainwash her and she will change her statement in court,” one public prosecutor added. Indeed in one of the cases, the girl pleaded before the magistrate that she be allowed to stay with the accused, but the magistrate denied her wish as she was a minor. In her deposition in the sessions trial, she subsequently changed her stand.
Such changes in testimony in addition to incriminating evidence including photos of the wedding, letters exchanged and no reports of any alarm raised by the girl during train journeys or in hotels during the alleged elopement make convictions rare in these cases as well.
Promise of marriage
Another 109 of the 460 cases fully argued before the courts deal with “breach of promise to marry”, cases in which the woman complains that her consent for sex was obtained under a false promise of marriage, following which the man refused to marry her. Even though the law allows them to, courts are increasingly disinclined to convict in such cases especially if the complainant is educated; only 12 of the 109 cases resulted in convictions, and in most of these, the man was either already married or had conducted a fraudulent marriage with the complainant.
Lawyers and women’s rights activists too are of the view that although such cases reflect the premium put on a woman’s chastity in a patriarchal society, rape laws should not be used in this context. “In my opinion, this should not be rape. If we are talking of women’s agency, then we cannot have it both ways,” lawyer and activist Vrinda Grover said.
However until the law changes, police officials are unlikely to stop registering such cases. “First of all, there is a bias among cops towards the girl’s father,” one senior Delhi police official said. “Secondly, we can have action taken against us for not registering a rape case.”
Rape as we know it
The 162 remaining cases of the nearly 600 heard in 2013 dealt with rape as it is most commonly understood. Of these, nine involved trafficking or prostitution, 30 involved a member of the girl or woman’s immediate family, 12 involved strangers and 111 involved neighbours or acquaintances. Rapes by strangers (including the Dec 16 case) and those by members of the immediate family result in a high rate of conviction. Those by strangers tend to be opportunistic crimes in which a man or group of men prey on a vulnerable woman - one who has run away from home, or is homeless, or is a child, The Hindu found. Rapes committed by immediate members of the family are almost always perpetrated on a young child. There are some exceptions; the most shocking case involving a family member has to do with the rape of a woman by her brother-in-law as part of dowry harassment, following which she committed suicide.
Among rapes committed by a neighbour or acquaintance, half involved a man in a slum assaulting the minor daughter of his neighbour either by luring her while she was playing outside or taking her to his house. Courts tend to overwhelmingly convict in such cases. In the other half, involving adult women and men they know, courts acquit when there are frequent changes in the victim’s testimony or if they are not able to find medical corroboration, The Hindu found.
While this is the only such quantitative and qualitative study of sexual assault at the district court level, National Law University (Delhi) associate professor Mrinal Satish studied 801 cases which came up as appeals before all High Courts and the Supreme Court from 1984 to 2009, and which were reported in the Criminal Law Journal. He found that 40 cases involved consensual sex, of which some came under the 29 statutory rape cases in his dataset. There were no ‘breach of promise to marry’ cases. However Dr. Satish’s dataset looked only at cases that came to the higher courts in appeals. In both cases of elopement and breach of marriage, complainants were reluctant to pursue appeals, a leading public prosecutor said.
(This is the first in a three-part series)