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| Edited By: Saurav Datta |Source: DNA webdesk |Updated: Dec 20, 2016, 12:18 PM IST
Reporting incest rape is a difficult task, especially because of the societal stigma surrounding it. In case the survivor is a child, as clinical psychologists and psychiatrists point out, reporting rape becomes all the more onerous. It is called the child sexual abuse accommodation syndrome, as lucidly described by Roland C Summit it in this article. The survivor often ends up putting all the blame on herself, and the courts buy that version. By the time she is able to come to terms with the treatment meted out to her, it’s too late — the courts have already acquitted the offender and are mostly reluctant to order a retrial or even reopen the case. Journalist Pinki Virani’s book Bitter Chocolate narrates in detail certain decisions of courts which have followed this tragic trajectory.
However, in a recent decision — State of Himachal Pradesh v Sanjay Kumar @Sunny (Criminal Appeal Number 1231 of 2016) — the Supreme Court has ruled that in such cases, the courts below must follow a survivor-centric approach and not go by the hoary “proof beyond reasonable doubt” standard. Overturning a decision of the Himachal Pradesh High Court, the apex court went by the trial court’s decision of convicting the accused only on the basis of the testimony of the survivor.
Since Article 141 of the Constitution mandates that Supreme Court judgements are the law of the land, this particular decision marks a watershed moment in India’s rape trial and sentencing jurisprudence, which, as many feminist and legal scholars have proved, is pockmarked with arbitrariness, victim-blaming and misogynistic stereotyping.
(WARNING: Graphic details follow)
A nine-year-old girl visits her grandparents during her winter vacations. Once she is there, an uncle lures her into a remote room, gags her mouth, undresses her, and rapes her. Not only does he gag her so that her screams go unheard, but he also threatens to kill her if she narrates or reports his dastardly act to anyone. The survivor falls unconscious, and when she regains consciousness, she finds herself alone in the room, and silently put on her garments. And remains silent.
After a fortnight, the uncle repeats the same act, and again, during the survivor’s second visit, he commits rape again. Intimidated and ashamed, the girl remains silent.
But after 2-3 years, when she suffers from acute stomach ache, the child is compelled to confide in her mother. Her parents immediately go to the police station and lodge an FIR for rape.
The prosecution cross-examined as many as 12 witnesses, but the Supreme Court declined to repose faith in the witnesses put forward by the accused.
The accused’s defence lawyers put forth two strands of arguments— one, that the prosecutrix was being used as a pawn by her parents in order to settle a family feud. Two, that because she had complained of the alleged incident after three years, it was clearly a case of premeditated afterthought.
But the court refused to believe this. It held that the survivor’s silence and hiding of the blood-stained garments was on account of the stigma and threats she would face if she opened her mouth. She was also scared of and scarred by the death threats.
Instead, the court relied upon the unimpeachable medical evidence, which stated that:
“prosecutrix was forcefully raped by the respondent and as a result of that her hymen was ruptured and her external anal sphincter was also torn. Even internal sphincter was not continence. She found that the anal sphincter of the prosecutrix was not functioning properly. In the opinion of the examining doctor, on account of injury to the prosecutrix's anal sphincter, she might be a sufferer throughout her life.”
Moreover, the apex court also relied upon the fact that a child of the tender age of nine would be extremely reluctant to disclose what was done to her, especially when threatened with death.
Perpetrators of child sexual abuse go out of their way to pin all the blame on the child, and more often than not, the courts are taken in by such pernicious alibi. But not so in this case. Here, the Supreme Court relied upon concrete medical evidence, psychological factors, and factors which took into account the totality of the case’s circumstances.
Reasons enough to hail this ruling as a victory over those who sexually prey on children.
