Interview with Flavia Agnes, lawyer and activist. By ANUPAMA KATAKAM
IT frustrates Flavia Agnes when people only talk about rape in the context of the Nirbhaya and Shakti Mills cases. She says there are hundreds of women who are victims of brutal sexual assault and need help. The only reason they become just a number is their poverty and lack of access to support.
Agnes, a well-known lawyer and women’s rights activist who has been relentlessly pursuing the need to make rape trials more victim-centric, speaks to Frontline about the support programme initiated by the Maharashtra government and executed by an organisation called Rahat, started by her team at Majlis, a non-governmental organisation (NGO) that works with victims of domestic abuse. Excerpts:
Rahat started as a survivor-support programme for victims of sexual assault. What made you want to start it?
The project of providing support to rape survivors started with the case of a four-year-old who was raped by a peon in a school located near the Majlis office. Our team was shocked to read the news report that appeared following a complaint filed by the mother of the child, and our first concern was to locate the woman concerned. Since we were aware of the harrowing process of a criminal trial, we wanted to put her in touch with an NGO that provides support to rape victims during litigation. Soon we realised that the only programmes available were community-, police station- or hospital-based, and there weren’t any which provided support from the stage of filing an FIR [first information report] till the trial. So we decided to venture into it using our legal skills in supporting women during litigation. We followed up this case consistently and secured a conviction and a sentence of seven years to the accused despite the stiff opposition from a reputed criminal lawyer whose services were engaged by the school authorities.
In cases of sexual assault, from the time a complaint is filed, the victim/survivor has to encounter formidable and daunting institutions like the police, hospitals and courts. They are in serious need of medical care, guidance, safe shelter, school admissions, safe environment, [and help in] pregnancy-related issues. They also need a process of confidence-building prior to court appearances as often the cases end in acquittals because of inconsistencies in depositions, lack of evidences, the public prosecutor’s lethargy or the inability to produce relevant case law to counter the arguments by defence lawyers, and general lack of sensitivity of courts towards victims of sexual crimes.
At the initial stage, this project met with a great deal of hostility. It was a challenging task to negotiate our way within government offices, court registries, police headquarters and judges’ chambers. Then there was a major breakthrough. A woman had to die a gruesome death and world attention was drawn to the issue of women’s safety in India. Overnight, the attitude of government officials changed and our interventions received greater acceptability and we were able to make considerable progress.
To gain acceptance within the criminal legal system, we formed Rahat as a collaborative project between the Department of Women and Child Development [WCD], Government of Maharashtra, and the Majlis Legal Centre to provide support to victims of sexual offences. We also forged another alliance, between Rahat and the Mumbai Police. This made it easier to reach out to victims and provide immediate support. Apart from helping to ease the fear and anxiety of the victim, it has also helped in evolving a new model for victim/survivor support.
Why do we need a strong support programme? What is lacking in our system?
When we entered the scene, there were no mechanisms in place to provide any assistance to the victim while she went through the gruelling process of a criminal trial and to help her to overcome the stigma and trauma caused by the incident of rape. There was no scheme in place to offer financial assistance or the guidance of a support person. The focus of the criminal justice system was only on investigation, on collecting evidence which would result in conviction. The interaction of the police would be limited to taking the victim for medical examination, recording her statement, conducting a test identification parade, and then summoning her to appear in court for trial after a year or two. Very seldom were even copies of the FIR and medical reports given to the victim. She was a mere witness in a trial to be conducted by the state against the accused persons. The success of a case was measured only in terms of conviction rates.
There was also a total lack of coordination between the state agencies, that is, the police, public hospitals, public prosecutors and officers of the Department of Women and Child Development involved in the investigation and in providing support. Public prosecutors who represented the victims made moral judgments on the victim’s character and thus failed to perform their duty with sincerity and commitment. They also lacked the skill and competency to represent victims in complex cases.
It is argued that the Nirbhaya case brought about change. What happened after Nirbhaya?
Why should the reforms be known by the name given to the victim of a brutal gang rape? I call it the Delhi gang rape case. Yes, change did come but not entirely because of this case. The Protection of Children from Sexual Offences [POCSO] Act passed in November 2012 had broadened the definition of sexual crime beyond peno-vaginal penetration to include other types of penetration and also anal or oral sex, etc. But it went unnoticed. Only after the media attention on the Delhi gang rape did the police start registering cases under this Act.
POCSO brought in many special procedures that are required for rape trials. For instance, recording the FIR or the victim’s statement in her home or in a place of her choice by women officers in civilian clothes rather than in a police station, sensitive examination of the child or provision of a translator if the child needs one, special child-friendly procedures to be followed during trial, etc., are some of the measures that were stipulated under this Act.
Initially the police used this Act only in a limited way to register cases of child pornography and continued to use sections of the Indian Penal Code [IPC] for cases of rape. After the Delhi gang rape, based on the suggestions of the Verma Committee, IPC provisions were reformed and the wider definition of sexual assault in the POCSO Act was adopted. Unfortunately, the age of consent for girls was raised to 18 years from the earlier 16 years. In the long run, this will prove to be detrimental as the provisions can be used against adolescent boys in cases of consensual sex if parents disapprove of a girl’s choice of a sexual partner.
You have repeatedly pointed out that the treatment given to victims from higher income/high-profile groups is very different from that given to those belonging to lower strata.
It works in two ways. When the accused is from the middle class and the victim from a lower class, the victim has a tough time. When the victim is from a high-income group and the accused is from a low-income group, the media take notice and the prosecution is under pressure.
Here the investigation is thorough. The accused most often has little legal recourse. I am not justifying the latter’s crime but just stating that there is no uniformity in the manner in which legal provisions are applied in sexual assault cases.
Take, for instance, the high-profile case known as the “Spanish rape case”, where evidence was recorded through video conferencing. But this is never done when a poor vulnerable girl has to depose against great odds. I know several cases where these frightened children are brought to court and are made to give evidence in the presence of the accused. In one case, the child was cross-examined over three days. There are cases where victims have fainted while giving evidence.
What would be a suitable investigation and trial process in a case of rape?
There has to be uniformity in the procedures adopted in the investigation and trial. Procedures such as recording a victim’s statement in their homes, placing a screen to block the victim from the direct gaze of the abuser so that he cannot intimidate her during cross-examination, ensuring that the medical examination is conducted with sensitivity, etc., are simple measures that must be followed.
The guidelines by the Supreme Court in Sakshi versus Union of India as well as the procedures stipulated under the POCSO Act, if strictly adhered to, will make the trial process less traumatic. Our courtrooms are daunting and the trial is a frightening process. As part of our support work, we facilitate a court familiarisation visit to victims and explain to them the procedure of a trial. We explain what the FIR contains and what they are expected to say in court. We inform them that they have a right to ask for a break if they are tired, ask for water, or ask for the question to be repeated if they have not understood the same. It is essential to empower them so that they are able to depose confidently and do not get cowed down by defence lawyers.
Conviction rate is an issue in rape cases. What is your comment?
Conviction is the focus of a criminal trial. A high conviction rate is seen as a solution. Our position to support the survivor is more crucial. If the investigation is thorough and the victim gets due support to depose with confidence, conviction will automatically follow.
You have been concerned about the issue of sexual abuse getting split between child rights and women’s rights groups after the POCSO Act. Could you elaborate?
Earlier, in the 1980s and since the Mathura rape case, sexual abuse of both women and children was addressed primarily as a concern of both women’s rights and child rights and we were successful in bringing in reforms to IPC sections in 1983 as part of a campaign for an anti-rape law. But while campaigning for POCSO, child rights groups raised the issue of children separately. After the Delhi rape case, the reforms focussed on IPC sections of rape which concern adult women. Though the definition of rape under IPC and POCSO are very similar, the requirement of a special court for vulnerable witnesses is not getting addressed as a joint issue. Child rights groups view victim-protection measures as an issue concerning only children, with the result that issues concerning protection to adult victims of sexual crimes are neglected. We have to work together to achieve a larger goal.
Could you tell us about the Maharashtra government’s Manodhairya scheme for rape victims and other plans that are in the pipeline?
Our organisation worked closely with the Department of Women and Child Development to draft a scheme for financial support to rape victims and the Manodhairya Yojana was launched in October 2013. The scheme is unique as it provides support to victims after an FIR is filed and the medical examination is completed. District Criminal Injuries Boards comprising senior officials from all relevant government departments and representatives of NGOs have been set up. The police station is mandated to send a copy of the FIR along with the medical report to the District Women and Child Development officer who is the member secretary of the board. A meeting of the board is then convened to sanction the funds. Depending on the gravity of the crime, compensation of Rs.2 lakh to 3 lakh is paid to victims of sexual assault and acid attacks.
The transformation in the victims who have received the sum is amazing. It boosts their confidence after the trauma and the stigma from the sexual assault. We are still grappling with issues such as committee members rejecting the application on grounds that the victim is not of good moral character or that she had consented to the sexual act. These issues are being streamlined. If a child was sexually assaulted and there is an FIR and a medical report to prove it, the claim cannot be rejected. This is a forward move by the State and should be implemented in its true form.