Guest Comment by Maithili Pradhan, Women & Justice Fellow, Avon Global Center for Women and Justice at Cornell Law School
On December 16, 2012, a 23-year-old medical student was gang raped and assaulted in a bus by the driver and five other passengers in New Delhi, India. Two weeks later, she succumbed to the severe injuries she had sustained. News about her rape and subsequent death fanned a countrywide public outcry calling for the death penalty for her rapists and enhanced police protections for women. The outpouring of grief and outrage led not only to candlelit vigils, but most importantly, to calls for reform and to a renewed discussion about how to make India safer for women. In this moment of public awareness and fervor, the Indian government must grab the opportunity to make some real changes in the fight to combat violence against women.
In India, rapes, sexual assaults, domestic violence, and other forms of violence against women, such as sexual harassment (often euphemistically termed “eve-teasing”) and female feticide often go unreported or unpunished. This environment of impunity for violence against women is only bolstered by recent remarks by well-known politicians, which called upon women to avoid going out after dark or wearing short skirts, rather than focusing on the actions that the government and potential perpetrators – that is to say, men – must take to prevent rape and other forms of violence against women.
Many protestors have called for legal reforms that would increase the punishments available for rape and sexual assault. They have also argued for the death penalty to be applied to the perpetrators in this case. In addition, protesters have demanded that one of the perpetrators, a 17-year-old minor, be prosecuted and, if proven guilty, sentenced, as an adult. These demands raise a host of complex issues related to India’s position on the death penalty and the protections the Indian legal system extends to minors. Indeed these issues should only be decided after a period of reflective debate and discussion carried out through the regular processes of democratic government.
Legal reforms that increase the severity of penalties for grave crimes like rape and sexual assault can foster accountability and potentially deter would-be perpetrators. However, strengthening the laws on the books alone will not serve to ameliorate India’s current epidemic of violence against women. Protective laws are not always enforced and can even serve as a panacea, creating a false sense of security and action although the reality on the ground may remain unchanged. Effective law enforcement necessitates appropriate action by police, prosecutors and judges. Yet too often in India, police intimidation, inadequate investigations, and lackluster prosecutions prevent survivors of rape or sexual assault from obtaining redress.
To combat these problems, the government must ensure that all police officials are properly trained and sensitized in handling cases involving sexual crimes and other forms of gender-based violence, in providing dignified treatment to victims, and in conducting vigorous investigations that provide a strong basis for prosecution of perpetrators. Prosecutors also must receive training specific to gender-based crimes, including on how to question vulnerable witnesses, protect against victim intimidation, and work with the police to ensure that a thorough investigation has been carried out. Judges can also play an important role in ensuring that defendants cannot intimidate victims during court proceedings or present victim-blaming theories (such as pointing to a woman’s dress or past sexual history to counter a charge of rape), that perpetrators receive the appropriate penalties, and that victims are treated with dignity and afforded meaningful access to justice through the courts.
Most importantly, the government must make concerted efforts to address the underlying social phenomena that make rapes and other forms of violence against women common and, to a certain extent, normalize these incidents. Indeed, the government may need to begin with some self-analysis so that politicians no longer make public proclamations placing all or part of the blame for sexual assaults on the shoulders of the women who have suffered them. It must also engage in sustained efforts to educate the public about a woman’s right to inhabit the public sphere without threat to her physical integrity, the criminal penalties associated with sexual offences, and how to report and pursue redress for such crimes.
India is faced with a moment of decision: whether to ride the surge of popular support toward combating violence against women and become a country looked up to as one where women are safe, or whether to sit back and continue to let half its population remain vulnerable and open to grievous abuses. This devastating gang rape should serve as a catalyst for change, not merely go down amongst all the other rapes that happen in India as one of many forgotten tragedies.