There has been a worrying tendency in our public and political discourse that tends to pit a survivor’s rights (or a certain conception of the survivor’s rights) against the human rights of the accused or their rights to a due process. This view operates under the false presumption that survivors of crimes, particularly sexual crimes, and the accused are engaged in some sort of a zero sum game, and that if you want to protect the rights of the one, you must be okay with violating the rights of the other.

The debate that preceded the passing of the new Juvenile Justice (Care and Protection of Children) Act, 2015 was rich with illustrations of this tendency. The debate largely focused on a provision in the Act that allows 16-18 year olds to be tried as adults under certain circumstances (See Section 15 and 18).

In this context Derek O’ Brien was reported to have said that had the brutal gang-rape on the 16th of December happened to his daughter, he would have shot the culprit. In her speech while introducing the Bill, Smt. Maneka Gandhi wondered whether we were going to protect the victim or the criminals? This statement creates a binary in the mind of the listener, telling them that they can only choose one ‘side’, that of the victim or the perpetrator. The views expressed by these lawmakers are not isolated, and seem to be echoed by a significant number of people, who blame the opponents of the new Act for being insensitive to the rights of the survivors.  The new Act came into being, despite various concerns about India’s obligations under international law, and the fact that the debate was taking place in an emotionally surcharged atmosphere, arguably one that is not ideal for dispassionate debate on law and policy.

This ‘binary’ between the rights of the victim and accused, is also reflected in the demands for the death penalty in cases of rape, which has become something of a ‘stock demand‘, according to commentators. In the frenzied anger of a public discourse that almost always imagines rape as that committed on a woman by a stranger, it seems that almost anything goes, in the name of ‘survivor rights’, including demands for hanging, castration, shooting, all preferably without a trial and due process.

Survivor’s Rights

A few moments of quiet reflection, public and private, will reveal that these demands reveal a very superficial engagement with survivor’s rights. Survivor’s rights include, broadly speaking, the right to be treated with dignity and respect, the right to be kept informed of and the right to participate in the criminal proceedings, the right to apply to be compensated for the trauma that has been caused, the right to a speedy trial, and the right to protection in case of threats and intimidation. Given the baggage of our legal history, the criminal justice system has really struggled to accommodate victims in the criminal trial process, something that our public discourse does not adequately consider.

Survivors of sexual violence (children and adults) exist in a reality where they are very likely to be abused by someone in their home, or by someone they know. This is a reality almost never acknowledged by our public discourse which sees rape as something committed by ‘strangers in dark secluded public spaces‘. At the very least, a public conversation on survivor’s rights requires us to acknowledge the fact that rape and sexual abuse are likely to happen at home, and are likely to be committed by persons the survivor trusts. The conversation also needs to acknowledge the kinds of rape and the survivors that are not even legally acknowledged, in the case of marital rape or the rape of an adult man (an adult male survivor of penetrative sexual assault can only take recourse to Section 377 of the IPC, which makes no distinction between consensual sex and rape).

It also requires us to acknowledge how difficult navigating the criminal justice system is for a survivor. Having worked with child survivors of sexual abuse, I can say that the labyrinth of the police station, the hospital, and the court can be intimidating at best and end up re-victimizing the survivor at worst. A conversation on survivor’s rights needs to acknowledge the urgent need for sensitizing police officials, doctors, lawyers, judges and all other stakeholders who need to deal with the survivor in the criminal justice system. The conversation needs to appreciate the trauma a survivor goes through should she need to undergo a medical examination or an abortion, in a hospital where the staff do not respect her right to privacy. It needs to discuss the impact of repeated adjournments during the criminal trial, and the long-time taken to process her interim maintenance application. Lawyers, including lawyers for the defence, the prosecution and the survivor, have to figure out how to discharge their duties best, in a manner that strengthens the rule of law.  Finally, our public discourse needs to stress the importance of quality legal aid being provided to a survivor, the putting in place of systems (such as vulnerable witness rooms), that ensure that the criminal justice system does not re-traumatize her.

If the rights of the survivor are seen in this context, it is obvious that while some strides have been made, we have a long way to go. Putting these safeguards in place does not require us to give short shrift to the rights of those accused of sexual assault, and it certainly does not require us to ignore progressive trends, and demand barbaric punishments. The zero-sum-game discourse distracts us from survivor’s rights, and makes us focus on retribution instead. In doing so, it ends up helping no one.

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