WUNRN
India - December 24, 2012 - The three-member committee of jurists, constituted to give recommendations on amending laws to provide speedier justice and enhanced punishment in sexual assault cases, began its work by issuing notice seeking public comments on the issue by January 5.
The committee headed by former chief justice of India JS Verma sought comments from the public in general, particularly eminent jurists, legal professionals, NGOs, women's groups and civil society members on reviewing the existing laws in a bid to provide quicker justice and stringent punishment in cases of aggravated sexual assault, an official statement said.....
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January
4, 2013
Justice J.S. Verma
To the India Committee Reviewing Laws, Punishment, in Sexual Assault Cases - Suggestionsfrom the Perspective of Women with Disabilities
Prepared
by National Platform for the Rights of the Disabled
We the
representatives of various organisations representing persons with disabilities
while welcoming the setting up of this committee under your chairmanship are
concerned over its limited terms of reference. It would have been better if the
terms of reference of the committee had been much broader and not limited to
two issues.
In the
event, we would like to place before the Committee certain suggestions from the
perspective of women with disabilities.
During the
course of the last couple of years there has been an increase in the number of
cases of sexual assault on girls and women with disabilities. Despite the
increasing number of incidents being reported, sexual assaults and violence
against women with disabilities continue to remain underreported.
Girls and
women with disabilities are more vulnerable to exploitation. They are
considered as soft targets with the perpetrators assuming that they can get
away easily. In many cases such women are unable to comprehend or communicate
about such acts of violence or assault they face. Some reports suggest that they are upto three
times more likely to be victims of physical and sexual abuse as compared to
other women.
In many
cases they are not taken seriously either by the police or the judicial system.
Their difficulty in expressing themselves compounds matters even further.
Further, Article 16 of the UNCRPD under the head “Freedom from Exploitation,
Violence and Abuse” mandates that:
“1. States Parties shall take all appropriate
legislative, administrative, social, educational and other measures to protect
persons with disabilities, both within and outside the home, from all forms of
exploitation, violence and abuse, including their gender-based aspects.
“2. States Parties shall also take all
appropriate measures to prevent all forms of exploitation, violence and abuse
by ensuring, inter alia, appropriate forms of gender and age-sensitive
assistance and support for persons with disabilities and their families and
caregivers, including through the provision of information and education on how
to avoid, recognize and report instances of exploitation, violence and abuse.
States Parties shall ensure that protection services are age, gender and
disability-sensitive.
“3. In order to prevent the occurrence of all
forms of exploitation, violence and abuse, States Parties shall ensure that all
facilities and programmes designed to serve persons with disabilities are
effectively monitored by independent authorities.
“4. States Parties shall take all appropriate
measures to promote the physical, cognitive and psychological recovery,
rehabilitation and social reintegration of persons with disabilities who become
victims of any form of exploitation, violence or abuse, including through the
provision of protection services. Such recovery and reintegration shall take
place in an environment that fosters the health, welfare, self-respect, dignity
and autonomy of the person and takes into account gender and age-specific
needs.
“5. States Parties shall put in place
effective legislation and policies, including women and child-focused
legislation and policies, to ensure that instances of exploitation, violence
and abuse against persons with disabilities are identified, investigated and,
where appropriate, prosecuted.”
There is an
urgent necessity for laws in the country to be amended to provide for these and
harmonise them with the UNCRPD.
Compilation of Data
Unfortunately,
there are no consolidated figures with regard to violence against women with
disabilities. But the magnitude and scale of the attacks can be gauged by the
fact that in the year 2012 alone there have been dozens of cases of sexual
violence on women with disabilities reported in media from the state of
It would
therefore be pertinent that when such cases are registered, crimes against
women with disabilities be also recorded as a sub-category like in the case of
crimes against women from the scheduled castes, scheduled tribes etc.
Provide Adequate
Support to Victims
A team from the National
Commission for Women visited
“We would like to
recommend that the requirements of persons with special needs have to be kept
in mind by all police stations and medical establishments so that they are
provided with handholding support including services of interpreters, readers,
professionals, psychologists and NGOs depending on the nature of the case. A
panel of experts for this purpose can be prepared for each district in
consultation with the Disabilities Commissioner and the WCD Department”
It would also be pertinent
here to look into the rules framed under the Protection
of Children from Sexual Offences Act 2012.
Rules framed
under this Act mandate that:
(1) In each
district, the DCPU shall maintain a register with names, addresses and other
contact details of interpreters, translators and special educators for the
purposes of the Act, and this register shall be made available to the Special
Juvenile Police Unit (hereafter referred to as “SJPU”), local police,
magistrate or Special Court, as and when required.
(2) The
qualifications and experience of the interpreters, translators, Special
educators, and experts, engaged for the purposes of sub-section (4) of section
19, sub-sections (3) and (4) of section 26 and section 38 of the Act, shall be
as indicated in these rules.
(3) Where an
interpreter, translator, or Special educator is engaged, otherwise than from
the list maintained by the DCPU under sub-rule (1), the requirements prescribed
under sub-rules (4) and (5) of this rule may be relaxed on evidence of relevant
experience or formal education or training or demonstrated proof of fluency in
the relevant languages by the interpreter, translator, or special educator,
subject to the satisfaction of the DCPU, Special Court or other authority
concerned.
(4)
Interpreters and translators engaged under sub-rule (1) should have functional
familiarity with language spoken by the child as well as the official language
of the state, either by virtue of such language being his mother tongue or
medium of instruction at school at least up to primary school level, or by the
interpreter or translator having acquired knowledge of such language through
his vocation, profession, or residence in the area where that language is
spoken.
(5) Sign
language interpreters, Special educators and experts entered in the register
under sub-rule (1) should have relevant qualifications in sign language or
special education, or in the case of an expert, in the relevant discipline,
from a recognized University or an institution recognized by the Rehabilitation
Council of India.
(6) Payment
for the services of an interpreter, translator, Special educator or expert
whose name is enrolled in the register maintained under sub-rule (1) or
otherwise, shall be made by the State Government from the Fund maintained under
section 61 of the Juvenile Justice Act, 2000, or from other funds placed at the
disposal of the DCPU, at the rates determined by them, and on receipt of the
requisition in such format as the State Government may prescribe in this
behalf.
(7) Any
preference expressed by the child at any stage after information is received
under sub-section (1) of section 19 of the Act, as to the gender of the
interpreter, translator, Special educator, or expert, may be taken into
consideration, and where necessary, more than one such person may be engaged in
order to facilitate communication with the child.
(8) The
interpreter, translator, Special educator, expert, or person familiar with the
manner of communication of the child engaged to provide services for the
purposes of the Act shall be unbiased and impartial and shall disclose any real
or perceived conflict of interest. He shall render a complete and accurate
interpretation or translation without any additions or omissions, in accordance
with section 282 of the Code of Criminal Procedure, 1973.
(9) In
proceedings under section 38, the Special Court shall ascertain whether the
child speaks the language of the court adequately, and that the engagement of
any interpreter, translator, Special educator, expert or other person familiar
with the manner of communication of the child, who has been engaged to
facilitate communication with the child, does not involve any conflict of
interest.
(10)
Any interpreter, translator, Special educator or expert appointed under the
provisions of the Act or its rules shall be bound by the rules of
confidentiality, as described under section 127 read with section 126 of the
Indian Evidence Act, 1872.
It would be
in the fitness of things if similar provisions are made for adult women with
disabilities who are subjected to sexual abuse.
We suggest that concerned Ministries and Departments be directed to issue
advisories to police stations, courts, legal services authorities, government
hospitals and health centres to provide all the required support including,
access to interpreters and social workers to the women with disabilities who
approach them.
Also there
needs to be accountability in the matter of making services of an interpreter/counsellor
available to victims.
Training Of Police/Judiciary
& Medical Professionals
Training/sensitisation
of police officers, judiciary and medical professionals on issues concerning
persons with disabilities, particularly women with disabilities and the
violence they face should be made mandatory.
We suggest
that there must be Standard Operating Procedures (SOP) in place for the police
to follow while investigating cases of sexual assault. These SOPs must refer to
the specific needs of women with disabilities, at each stage of the
investigation and the role of the police during trial.
Abuse within Institution
A large
number of women with disabilities are abused within institutions like hospitals
and shelter homes.
Apart from
sexual abuse, at times in some institutions these women are not clothed
properly and are also subjected to verbal abuse. The guidelines issued by the
NHRC should be strictly adhered to in such cases.
A monitoring and regulatory authority has to be established at the
district level consisting of activists and specialists from the
district who will have visiting rights and access to these places for regular
check ups. Periodic inspection of these
institutions by the authority so established should be made mandatory.
Counselling and Rehabilitation
Policy
and legal measures to prevent and reduce violence against women with
disabilities and shield them against such abuses by themselves are not enough.
Necessary legal aid/help to bring the perpetrators of such
crime to justice has to be provided.
Victims
of such crimes have to be provided with adequate and appropriate counselling
facilities. In the case of a victim getting pregnant consequent to sexual
abuse, appropriate counselling and options should be offered to the victims.
Rehabilitation
of such victims is also paramount. Rehabilitation measures should equip the
victims with knowledge and skills to be able to engage in productive
livelihood.
In the
annexure appended herewith we have cited certain instances of sexual assaults
against women with disabilities to demonstrate the nature of the vulnerabilities faced by women
with disabilities and how they have been handled by the existing institutional
and legal machinery.
We
hope that the Committee will consider these issues also seriously as also the
wider issues involved.
Signatory organisations, in alphabetical order:
1.
Aarth Astha,
2. Centre for Women’s
Development Studies,
3.
Centre for Care of Tortured Victims, Kolkata
4.
Differently-Abled Welfare Federation, Kerala
5.
Gujarat Viklang Adhikar Manch,
6.
Haryana Viklang Adhikar Manch, Haryana
7.
Himachal Viklang Adhikar Manch, Himachal Pradesh
8.
Human Rights Law Network,
9.
Janarth,
10. Jharkhand Viklang Morcha,
Jharkhand
11. Karnataka Rajya
Angavikalara Mattu Palakara Okkota
12. Lakshwadeep Disabled
Association, Lakshwadeep
13.
Manipur Rights for the Disabled, Manipur
14. Marg,
15. Mehac Foundation,
16. Paschim Banga Rajya
Prathibandhi Sammelani,
17.
Platform for Rights of Disabled, Orissa
18.
Point of View, Mumbai
19.
Sangarsha Apang Ani Palak
Sangh,
20.
Snehi,
21. Sruti Disability Rights
Centre, Kolkata,
22. Tamilnadu Assn for the
Rights of Differently-Abled & Caregivers, Tamilnadu
23. The Banyan, Tamilnadu
24. Vikalangula Hakkula Jathiya Vedika, Andhra Pradesh
Prepared by:
National
Platform for the Rights of the Disabled
4,
Tel.
23369598, 9868768543
Annexure
Certain Instances of Sexual Assaults Against Women With Disabilities
Demonstrating The Nature Of
The Vulnerabilities
Sexual
Assault
On
a Girl with Intellectual Disability
A
young girl with intellectual disability was repeatedly raped and abused within
Ashreya, a government residential institute in
The
Supreme Court Judgement CIVIL APPEAL NO.5845 OF 2009 (Arising out of S.L.P. (C)
No. 17985 of 2009) Suchita Srivastava & Anr. ...Versus Chandigarh
Administration ... observed:
“On 16.5.2009, a medical social worker and a
staff nurse working at ‘Ashreya’ observed that the victim was showing signs of
nausea and had complained about pain in her lower abdomen in addition to
disclosing the fact that she had missed her last two menstrual periods. Acting
on their own initiative, the medical social worker and the staff nurse
conducted a pregnancy test with a urine sample and found it to be positive.
Following this development, a medical board consisting of two gynaecologists
and a radiologist was constituted on 18.5.2009. The gynaecologists then
examined the victim in a clinical environment and concluded that she had been
pregnant for 8-10 weeks at the time. The radiologist also confirmed the fact of
pregnancy on the basis of an ultrasound examination and recorded a gestation of
approximately 9 weeks on the same day.”
The
girl was unable to comprehend that she was being assaulted. Secondly, she was
also unable to identify the perpetrators. This case is being cited to underline
the fact that in cases where women with mental illness or intellectual
disability are assaulted they are often not able to complain and even their
care-givers in some cases are unaware of the abuse they are subjected to.
In a case reported from
Sexual Assault
On A Blind Girl
Given
below is the testimony of a Blind girl at a Public Hearing on Issues affecting
Women with Disabilities organised by the
“I face
sexual abuse regularly. I have to commute to college by public bus. I need help
of others in crossing roads and even during bus rides. One day I asked a man
who was standing at the bus stop to help me to get into the bus. I asked him to
hold my hand and then I realised he was touching my body also. I was very
nervous – I thought if I protested he will let me go off and I will meet with
an accident. You know how crowded buses in Kolkata are. This man kept on
touching me in an inappropriate manner inside the bus. But I could not protest.
And if I would have said anything, who would have believed? I can not see, so
for me to identify him would be difficult. And others would think that he held
my hands just to help me board the bus. So would they believe me?
“These kinds
of incidents happen regularly. I do not know if it happened to any of my
friends, I never discussed the same with them. This is something, I think
shameful to discuss.”
Incidents of Rape of
Women with Hearing Impairment
Several cases of rape/assault on women
with hearing/speech impairment have been reported during the course of the last
year.
In one such case in February 2012 a
hearing impaired girl was raped by a doctor inside the premises of the
In another case, again from West Bengal a national level
Assaults within Institutions
The Case of Dulal Smriti Samsad (Hooghly,
A
young woman’s body was found buried within the compound of a NGO run home,
Dulal Smriti Samsad, in July 2012. Investigations found out that Guriya, a
destitute woman who was mentally ill, was brought to this home by
The
incident came to light after one of the villagers staying nearby got wind of
it. He informed others and later on the story was picked up by the media.
It
was found that despite the home being registered under the Persons with
Disabilities Act, National Trust Act as well as Juvenile Justice Act, there was
no monitoring by any government agency. During investigations it also came to
light that several other inmates (most of them were destitute mentally ill or
women with intellectual disability) were routinely sexually abused. Men from
outside the home, with connivance of officials of the home committed the crime
after dusk. Some of the women when interrogated were also able to give names of
men who exploited them. Medical examination of some of the victims also
revealed signs of regular sexual intercourse. Copper-T was found inserted in
the bodies of a few inmates.
It
is obvious that this abuse and exploitation of hapless women was happening over
a period of time, as the victims were unable to express themselves or those who
were hearing them did not believe their versions. Even during questioning after
the first death was reported, the women were unable to narrate their
experience, given their mental condition.