Written by: Regina Paulose

Credit: The guardian http://www.guardian.co.uk/world/2012/dec/29/india-gang-rape-six-men-charged-murder

The Verma Report

In the last couple of months, women’s and children’s rights have catapulted to the forefront of the international community due to tragic situations involving sexual assault. The most notable of these was the New Delhi gang rape in December 2012. This is not the first time these situations have happened. Why these situations have garnered this much media attention as opposed to similar situations that occur daily is an anomaly. However, the extensive spotlight has created a space for needed global discourse and critique of the current framework regarding victims’ rights.

One would be amiss to think that this problem is unique to India. In fact, in the research that was surveyed for this brief article, a vast amount of information indicates this is nothing short of a global endemic.

The December 2012 gang rape in New Delhi has forever changed the way women and children’s rights will be discussed in India. The tragic and grotesque situation, mobilized the people of India to protest inadequate laws that allow women and children to fall prey to those with an unforgivable appetite for sexual propensities. As a result the Government formed, under the leadership of Justice Verma,[1] the Committee on the Amendment to Criminal Law in India, which issued a report (Verma Report) in response to the huge public outcry. The Commission took responses from over 80 groups in addition to surveying laws from different countries.  The Commission’s conclusion after 200 + pages was simple.

Breathe life into your hollow laws and hollow words.

Although the report contains recommendations that the Indian legislature should adopt to address problems relating to sexual assault, it contains, what this author believes, to be a global framework that every country should consider in reevaluating and formulating laws that seek to protect victims from sexual assault.

The New Framework and its Four Pillars

Brutality/violence against women and children is a “deficiency [that] has to be overcome by leaders in society aided by systemic changes in education and social behavior.”[2] The report outlines what is broken down into four pillars which make up a new framework.  These pillars are not discussed in any particular order of preference.  Each pillar represents an area that will need to be improved alongside the other pillars[3] to allow shifts such as the one envisioned in the Verma Report.  Additionally, these four pillars are not discussed in minute detail, but serve as a launching point for more discussion which needs to involve holistic approaches.

Improvement of judiciary and government mindset

The judiciary, the guardian of the rule of law, should be continually up to date on the intricacies relating to sexual assault topics. The judiciary needs to change outdated conceptions that it may have of sexual assault victims.  These cases are victim dependent (99% of the time) and poor actions on the part of judges or a hostile courtroom can prevent a victim from participating in proceedings. In 2011, in Manitoba Canada, a Judge was scrutinized for his “archaic” statements when he analyzed the night of a sexual assault and said that “sex was in the air” and that the defendant was a “clumsy Don Juan.”[4]  In places such as the United States and Canada, judicial remarks such as these can be reviewed by an independent council or a bar association, which could result in punitive measures. However, punitive measures do not necessarily lead to a change in attitudes when these cases are presented.

It is important to address these attitudes that start from the judiciary and work its way through lawyers and juries. “Social attitudes are a thread running through the criminal justice system in response to rape.”[5] “Rape myths” as it is sometimes referred to “can directly or indirectly serve to excuse perpetrators and blame victims, and psychologists have found that they may also increase the likelihood that individuals will commit rape.”[6] There are also those who are of the opinion that the “rape myth” is “overstated” and challenge it on three grounds (1) some attitudes are based on opinions and facts (2) not all myths are about rape but rather how people negotiate sex and (3) there is little evidence that rape myths are widespread.[7]  Regardless of one’s position on the prevalence of rape myths, it still stands to reason that those who have the most power in interpreting laws and protecting victims should be knowledgeable in this area. These judicial players have an obligation not to perpetuate attitudes that continue to harm women and children. A victim should not make a decision to report or proceed with a case based on whether or not she will be believed by the attorneys, judge, or the jury.

Government attitudes towards sexual violence also need to change. It is evident that many government actors need to be educated on issues such as rape and women’s rights, in addition to utilizing their power to enforce laws. It would also be of use for legislatures and government players to review laws that have large gaps that allow women and children to fall prey to predatory acts.

Education/Retraining and Accountability of Law Enforcement

Law enforcement people are considered “arbiters of honor.”[8] This pillar has three components. The first component involves proper education and training on the root causes of sexual violence. Law enforcement needs to properly respond and not be apathetic, which can create a large change in how these situations are addressed.  This re-education and training unfortunately can present an uphill challenge as it also requires replacing existing beliefs in some communities. For example, law enforcement should be vigilant against “honor crimes” which are prevalent in different parts of the world. “Honor killings” or “honor based violence” are deeply rooted (origins stem from the Bible) and it is estimated that 5,000 honor based killings happen a year internationally.[9] Another example is eliminating the concept of shame. In sexual assault situations, the question should be about “bodily integrity” which translates into “integrity of the community.”[10]  This kind of shift in the mentality of law enforcement would allow more victims to come forward.

The second component involves the actual enforcement of the laws. In Kenya, where a large amount of sexual assault laws protecting women exist, women’s groups have challenged the enforcement of these laws based on the fact that police have done little to effect the law thus resulting in sex discrimination. A claim was submitted to the Kenya High Court as of October 2012 on this basis.[11] In Honduras it has been reported that there exists an “”apparent inability” of the government to effectively enforce legislation on the matter because of the lack of proper training for law enforcement personnel.”[12] In China, “when a victim has reported a sexual assault to police, seeking justice, hoping for the violator to be punished by the law, if the violator is powerful or backed by someone important, the victim will be pressured to solve the problem quietly, mostly to save face for the violator and related parties.”[13]

The third component has to do with creating laws or enforcing laws which hold law enforcement (including military) accountable. There are unfortunately many situations around the world in which law enforcement are perpetrators of this crime.  In Mexico, two police officers allegedly raped an Italian tourist while she was leaving a club at night. The officers also demanded money from the victims.[14] This was on the heels of another occurrence in Mexico where a similar situation occurred. It is also important to note that rape occurs with high frequency in conflict situations. As examined in different reports:

“mass rape in war has been documented in various countries, including Cambodia, Liberia, Peru, Bosnia, Sierra Leone, Rwanda, the Democratic Republic of Congo, Somalia and Uganda. A European Community fact-finding team estimated that more than 20,000 Muslim women were raped during the war in Bosnia. At least 250,000, perhaps as many as 500,000 women were systematically raped during the 1994 genocide in Rwanda, according to reports from the World Bank and UNIFEM. Most recently in Darfur, Western Sudan, displaced people have described a pattern of systematic and unlawful attacks against civilians by a government-sponsored Arab militia and the Sudanese military forces.”[15]

Prosecution of such crimes needs to occur and immunity should never be granted to personnel engaging in torture. For example, in Burma, no law exists which mandates the investigation of crimes by military troops because they are granted full immunity and are outside the jurisdiction of civilian courts. Minority groups have alleged that acts of sexual violence have occurred by the military, yet due to immunity, they walk free.[16]

Enforcement of State Obligations under International/Domestic Law

States have international obligations under the UN Declaration of Human Rights, the ICCPR, the ICESCR, and CEDAW to protect women and children. However, the world is not unified on various conventions and their provisions despite all the rhetoric. For example with the CEDAW, many countries had expressed that they would not include certain provisions (specifically contested are Article 2- equality of women and Article 16 – legal, cultural, and political rights for women).[17]  It should be noted that scholars do suggest based on various studies that treaty ratification does not necessarily equate to a better record of human rights performance.[18] In the bigger picture however, having such legislation implemented or modeled on a domestic level is important. In March 2013, US President Obama signed in to law the Violence Against Women’s Reauthorization Act (VAWA) which affords various protections for women.[19] One of the landmark items was the passage of provisions which protect Native American women from gaps in the law, which prior to VAWA did not allow them to prosecute perpetrators on reservations. This should be hailed as a major step forward in light of the fact that “federal prosecutors decline[d] to prosecute 67 percent of sexual abuse cases” on reservations and that “more than 80 percent of sex crimes on reservations are committed by non-Indian men, who [were] immune from prosecution by tribal courts.”[20]

Obligations of the State to provide for women and children

There is no question that the “state has a fundamental duty to protect women from gross/horrible violations of human rights.”[21] Women and children need to be protected from malnutrition, should be given access to means of economic empowerment, and should be safe from trafficking and domestic violence. These tools allow women to have a chance at being equals in society.  In India, the rhetoric of equality for women dates back to 1939.[22] Many probably assume that lesser developed countries are in desperate need of women’s rights laws. However, the 2012 World Economic Forum Global Gender Gap Report indicates that countries such as the Philippines, outranked the USA for protecting women’s rights.[23] In another survey conducted by TrustLaw, which ranked the G20 nations (but only ranked 19 of the 20), the survey found that Canada was more “egalitarian” than its counterparts and ranked China at #14 and India at #19.[24]  These indicators only serve to emphasize that “gender equality furthers the cause of child survival and development for all of society, so the importance of women’s rights and gender equality should not be underestimated.”[25]

Next Steps

Although the Verma report (a must read) is more detailed and more researched than this short article, there comes a time when law and rhetoric should create a perfect storm for action on sexual violence against women and children. It should be an embarrassment to any civilized society that sexual predators and rapists roam free without punishment. As studies continue to indicate, society will pay an ultimate price if women are not considered equal and action is not taken against this kind of violence. From a brief glance at each of these pillars, it is obvious that every single country in the world has a lot of work to do.