India recently witnessed the painful death of a 19-year old Dalit woman from Uttar Pradesh’s Hathras district who was allegedly gangraped and then strangulated by four men from the so-called upper caste Thakur community.
Following her death, the local police hastily cremated her body in the dead of the night against the wishes of her family members who were forced to stay locked inside their home. Later, the victim’s family alleged that the district administration and police were harassing and intimidating them.
The tragic death of the victim and the events that followed reflect a critical intersection – sexual crimes against disadvantaged women. In this case, arguably, the victim’s Dalit identity was integral to why the crime took place and how her family was treated by the administration thereafter. It shows the double affliction of caste and sexual violence in Indian society.
In this regard, another intersectionality warrants a discussion – women with disabilities (WWDs) and their expedition of justice in sexual violence cases.
As per a 2018 report by the Human Rights Watch, women with disabilities (WWDs) are more vulnerable to sexual violence due to their bodily impairment, which is compounded by an inaccessible criminal justice system. The law turns a complete blind eye towards victims of sexual violence who find themselves at the cross roads of feminity and disability. This happens to such an extent that India’s National Crime Record Bureau (NCRB) does not even maintain separate data on crimes against WWDs.
A WWD is indefensible in the face of sexual violence as she cannot pre-empt any sexual advances. This particularly becomes a problem for women with visual impairment and psychosocial disabilities. Struggling to escape and raising an alarm becomes an arduous task due to various physical limitations. For women with psychosocial disabilities, assessing the existence and nature of sexual offence becomes onerous. Reporting the crime is another daunting task due to the associated stigma and inaccessible criminal procedures.
The fundamental problem with the laws pertaining to disabled persons and women is that the former do not account for the aspect of gender and the latter do not account for the aspect of disability.
A gender-blind law on disability
In India, the language of the law has become more disabled-friendly after the passage of the Rights of Persons with Disability Act, 2016. Section 3 of the same encapsulates the right to equality and prohibits discrimination on the basis of disability.
Furthermore, Section 13(2), recognises the right of Persons With Disability (PWD) to enjoy legal capacity on an equal footing with any able-bodied person. On reading this section with substantive equality provisions of the Constitution, it can be said that it also envisions reasonable accommodation to ensure that the PWDs are put on an equal footing before the law in terms of representation and participation.
However, the law does not recognise women’s vulnerability to violence. Section 7(1) exhorts the government to take requisite measures to protect “persons with disability from violence and abuse.” The section also places a positive obligation on the government to take cognizance of such offences and provide legal remedies to the victims, take steps to prevent such incidents, facilitate their rehabilitation and raise public awareness regarding the problems that plague PWDs.
This generic provision does not recognise the particularised experiences of WWDs. Furthermore, the RPWD rules 2017 do not provide for any procedure to fulfill all the obligations placed on the government in Section 7(1), thereby reducing the provision to a tall claim with no practical application.
The legislation or any rules passed thereafter do not provide for any action plan to protect WWDs from sexual violence. This is how the laws on disability are gender blind.
A disability-blind law on sexual violence against women
On sexual violence, there have been some meaningful changes in the substantive provisions of Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and Protection of Children from Sexual Offences Act (POCSO). For instance, rape of a WWD counts as aggravated rape within the meaning of Section 376(2)(i) of the IPC.
If someone indulges in penetrative sexual assault or sexual assault by “taking advantage of a child’s mental or physical disability”, they can be charged for aggravated penetrative sexual assault under Section 5(k), and aggravated sexual assault under Section 9(k), of the POCSO Act, respectively.
There have been some amendments to the procedural law to bolster the substantive law. For instance, the Criminal Law Amendment Act, 2013 provides that whenever a WWD has been allegedly been a victim of sexual violence, the magistrate ought to record her statement at her residence or any other place that is convenient for her.
The law mandates that the statement should be videographed in the presence of an interpreter or special educator. POCSO 2012 also provides for the video recording of the statements of child victims and further allows the usage of the video clip in court for the purposes of chief examination. This is done to protect the victim from repeated interrogation in courtrooms, which can be extremely traumatising for the victim with disability.
However, these procedural safeguards rarely contribute towards simplifying the victim’s expedition for justice, which is otherwise very alienating and inaccessible.
Filing complaints independently is challenging for WWDs, as not all states provide for online registration of FIRs and not all government websites are disabled-friendly. If the victim chooses to lodge an FIR by visiting the police station in person, it is very unlikely that they will receive an accessible copy of the FIR as mandated by Section 154 (2) of CrPC, as the police do not have enough knowledge about the procedures.
The police are generally not able to follow additional procedural requirements, either due to lack of knowledge or due to lack of sensitisation. Many a times, they do not specify the disability of the victim in the FIR, are not able to assess the unique requirements of the victims and do not provide for reasonable accommodation while recording statements of the victims with respect to taking assistance of special educators and choosing a convenient place for the examination of the victim.
Even after the successful registration of the FIR, identification of the accused becomes particularly challenging when the victim has visual impairment or psychosocial disability. More often than not, the courts do not accord a lot of evidentiary value to the testimonies of the WWDs.
For instance, in a case reported by Human Rights Watch, a girl with psychosocial disability gave oral evidence as to the identity of the accused before the court. But, her statement was thrown out on the ground that her deposition was unintelligible, even when her mother had interpreted whatever she said. The judge questioned the reliability of the evidence due to their ableist biases, since such oral evidence is otherwise admissible and sufficient under POCSO, which provides that the court can take “the assistance of person familiar with the manner of communication”.
It is clear that a mere rights-based language of the law cannot promise practical remedies, for actions certainly speak louder than words. Unless the law does away with its benignity and the law enforcement authorities do away with their insensitivity and inertia of ableism, we will continue to witness rising sexual crimes against women with disabilities.
Views expressed are the author’s own.
Featured image (representational) by Rotary Club of Nagpur from Wikimedia Commons.
is a student of law at the National Law School of India University, Bengaluru.