News How the Nirbhaya Case Hits Uncomfortably Close to Home

How the Nirbhaya Case Hits Uncomfortably Close to Home

2020 Mar 23

In a pre-dawn hearing, the court brought down the curtain on the seven-year-long high profile case by rejecting the final pleas and petitions of the convicts and sending them off to the gallows of Tihar Jail, South Asia’s largest prison complex.

The road to justice for Nirbhaya’s family was fraught with obstacles since that fateful day in 2012. The four convicts—Mukesh Singh (33), Pawan Gupta (26), Vinay Sharma (27) and Akshay Kumar Singh (35)—had been convicted of gang-rape and murder in September 2013 and they only saw the rope on the 20th of March 2020 at 5:20 am. The Supreme Court had confirmed the death sentences for the accused back in May 2017, with a Delhi sessions court issuing death warrants in the Nirbhaya case three times previously, but the hangings of the four convicts were deferred three times since January till last week.

The attack became an inflection point, galvanizing a national debate on the treatment of women. The horrific crime triggered a firestorm of protests in India, the capital came to a standstill as protesters occupied the main streets. Protests continued in Delhi and several other cities for a fortnight, the number of days it took the victim to succumb to her injuries in hospital. The 23-year-old physiotherapy student was dubbed Nirbhaya – the fearless one – by the press and public.

Reacting to the massive protests, India announced new anti-rape laws in March 2013. They prescribed harsher punishments for rapists and addressed new crimes, including stalking, acid attacks as well as spying on a woman when naked and circulating her pictures without her consent. They also expanded the definition of rape to state that the absence of physical struggle didn’t equal consent. Also, under the new laws, a repeat offender of rape could be given the death penalty. The authorities also updated the law to allow the death sentence for repeat rape offenders and in cases where the victim is a girl under the age of 12.

Furthermore, there was an introduction of fast track courts to move rape cases through the justice system swiftly, an amended definition of rape to include anal and oral penetration, and the publication of new government guidelines intended to do away with the two-finger test which purportedly assessed whether a woman had sexual intercourse.

It is almost insane to think that before none of these were covered by the laws and policies governing grievous crimes of this nature which inextricably puts marginalized communities in such vulnerable positions in the eyes of the law and society. Nirbhaya’s death has helped to lift the shame around discussing rape. However, many of the problems associated with India’s rape crisis continue despite progress in this sphere.

Our little island home does not sing a different song either in this regard. According to Sabaragamuwa Province Governor President’s Counsel Marshal Perera, rape is going on unchecked and a woman is raped every four hours in Sri Lanka. 

Rape is defined as a “physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” However interestingly, according to the Penal Code of Sri Lanka, a man commits the crime of rape, only by having sexual intercourse with a woman without her consent, or against her will, where vaginal penetration by a natural penis is an essentiality. Comparing the two, given the extensive definition employed by International law, it is apparent that the definition of rape in Sri Lanka is quite narrow in scope. The past few years have witnessed its dangerous consequences which renders improving the Laws of Rape not just a legal, but also a social necessity as many a perpetrator may get off the line due to mere technicality. Improvement, in this regard requires tri-parte changes in substantive, procedural and structural aspects in order to build an efficient justice system. Firstly, the fundamental problem of gender specificity, the narrowly defined act of rape and the lacuna in marital rape within the legal definition of rape requires substantive improvements. Secondly, the pragmatic aspects of law enforcement should be reformed. Finally a socio-humanistic approach to the Laws of Rape should be brought forth in order to facilitate structural reforms. To dive into such a matter let us look at this simple example Sri Lanka statutory rape law is violated when a man has consensual sexual intercourse with a girl under age 16. The age of consent lowers to 12 when married, and not judicially separated from her husband. If anything the laws help the rapists instead of the victims in this regard with archaic methods of gathering evidence and horrible court procedures which scare most people from ever wanting to take a stand.

The gang-rape and killing of Saranya, the rape and killing of 13 year old Luxmy from Delft, the rape of two school children from Karainakar by the Navy, the killings of little Seya and Jerusha….and the list of local cases go on and on.

The results of these protests, public statements, articles, petitions, letters to the President have all been the same. The police make some arrests, appoint multiple teams to “investigate” into the incidents, Government authorities make public assurances to end violence against women and then once the momentum dies down, the latest case like most other cases before it, sinks into the ‘black-hole’ that is our justice system. 

One of the gravest aspects of this entire issue is that at every juncture, be it legally, socially or culturally, it is the victim, survivor and their families that are most vulnerable. Whilst legally, the system almost seems to protect the perpetrator, by way of rape still being a bail-able offence, constant delays by the Police and the courts, and a complete lack of protection for survivors and their families. Society is ever ready to place the entire blame of rape or sexual violence on the victim or survivor, stigmatize and ostracize them from society and victimize them all over again. This behaviour by the society at large not only contributes to protecting the perpetrator but also to perpetuate a culture of impunity.

So much needs to change but it needs to be a conscious collective effort by society working in tangent with all sectors to root out such poisonous behaviour. In order to combat this, perpetrators must face not only legal repercussions but social consequences as well. The government has an obligation to increase legal accountability, but society must also play a role in addressing this problem plaguing our island nation. 

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