In the wake of the and killing of a 23-year-old student on a New Delhi bus last month, many in India are behaving as if all can be set right, provided the men guilty of this particular assault are made to pay.
What’s needed instead are reforms to legal and medical procedures for handling rape, as Indian activists have long sought and the country’s highest court has ordered.
The popular emotional reaction to the present case, though understandable, is unhelpful to the cause of justice. The bar association connected to the court hearing the case, for instance, has banned its 2,500 members from representing the five men charged with the crime. Even if other lawyers eventually represent them, their lack of counsel so far could become grounds for an appeal.
Then, because the charges include murder, the prosecution says it will seek the death penalty, and many Indians insist that those found guilty be hanged. A number of officials also propose making aggravated rape a capital crime.
Both measures would be backward steps for India. The country hasn’t carried out a death sentence in almost eight years, with the exception of the execution in November of the surviving terrorist from the 2008 Mumbai attacks, in which 171 people died.
What’s more, attaching the death penalty to rape could backfire. It could encourage rapists to kill their victims, because dead women tell no tales. And police, prosecutors and judges might be less willing to pursue rape complaints if the accused’s life is at stake.
Already, the crime is vastly underreported in India. United Nations figures show 63 rapes annually per 100,000 people in Sweden, 27 in the U.S. and just 1.8 in India.
Assuming a rape victim overcomes cultural reasons to drop a case, such as fear of shaming her family or being deemed unsuitable for marriage, she still faces obstacles. Police often refuse to accept rape reports, as in the case of a 17-year-old girl in Punjab who committed suicide last month after an officer suggested she marry one of the men she said had gang-raped her.
There are medical hurdles as well. Victims are often sent to separate facilities for treatment and various forensic tests, so that they have to tell their painful stories and endure intimate examinations multiple times.
Many undergo India’s notorious “two-finger” test, in which a doctor inserts two fingers into the vagina to test its laxity. The doctor records either that the procedure caused the woman pain or that it did not and she is therefore “habituated to sex,” a notation used in court to cast doubt on a claim that sex was forced.
Either way, the woman loses. India’s Supreme Court has ruled that the test cannot be used in this way, yet the practice continues.
As long as these barriers to prosecuting rape persist, it will matter little what penalties India has on its books or applies in the notorious bus case.
If India is serious about addressing rape, it must enable cases to come to light even when a victim hasn’t been lethally beaten, stripped and tossed on the side of the road, as the 23-year-old Delhi student was. This means creating a rape-response system that is sensitive to victims and ensures police accountability, as a coalition of Indian activists have urged Prime Minister Manmohan Singh to do.
Ideally, health care and forensic tests should be provided at one time and place by one specially trained person, as the World Health Organization advises in its guidelines for dealing with victims of sexual violence. Care and exams should be administered according to established protocols, and the two-finger test should be banned.
Police procedures should also be made uniform. To ensure police follow through on rape complaints, state governments must monitor the number of cases filed, investigated and successfully prosecuted.
And, as the Indian Supreme Court ordered in 2006, Police Complaint Authorities should be established throughout the country, so citizens can raise issues of police inaction or, worse, participation in rape.
With these changes, the culture of impunity for rape would begin to fade, and not just when a case becomes big news.
To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at firstname.lastname@example.org.