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Caste, Judiciary and Collection of Evidence in Sexual Crimes

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When a Dalit woman of the Sansi nomadic community in Rajasthan’s Churu was raped by dominant caste men in 2018, the village panchayat ordered that the survivor’s family be denied any work in the village and not have access to essential commodities. The panchayat also proclaimed that a fine would be imposed on anyone who would try to help them. Even after the survivor’s incriminating statement was recorded, the accused was not arrested: rather the police filed a false report in this case when she refused to compromise.

While the reasons for caste-based violence can be over material aspects/resources, such as land ownership and infrastructure developments, there is always a pronounced element of humiliation intended to send a strong message to those who challenge the caste hierarchies.

One horrifying aspect of such incidents is the consistent and desperate attempt to destroy any evidence that could implicate the accused in the crime, in the rare occurrence the case sees the light of day in the court. The absence of corroborative evidence has been used by the accused, the defence counsels and the judiciary, time and again, to deny the occurrence of the crime in the first place. This has been majorly true for all women victims of rape. However, for Dalit women, inequal access to emergency to medical care, institutional apathy displayed by medical officials and the police, as well as casteist bias displayed by judges, further impede access to justice and exacerbate the trauma in the aftermath of the crime.

In the pre-trial stage, medical examination of the survivor and collection of evidence by the medical officials and police, emerge as highly questionable practices. Healthcare providers, including doctors and nurses, should recognise the ‘right to health’ for all persons, and written informed consent should be obtained prior to conducting medical examinations or initiating medico-legal investigations. 

However, most Dalit survivors are not told the purpose behind different examinations. Therefore, though medical officers record consent on a piece of paper, they are rarely in a position to give an informed consent, especially in the aftermath of sexual violence. As a direct consequence, the medical examination often overlooks and does not offer treatment for hidden (or not obviously visible) injuries, and no prophylaxis is offered for sexually transmitted diseases whose probability is high in the aftermath of sexual violence.

The survivors, including children, are also often manipulated into giving consent for invasive tests, such as the two-fingers test. The practice of inserting fingers into the vagina to check its laxity is employed by the medical community and consequently by the judicial system despite the Supreme Court’s ruling in Lilu@Rajesh and Anr v State of Haryana (2013) that declared it unconstitutional and held that the “previous sexual experience of the victim should not be taken into account or consideration while determining the consent or the quality of the consent given by the victim.” Many cases specifically mention the medical officer noting that conducting the two-fingers test was difficult, because the child found it painful; the tests were done anyway. The test is not only illegal but unethical and a violation of human rights.

The Supreme Court, in 2000, affirmed that medical examination of the rape victim was indeed a “medicolegal emergency,” and that the victim is entitled to gain medical service irrespective of the case being reported to the police. Despite this, survivors are routinely denied any emergency medical attention in the absence of any police officer, or without a referral from the concerned police officer.

In cases where medical examinations do happen, an overwhelming majority get delayed due to reluctance of the police to register a First Information Report (FIR). Due to apathy, lack of training and knowledge of proper procedure, their own caste biases, patriarchal internalisation and often also corruption, police do not register FIRs or probe deeply into cases of inter-caste nature. This manifests in the form of ‘delayed reporting’ and ‘lack of evidence’ that are quoted in the judgements regularly and that substantially diminish chances of conviction.

In the case from Rajasthan, the police refused to register a complaint on the day of the crime, and were forced to do so later after seven days when the victim along with her family went back to the police station to report harassment from the accused and his family over one week. The medical examination happened on the eighth day after the rape, therefore, all relevant medical evidence was lost. The case resulted in acquittal of the accused.

Medico-legal textbooks narrowly define rape, through pentrative intercourse, and continue to perpetuate that injuries in the genital area of women are the only conclusive proof of any non-consensual intercourse. 

Such claims have now been refuted by contemporary medical research, along with some court judgements. However, the two-fingers test and other medical evidence continue to be used in courts to ‘objectively’ and ‘scientifically’ demonstrate a woman’s habituation to sexual intercourse. Despite a repeal of section 155(4) of the Indian Evidence Act in 2003, the defence is still very often directed at questioning the character of the victim and her sexual history. 

The prevalence of caste and gender bias among India’s judges, heavily influenced by Brahmanical notions of purity and pollution, negatively impacts the prosecution in such cases. This bias has resulted in improperly conducted trials, including acquittals that blatantly ignore evidence and witness testimony.

In the case of Bhanwari Devi in 1995, the judgement displayed the nexus between the caste system, legal system, patriarchy and the state. The premise of the judgement, and the ‘reasons’ used by the judge to conclude the innocence of the accused, are testament to the casteism entrenched in the judicial system. More than two decades have passed and laws have been enacted like that of the Prevention of Sexual Harassment at Workplace, however, the casteist jurisprudence has not changed. This delegitimises and also invalidates to a great degree the trauma of Dalit women, and diminishes their faith in the judicial system, all the while sanctioning potential violent acts by the ruling oppressive castes.

Debarati is a public policy and social conflict researcher who draws inspiration from an anti-carceral, anti-caste and feminist approach to human rights, while challenging the systems of privilege she benefits from.

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