Breaking the Silence - Rape of the Disabled

- Dipa Dube

Violence and disability are integrally related. In fact, disability attracts violence and the same is glaring in cases of rape of young girls and women. In recent times, several instances of sexual violence have been reported the world over, wherein the aggressors have taken advantage of the helplessness and vulnerability of the victim, because of her disability, and victimized her. That creates a cause of concern. But the criminal law has not addressed the problem. Even in Section 376(2) IPC, which speaks of aggravated forms of rape, no mention has been made of rape of the disabled. This article seeks to focus on the problem and consequent change in legislation, coupled with a sensitized outlook of judiciary, in light of studies conducted which highlight a close nexus between disability and violence.

Introduction

Rape has long been known as the most devastating of offences perpetrated against humanity. It is a dastardly act aimed at demeaning, humiliating and demoralizing the entire physical and psychological composure of a woman, reducing her to a living corpse for the rest of her life. Studies have revealed that the effects of such a traumatic experience can be fatal, both at the individual level and the social environs which surround her.

Popularly known as the 'rape trauma syndrome', the effects perceived at the individual level include physical, emotional, and behavioral stress reactions. They can be divided in two stages: the Acute Phase of Disorganization and the Long-term Process of Reorganization, which includes immediate impact reactions such as fear, anxiety, shock and numbness or phobias, sexual disinterest and nightmares.

At the other level, is societal impact. In a country like India, a woman who faces the ordeal has little or no chances of marriage. She and her family have to bear the trauma for entire life. More often than not, she is blamed for what had befallen her and as a consequence, she is driven to commit suicide or opt for living through indulgence in more nefarious activities.

The present writer aims not to highlight the effects of the act of rape, but through the back door introduce to her readers, the more despicable of situations, when it concerns rape of a physically or mentally disabled woman. The penal law has, as yet, not addressed the problem. Therefore the laws of rape do not spell out rape of a disabled woman as an aggravated form of offence involving higher penalties.

But the same needs to be understood and provided for, since the pains and pangs of the commission of the heinous act on a, otherwise, defenseless and helpless woman could be much more than in case of ordinary rape. Similarly the culpability of the act attains greater heights the moment it is clear to the aggressor that the victim is mentally or physically disabled.

Disability and Violence

Disability has long drawn the attention of the lawmakers. As a result thereof, acts pertaining to the disabled have been passed guaranteeing them rights similar to, if not more, than ordinary human beings. However, the area of violence and disability has not been long stressed. No relation, whatsoever, may be drawn on a plain understanding of the two but what remains is the vulnerability of these people to violent acts of others.

The word 'disability' in simplest sense of the term, refers to an imperfect condition of mind or body, effected by deficient functioning of any limb, organ etc. of the body. According to Americans with Disabilities Act (ADA) 1990, an individual with a disability is a person who:

1. Has a physical or mental impairment that substantially limits one or more major life activities;
2. Has a record of such an impairment; or
3. Is regarded as having such an impairment.

A 'physical impairment' is defined by the ADA as: "Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

" A 'mental impairment' is defined by the ADA as: "[A]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."

In India, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 defines the term as-

1. "Disability" means - Blindness;
2. Low vision;
3. Leprosy-cured;
4. Hearing impairment;
5. Loco motor disability;
6. Mental retardation;
7. Mental illness

Violence and disability are factors that can be integrally linked. Many people become disabled through acts of violence, and people with disabilities are more frequently the objects of violence than people without disabilities. It is the latter, which is the matter of concern in the present article. Studies have shown that individuals with disability are high risk groups because they are easy targets.

Some researchers had estimated that persons with disabilities are about one-and-one-halftimes more likely to encounter violence against themselves than the population at large. 'Westcott (1991) and the Roeher Institute (1988) had found that children with disabilities were at a high risk of abuse compared with other children.'

'Statistics Canada in its recent survey on assault and sexual assault against women, collected raw data on female abuse survivors who had ongoing health problems that affected their daily activities. The data indicated that adult women aged 16 years and over with a disability or disabling health problem were considerably more likely than females without such limitations to be physically or sexually assaulted by their partners over the course of their married lives (39 as compared with 29 per cent).

Examining the extent to which women in Canada had ever in their adult lives (i.e., since the age of 16) experienced one or more forms of assault or sexual assault as proscribed by the current Criminal Code, survey indicated that women with disabilities were more likely than women without disabilities to be subjected to violence of some kind: 60 per cent compared to 50 per cent.'

"We live in a violent society. And people who for one reason or another are unable to assert their own needs or their rights, or protect themselves - many of whom have a disabling condition - are susceptible to violence. …they can't run away. … So protection must come from their own efforts. And if they can't mobilize their own resources, or if there are no resources to mobilize, there's nothing anyone can do." [taken from an interview]."

The above quote relates the dark realities in the life of the physically and intellectually challenged. The same fact is asserted through numerous instances the world over of incidents of violence, specially sexual assault, on girls and women with disability.

Incidents of Sexual Violence on Disabled In Georgia, U.S., a thirteen-year-old mentally disabled girl was raped by as many as twenty men. Authorities said four men talked the girl into going home with them after a high school football game and then raped her. They later took her to an abandoned apartment in their complex where twenty other men ranging in age from 12 to 27 raped her.

Police said the girl had trouble remembering exactly what happened that night, but she was able to tell investigators enough for them to get arrest warrants for 12 people. According to The Star (4 January, 2001), a Malaysian newspaper, a grandfather, 73, was sentenced to two five-year jail terms (to run concurrently) on two counts of raping a 15-year- old mentally disabled girl.

The girl subsequently gave birth to his child. He is out on bail pending an appeal to the High Court. In another case, a 46-year-old man was charged under the Women and Girls Protection Act 1973, and jailed for four years and fined RM 2,000 in default six months' jail for the rape of a 12-year-old mentally disabled girl (The Star, 26 October 2000).

He raped her several times. The girl later underwent an abortion. Another shocking incident reported from Palestine speaks of the ordeal of a 17-year-old girl whose mental ability, as doctors confirm, is that of a 6-7 year old. She was brutally raped by a man in his fifties, who lured her to get into his car for candies and subsequently dumped her after committing the act.

The girl was later able to get the man arrested by identifying the flat in which the act was committed. Instances are galore of such occurrences throughout the globe. Even in India we have, of late, been hearing of the rising trends in this regard. Recently the National Human Rights Commission, New Delhi, has taken note of one such instance and issued directions to the Director General to submit his comments within two weeks.

The case relates to the rape of a 19-year-old visually impaired girl by two influential people of the locality in Nadia district of West Bengal. Because of the so-called political clout, the accused have remained scot-free and threatened the girl and her family of dire consequences in case of reporting of the incident.

The Commission in its note has mentioned that ' if the contents of the report are true, it raises serious issues of violation of the right to dignity and human rights of women.' Few more of the occurrences may be mentioned here. Nagina Choudhury of Jalpaiguri, West Bengal, was gangraped when she was a teenager.

She is now 24 and is still waiting for justice. Inspite of her physical disability, nothing has deterred her from continuing the fight against her aggressors, whom she recalls had dragged her brutally inside a van on Feb, 1995, raped her and them dumped her near her house. Her case is still to see the light of day.

On Aug 14, 2002, a minor girl was raped in a Mumbai suburban train in full view of five other passengers. While the victim could not scream or plead for help because she was disabled, the witnesses could not help as they were paralyzed by fear. The result was that a drunk Saleem Shamsher Sheikh raped a 17-year old disabled girl in full view of others, yet with objection of none.

In yet another shocking incident reported in the news channel, a physically disabled girl was raped and left to die by one of the local boys of the area. The girl had lost her mother in her infancy. Her father had abandoned her to marry another woman. She was brought up by her grandmother and uncle. Being hardworking and studious, she dreamt of making it big one day overcoming the shortcomings which destiny had bestowed upon her.

However one day, the girl, when alone, was raped in her house. Unable to see any respite for herself, she committed suicide before anyone could give her succor. The above are only the tip of the iceberg. While one or two of such rare instances get reported, hundreds of others get buried deep inside the psychological and social matrices of life.

The criminal law does not demonstrate any special concern for the disabled; neither the close nexus between violence, victimization and disability ever drawn the attention of lawmakers. Recently, however, the Supreme Court raised a very pertinent question:

'What happens when the victim is mentally challenged, such a woman is definitely at more vulnerable situation?' thereby trying to express its concern for those hapless victims of crime who have been left unattended for by the criminal justice system.

The Judicial Perspective

Not many reported cases can be identified in the area of disability and rape. The writer has therefore focused on four such cases decided by the courts of the land in order to understand the attitude of the judiciary towards the issue under discussion.

In Joginder Singh v. State of Haryana (1974 Cri.L.J. 1117) - the victim of rape was suffering from mental illness, chronic schizophrenia to be specific. According to medical opinion, she had no reasoning power and could not understand the consequences of acts. However, the act of rape had been witnessed by her husband and two other persons.

Without even making an attempt to come to the rescue of the deranged woman, the court, while refusing to accept the testimony of the eye witnesses stated that the victim was the best witness to prove whether the accused committed the sexual intercourse with her without her consent and against her will, but since she had not been produced, nothing could be established with firmness.

Furthermore, the witnesses had stated that the woman was moving her hands and feet and thereby offering resistance. But the simple fact that no injuries were found on her person negated their evidence. The court concluded that while the prosecution story may be true, it could not be said to beabsolutely true and the accused was given the benefit of doubt.

In Manga v. State of Haryana (AIR 1979 SC 1194), the victim of assault was a deaf and dumb girl of 13 years. She was raped by the accused, while on her way home. Her cries attracted the attention of few people who witnessed the accused lying on top of the victim and sexually assaulting her. Strong medical evidence confirming rape, coupled with the evidence of eyewitnesses satisfied the court of the culpability of the accused.

So far as non examination of the girl was concerned the apex court held that '[A] part from being a child witness, she was also deaf and dumb and no useful purpose would be served by examining her.' Coming to the question of sentence, the Supreme Court upheld the sentence of three years rigorous imprisonment and a fine of three hundred rupees passed by the high court.

The Rajasthan High Court was confronted with a similar case of rape of a deaf and dumb girl in Bhagwania v. State of Rajasthan (2001 Cri.L.J. 3719) .The eight year old girl was ravished at home, in the absence of her parents. She was found in an unconscious state, with blood oozing out from her private parts.

The medical reports, statements of eye witnesses, statement of the girl herself was held sufficient for the offence to be made out against the accused including however, the injuries on the person of the accused himself. One of the objections raised was with regard to the statement of the victim herself, whom doctors attested was deaf and dumb.

It was vehemently argued that evidence of the girl should not be believed, as she was deaf and dumb and 'if she uttered something in court, she was not deaf and dumb.' The Court, rightly, discarded the argument saying, "[T]his argument carries no weight. A deaf and dumb person may utter something and if he utters something, it does not mean that he was not deaf and dumb.

There are so many cases where deaf and dumb person speaks some words or makes other person understand by making gesture. Thus, if the child prosecutrix, P.W. 14, has uttered something in Court, it does not mean that she was not deaf and dumb."

The Court convicted the appellant under Section 376 (2) (f), IPC, and sentenced him to undergo ten years rigorous imprisonment and a fine of five hundred rupees. The last case which may be discussed here is thought provoking in its own way ( Tulsidas Kanolkar v. State of Goa AIR 2004 SC 978).

Somewhat akin to the Joginder Singh's case, this case related to a woman, whose mental faculties were underdeveloped and her Intelligence Quotient was not even 1/3rd of that of a normal person. Tragedy struck on the victim sometimes in 1999, when parents of the victim noticed that her legs were swollen and there were signs of advanced stage of pregnancy. They were shocked beyond limits.

They asked the victim as to who was responsible for her pregnancy. She, in her own way, pointed out accusing fingers at the appellant and said that on some pretext or the other, he had ravished her. Some money was offered to the parents by the mother of the appellant to have termination of pregnancy.

When asked about the possibility of termination of pregnancy, the doctor indicated a sum of Rs. 6,000/- as the amount required. Since the appellant's family was willing to part with only Rs. 2,000/-, there was no termination of pregnancy and a stillborn child was delivered by the victim. Information was lodged with the police on 10th August, 1999 by PW1 (father of the victim).

The accused was charge sheeted for the offence of rape. Three arguments were put forward by the accused in his plea of not- guilty: first was delay in lodging of FIR, the second of consent on the part of the woman and the third of non-examination of some witnesses.

As regards the first contention, the court emphatically asserted that "mere delay in lodging of first information report does not in any way render prosecution version brittle". "Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity.

It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor.

On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case." (See, State of Punjab v. Gurmit Singh AIR 1996 SC 1393; Mangi Lal v. State of M.P. 1998 Cri.L.J. 234; Karnel Singh v. State of M.P. AIR 1995 SC 2472) So far as 'consent' was concerned, the Hon'ble Court held that a mentally challenged girl can never give her valid consent, since she cannot understand the nature and consequences of the act to which she consents.

Furthermore, there is a sea of difference between 'consent; and 'submission'. Every consent involves a submission but the converse is not true. As held in Rao Harnarain v. State of Punjab (AIR 1958 Punj. 123):

"A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be "consent" as understood in law.

Consent, on the part of a woman as a defense to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent.

There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.

A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammeled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former

" As regards non examination of some witnesses, the apex court held that the same would not be fatal in light of the examination of the victim herself and her strength to withstand the grueling cross examination by the defense. The most crucial aspect of the case comes as regards the sentence. The Courts below had imposed a sentence of ten years alongwith a fine of Rs.10000 under Section 376 IPC.

The Hon'ble Supreme Court (Per Arijit Pasayat J.) expressed its wonder at the legislative wisdom saying: "In Sub-section (2) of Section 376, Clause (f) relates to physical age of a woman under 12 years of age. In such a case, sentence higher than that prescribed for one under Subsection (1) is provided for. But what happens in a case when the mental age of victim is not even 12 years of age?

Such a woman is definitely at more vulnerable situation. A rapist in such a case in addition to physical ravishment exploits her mental non-development and helplessness. The legislature would do well in prescribing higher minimum sentence in a case of this nature. The gravity of offence in such case is more serious than the enumerated categories indicated in Sub-section (2) of Section 376.

" This, in fact, is the highlight of the case where the judiciary has shared its concern for victims, who, because of their physical and mental deficiencies are unable to offer resistance but succumb to the inevitable. Other problems arise as well. The pre- requisites for establishing the offence of rape may be listed as follows:

1. Resistance from the part of the victim
2. Her shrieks and cries for help
3. Marks of injuries on body of victim as well as aggressor
4. Medical examination confirming the fact of rape which, unfortunately, is best in cases where the victim is a minor
5. Clear and Cogent Narration of the incident by the victim
6. Her conduct immediately after the incident
7. Delay, if any, in reporting the incident to police
8. Any other corroborating piece of evidence.

If the above are scrutinized carefully, all would agree that, in most cases, the pre-requisites would remain unfulfilled where the victim is a physically or mentally challenged girl. In fact, studies have shown that men prey on such imbeciles for easy and quick satisfaction of their lust, with little or no resistance and even less fear of apprehension.

One can well imagine that a blind girl would be in no position to identify her aggressor, or a deaf and dumb girl would be in no position to cry loudly or make a bold statement of her assault or a mentally challenged woman would not be able to explain the occurrence. These would definitely interfere in the process of dispensation of justice to the hapless victims of assault.

Concluding Remarks

Violence and disability operate hand in hand. In other words, condition of disability attracts violence and such people are prone to victimization in view of their incapacity to act or react in the situation.

The same is glaring in cases of sexual assaults, where incidents are pouring in from all parts of the country, of such atrocities being perpetrated on the weak and infirm. Criminal Law needs to take note of the situation and devise effective remedies to curb them.

At one level, while the laws on rape may include a new subsection in Section 376 (2) IPC, as regards rape of a disabled girl, whereby the punishment would be higher than the prescribed sentence, at the other level, strict proof of the incident should not be called for in matter of deciding convictions.

The writer does not intend to challenge the 'rule beyond reasonable doubt' developed in criminal law jurisprudence, but seeks applicability of the rational mind in deciding such matters where insistence of the set standards, mentioned above, would only defeat the cause of justice.

A sensitive and sympathetic judiciary, coupled with an equally conscientious legislature, is, after all, the best armor against all odds and impediments confronting the security, safety and serenity of the societal atmosphere.

References

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