Does Hiding Identity of Rape Victims Actually Help?
A woman’s dignity has been a fragile concept. It is subject to weak parameters of judgement that hold her responsible for epitomizing as well as shielding it, irrespective of the situation. A woman’s shame associated with being a victim of sexual harassment, molestation or in worst cases rape is not so much a question of her lost self-respect as it is about the general attitude of the society towards her. Since the issue is so delicate, its treatment also needs to be sensitive. Several intellectuals, like Ms Naomi Wolf, have debated on the issue of treating rape victims, given the nature of the social outlooks. Naturally, most of them believe that it is best to keep the identity of rape victims anonymous to protect the standing of the woman in the ‘biased society’. However, some like Ms Wolf believe that “…despite its good intentions, providing anonymity in sex-crime cases is extremely harmful to women”. [1]
The debate perhaps is endless. However the essay hopes to evaluate these contradictory concepts in the light of its effect on the victim’s life, the judicial, social and administrative structures and as weapon in the present war scenarios. The article hopes to deliberate on the idea that maybe anonymity should be restricted to being the victims’ own call.
Let us deal with certain important questions here – In how many such cases, have the accused been prosecuted? Moreover, how many cases are actually recorded and what percent of the recorded cases are false accusations? These key questions probe the nature of such cases and minutely look at the relative position of the victim against that of the accused. Activists for the anti-rape campaign in USA allege that there is a petty “…6.5% conviction rate for rape…” The activists stressed on the importance of understanding the irony behind the fact that almost 94% of such cases are not convicted. As opposed to this, the number of false allegations is an extremely low percentage[2]. Looking at the statistics it becomes clear that the administrative support to the victims has been low and therefore any justice to them is a far cry for most.
For a moment consider the dilemma of debating on the issue of how rape victims must be treated, in a scenario where the society looks down upon them and the administration does not work hard enough to make things any easier. The question of anonymity or disclosure is not really the core crux of the issue. Ms. Wolf in her article sites, “Why Rape is different?” states examples where anonymity kills a possible case, thereby reducing chances of the guilty being caught. Talking about her own university she said, “My alma mater, Yale, used anonymity in reporting of sex harassment and rape to sweep sex-crime incidents and repeat offenders’ records under the rug for two decades, thereby protecting its own interest in preventing systematic investigation. Because of the prevalence of universities’ anonymity policy, at least two alleged serial rapists – whose assaults were reported to their employers separately by more than one victim – are teaching at new universities, with no charges ever brought against them.”[3] As strong as that example is that is just one side of the story in a particular kind of social structure. Based on these arguments, the concept of anonymity can certainly not be proved to be applicable universally.
Let us shift from the west to the east. In India, several cases like that of Ruchika Girhotra (SPS Rathoe v. CBI) and Priyadarshini Mattoo (State (through CBI) v. Santosh Kumar Singh[4]) have been hounded by the media for days, in-fact years. The cases were publicised and every possible detail was published all over tabloids and talked about in prime time news. However, in Mattoo’s case justice was delayed as ever and in Ruchika’s case it took the courts, the media and her death, together, nineteen years to even convict the main accused and that too for six months and a compensation of Rs 1000. The judgement was a disgrace to the sanctity of the courts as temples of justice. Many of such cases force us to question, if the concept of disclosing the identity of the victim in public is any good. Ms Wolf’s own example (Ms Hill versus Clarence Thomas, 1991) in support of disclosure, fails where she accepts that the accused is not convicted and ironically, rises in hierarchy to become the US Supreme Court Justice.
The other important side to this argument is that, anonymity is a very media specific concept. On judicial grounds the case registers every aspect of the issue, obviously including the identity of the victim and the accused. Therefore, perhaps the major concern is not so much of representation and self-respect in being able to represent oneself in a court case; it is more about the public response on being publicized. Rape is a serious offense that apart from anything else destroys the morale of the victim and is the only crime where there will be more people to accuse the victim than the accused. Considering this, it does not seem sensitive to force disclosure upon the victims.
The other important issue here is the relative position of the victim and the accused in terms of their power and position. In most cases the victim has no bargaining space. If the accused’s position is compromised due to the publicity of the case, there is no guaranteeing that it will favour the case proceedings. It may infact go against the victim, as it may push the accused to go to any lengths to avoid mal-publicity. The accused may exert social pressures on the victim and her family that may make it even more difficult to survive in the society. The media these days, unfortunately, is more business oriented that public oriented. The sensitivity of the issue is given no concern whatsoever as long as it brings publicity to the news channel. In this bargain, the victim of rape is left humiliated, dejected and her image, scarred.
As mentioned before the treatment of rape is subject to the respective societal norms. Where the western societies have short memory span and tend to forget such things as time passes, the traditional societies like that of India, have an undying memory which ultimately becomes a lifelong stigma for the victim. Empowering rape victims to give them courage to stand up for themselves is a noble thought. But in societies like India’s the traditional norms are so deep rooted that it is not possible to over-rule them. So far we have not seen too many cases where the accused was awarded a sentence that befitted his abysmal crime. However, every moment on the tabloids and on the news channels is fresh humiliation for the victims. They are ridiculed through-out the process of fighting for justice.
The social constrains are so tightly wound around its members that it is difficult to find a way out. When we stress for humanity in an effort to “empower” women, we forget that this disclosure could make them a public joke for a very long period. The stigma associated with this could paralyze the lives of the victims and their families. There may never be a recovery route away from this trauma in the society. The girl may never get married again. She may never find a new place in the society.
The thing about our society is that it has more sympathy for the deceased than for the alive. Till a victim is alive, he is also abused verbally and psychologically by the public. Once the victim dies, perhaps the sympathy might speeden the process of justice in a case. This irony and the thought of avoiding any further humiliation and of course in most cases, protecting the family against any further harm, forces victims to suicide, as in Ruchika’s case.
Perhaps, this needs due cognizance that as long as there is some protection guaranteed to the identity of the victim, more victims take up the courage to come forward and register their cases. There is no end of ways in which increasing the odds against already victimized people can be portrayed as good for them — look at the debates around welfare and affirmative action. The best way to help real life rape victims is to make it easier for them to report attacks against them, so that the perpetrators can be brought to justice and prevented from harming others. If what women see all around them is that those who come forward have their lives shredded and their reputations, thanks to the Internet, forever linked to their most traumatic experience, they will decide, in even greater numbers than now, that coming forward just isn't worth it. Right now, nothing prevents rape complainants from outing themselves, and some have done so. More power to them. But extraordinary heroism should not be forced on people, especially if the result is more silence for victims, more impunity for perpetrators. [5]
The Indian Penal Code under Section 228A and CrPC under Section 327(3) specify bars on publication of Court Proceedings or revelation of identity of victims of certain offences, including rape. Some case laws have furthered this initiative through the judgements given by the Court. For instance, Dinesh Buddha v. State of Rajasthan[6]. In this case, the facts were as follows : On 5.2.1998 the victim had gone to witness a marriage procession in the night. When she was coming back to her house in the night at about 12 O' clock the accused sexually assaulted her. She was threatened that if she disclosed about the incident to anybody, she would be killed. Suffering from the acute pain the victim told her sister, mother and grandmother about the incident. The matter was reported to the police. The accused person was arrested; medical tests were conducted both in respect of the accused and the victim, and after completion of investigation charge sheet was filed. The Trial Court found the accused guilty of the offences charged.
The Supreme Court gave the following opinion “Keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as 'victim' in the judgment”
There is another aspect to this abysmal crime. What used to be just a criminal offense has now become an accepted weapon of war in the increasingly ‘uncivilized society’. Consider Bosnian war against Serbia. The Institute for War and Peace reporting covered the horrifying condition of women in Bosnia as result of the war. Their report mentions an account of the European delegations encounter with a rape victim, one among many others waiting to be heard and given justice. The vivid account of her story made the delegation go numb, such that they could not muster enough courage to probe further into the filth of the matter. The delegation suggested that there were about 20,000 women who had been sexually assaulted during the course of the war, but the women claim that there about 60,000 of them. Ironically, here the victims mustered enough courage to stand up for themselves however the authorities could not muster enough courage to stand for them.
However, the existence of international law prohibiting rape did not prevent the act itself and the legal system remained slow to bring wartime rapists to justice. Many analysts believe taboos kept the issue from being confronted directly. However, the existence of international law prohibiting rape did not prevent the act itself and the legal system remained slow to bring wartime rapists to justice. Many analysts believe taboos kept the issue from being confronted directly. Unfortunately, the increasing forthrightness of international law on rape did not translate into increased enforcement. But while significant strides have been taken in recognizing rape as a war crime, the actual number of convictions secured is very small. [7]
This is yet another example where disclosure did nothing to help. If disclosure was the answer, then what about the huge percentage of incestuous rapes, in countries like India, Australia etc.? These cases are often the most horrifying. The victim loses support from not just the society but also her family. In several cases, the victim will never disclose the case out of fear, out of being bound to a joint family system, or out of protecting the honour of the family. The reasons could be many but the result is that most of these cases never reach the courts and remain unheard. Here anonymity is, unfortunately, not an option, it is a forced norm. In most of these cases the people in the society kill not just the victimizer but also the victim to avoid shame. This has been a prevalent practise, a shade of the infamous honour killing.
As many cases as the paper discusses, it brings out the different shades of the cases of sexual assault and rape. In every case it is obvious that anonymity or disclosure is not a factor above judicial pro-activism or administrative agility. As long as these agents continue to fail, the rights of these victims also fail.
After discussing several cases, the paper continues to believe that more harm than good would come from routinely naming rape victims. It's a violent crime of a very personal nature and that puts its victims in a class by themselves. State of affairs today. [8]Perhaps in a system where all accusers are equipped with the legal literacy to demand their rights from the criminal justice system and are provided with adequate support during the proceedings, they would feel brave enough to choose to make their identity known.
[1] Wolf, Naomi. (2010, December 31). “Why is rape different” Project Syndicate
[2] Jones, Sam. (2010, May 20). Rape case anonymity for defendants would be insult to victims, say activists. Guardian, Retrieved from http://www.guardian.co.uk/society/2010/may/20/women-against-rape-anonymity-defendants
[3] Wolf, Naomi. (2010, December 31). “Why is rape different” Project Syndicate
[4] 2007 CriLJ 964
[5] Pollitt, Katha. (2011, January 10). Naomi wolf: wrong again on rape. The Nation Institute, Retrieved from http://www.nationinstitute.org/featuredwork/fellows/1233/naomi_wolf:_wrong_again_on_rape/
[6] 2005 CriLJ 1452
[7] International Justice - ICTY, By IWPR staff. (2011, February 15). “International justice failing rape victims.” Institue of War and Peace Reporting, Retrieved from http://iwpr.net/report-news/international-justice-failing-rape-victims
[8] Thorpe, Jennifer. (2011, February 10). Anonymity a rape survivor's right. Mail&Gaurdian.com, Retrieved from http://mg.co.za/article/2011-02-07-anonymity-a-rape-survivors-right/
"Loved reading this piece by jayati?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"
Tags :Criminal Law
