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'You have not placed the child in the middle'

Thursday, May 03, 2018
Photographs by Trupti Arekar

Flavia Agnes was a victim of domestic violence at the age of 20 when she was just a Class X pass-out and broke free from her violent marriage, 13 years later. The story of the 71-year-old, today a prominent women’s rights lawyer, activist and author, is an inspiration to many. Her organisation Majlis helps survivors of domestic and sexual violence access justice. Speaking to Bhavna Uchil, Agnes, a strong critic of the death penalty, voices her concerns over the recent ordinance which provides for stringent punishments of upto 20 years imprisonment and death for rape of children below 12 years of age

There are already laws that provide for death penalty in rape cases such as when the accused is a repeat offender or the rape results in murder or the victim being in a vegetative state. Was this ordinance needed?
There was no need. We make laws more stringent, more cases are being reported, but where are convictions happening?

You have been a staunch critic of the death penalty. With regard to this ordinance which provides for death penalty for rape of girls below 12 years, what are your views?
Death penalty is a problem per se. Earlier, there used to be public hanging, public castrating. Death penalty comes in that category. Is that the notion of justice for us? It’s medieval.

The government claims they are doing it for 'effective deterrence'. Your views.
When these lumpen elements are raping, are they consulting lawyers, asking for punishment and then doing it? From 1983, there has always been a call for stringent punishment, women’s organisations are also responsible for this. But if we go by the number of cases reported, there is no deterrent value.

This ordinance has come in the wake of the Kathua and Unnao rapes. You have blamed aggressive Hindu nationalism for the Kathua rape, that it was a hate crime more than a gender crime.
Even the stabbing of the 16-year-old boy Junaid in a train was due to aggressive Hindu nationalism. That was no less than this. These are the issues that need to be addressed and the government is not doing that. They want aggressive Hindu nationalism to go on.

What will be consequence of this ordinance on children?
There are a large number of cases where a close family member like a father or stepfather are involved. The mother is either dead or deserted. The girl is dependent on the father. While she wants the father to be punished, she does not want him to be hanged. Also there is family pressure when such stringent punishment is involved. Over  time, the child may also develop a feeling of guilt. So will children report such crimes now that the punishment has been made so stringent? In the case of stranger rapes, if the punishment for rape and for rape and murder is the same, whoever commits rape will now murder. Now cases may come down, not because death penalty is a deterrent, it is a deterrent for the victim to report the incident. So in either case, the ordinance does not work out. It is not at all well-thought out.

A study conducted by RAHAT programme of Majlis had found that in case of sexual violence, girls in the age group of 11 and 18 are most vulnerable. There is a tendency not to believe them in court. There are low convictions in these cases. What is the use then of stringent punishment for the upto 12 years age group, when there is a high conviction rate already?
In the 11 and 18 age group, most acquittals happen, since there is tendency to think that the girl may be in a relationship and is sexually active. So now you have put these girls at greater risk by categorising, we now have four categories, under 12, under 16, under 18 and above 18.

What really needs to be done?
There is a whole list. Children of sexual assault need to be taken out of slums and given protected care. All shelter homes are in doldrums and government-run ones are in a pathetic condition. Child welfare committees are not functioning, except in big cities. There must be a victim compensation programme, not at the end of the trial but at the beginning. Not that only if there is a trial and conviction there will be compensation. When the survivor of sexual assault is pregnant for instance, she needs money for tests and to be admitted. What if the girl has contracted HIV? They are not bothered about these. After sexual assault, a child cannot go to the same school or live in the same area because of the stigma. She has to be relocated. Many times they are sent off to their village and married off, hiding the incident. Firstly, they are poor and vulnerable or school drop outs. The process is supposed to empower her and bring her up. It pushes her down. The court process takes two to three years. By that time, the family no longer wants to come to court or give evidence. You have not placed the child in the middle. When you say you want to protect the children, you have to think of all the situations around her, right from school, neighbourhood and sex education.

Are the two-months time frame for finishing investigation, another two months for finishing trial, practical, especially when the punishments are so stringent?
Just check the backlog. There are such a large number of cases pending for so many years. In each case, at least 12 people’s evidence are recorded, from the complainant to the senior inspector to the panchnama, medical, forensic and so on. It is not the victim and her mother alone. Increasing the number of courts is not going to solve the problem, because the process itself takes so long. On an average, it takes two to three years. No due diligence has been done on these matters.

How does one dissent when they are labelled as being pro-rapist if they are against death penalty?
Since the Kathua rape is seen as a gender crime, anyone who argues against the ordinance with such stringent punishment, will be called pro-rapist, that you want these things to happen. It is like when I opposed criminalisation of triple talaq, I am accused of supporting it.

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