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Published : September 28, 2015 | Author : vkewaliya4
Category : Criminal law | Total Views : 2338 | Rating :

VINI KEWALIYA B.A.LL.B(HONS.), LLM Advocate and Moot Court Trainer

Need of Gender Sensitization and Rehabilitation of Rape Victims

Gender Sensitization is a term which is talk of the day everywhere. It simply means creating awareness about gender equality concerns. Our Constitution framers were well aware about the neglected condition of woman in India so, in order to improve her status and dignity they have inserted special provisions for woman like under Article 15 (3) wherein State is empowered to make special provision for woman and children, Article 42 provides that maternity relief has to be given to a woman and other provisions of like nature. Further, extended interpretation of Article 21 by Maneka Gandhi Case opened the doors for woman to get her status and position safeguarded in society through Judiciary.

Right from the enactment of Constitution it is being questioned by patriarchal society that all such provisions are in contradiction to Article 14 where concept of equality is given. But, the various judicial pronouncements have negated such views and held that these provisions are inserted to achieve the object of securing social order and to eliminate the inequalities in status. In catena of cases courts have opined that a woman is a tender gender, a gender most molested by society and thus she needs special care, special treatment at some point of her life. Globally every institution of world has also accepted the notion that a woman is a gender with extra-ordinary potential and so, she needs special treatment.

Apart from such legal provisions Gender Sensitization has been developed as a way to reduce barriers to personal and social development created by sexism. Gender sensitivity is not about pitting women against men but to make a man feel that he should respect an individual irrespective of their gender. Gender Sensitization and Gender equality is a matter of everyday concern and today this concern is most required in Rape cases. When a woman is raped then she is not traumatized and molested at one instance but trauma that she suffered after rape is more horrible and life threatening then the moment of rape. Evil of Rape cannot be eradicated unless society understands the importance of modesty and chastity of woman but what can be reduced is second traumatization of Rape survivor.

We are heading towards the reformative penology of rape accused and at the same time we are required to focus on rehabilitative victimology. Criminal Law Amendment Act, 2013 have made more stringent penal provisions to punish a rape accused under Sections 376, 376A, 376B, 376C, 376D and 376E of Indian Penal Code but here an important concern is to focus on need of rehabilitation Laws for rape survivors. Although certain provisions has been inserted in Criminal Law which provides for compensation to Rape victims and monetary help for their treatment. It is pertinent to mention here that compensation to rape victims cannot be claimed as matter of right instead it is at the mercy of State.

Criminal Law Amendment Act, 2009 and 2013 have added Sections 357A, 357B and 357C in the Criminal Procedure Code.

Section 357A provides for Victim Compensation Scheme which provides that every State Government in co-operation with Central Government shall prepare a scheme for providing funds for purpose of compensation to the victims. Further on recommendation of court the District Legal Service Authority or State Legal Service Authority shall decide the quantum of compensation. This provision is general in nature because it applies to compensation to every victim irrespective of the nature of offence. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case. Section 357B simply states that the compensation in Section 357A is in addition to fine imposed on the offender. It is pertinent to mention here that the provisions relating to punishment for offences under criminal law have no bearing upon grant of ex-gratia monetary benefit to some of the victims. Section 357C provides for treatment of victims can be said as only special provision for Rape Victims.

In case of rape survivors, all hospitals whether public or private are required to provide first aid or medical treatment free of cost to the rape victim and also intimate the police officials about the incident of rape. Further, section 164A of the Code provides for medical examination of the rape victim and casts a statutory duty upon the police to send the woman making the complaint of rape to a registered medical practitioner within twenty four hours from the time of receiving information regarding the commission of such an offence. This is certainly a positive step towards treatment of raped woman but that is not sufficient to make her resettle in society infact a more responsible and positive outlook of society and legislature is required for her smoother rehabilitation.

The Government will have to formulate and implement policies in order to uplift the socio-economic conditions of women, sensitization of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women. No compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help in victims' rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. This compensation and medical treatment is viewed as more of sympathetic nature to a helpless and hopeless lady though this sympathy is shown in certain cases only depending upon discretion on State. We can say that patriarchal excesses and fear of stigmatization hinder a raped woman in articulating their concerns and redressing further sexual harassment after the accident of Rape. This fear of stigmatization also hinders a woman to ask for compensation. In recent judgments courts are more sensitized in giving compensation to Rape surviviors and have directed legal service authority to arrange and speed up mechanism of payments.

In case of Mohd. Haroon and others v Union of India and another gang rape was committed on women during communal riots and also some connivance was noticed during investigations by police officials in framing charges of Rape on accused due to political pressure. Very strict view was taken by the court and it was instructed to the police officers to understand the sensitivity of matter. Further, it was also ordered to pay compensation of Rs. 5 lakhs to each victim of Rape, in addition to various other benefits, by the State Government within a period of 4 weeks from the date of Judgment. In another case very important and interesting issue came up before the Supreme Court wherein a public interest litigation was field in Rajasthan High Court and it was put as a fact that during the period January 2004 to August, 2005, in 392 cases challans were presented relating to rape of minor girls. There 377 minor girls, did not get any relief or assistance from the Relief Fund, 13 were granted relief ranging from Rs.10,000 to 50,000. To the surprise of petitioner one victim was given Rs.3,95,000 on 11.8.2004 and another victim was given Rs.5,00,000 on 25.6.2005. Now the contention of the petitioner was that when minor girls who were also the victims of Rape, also belong to a weak and vulnerable group who are seldom in a position to seek relief personally. Petitioner pleaded that if at all the Chief Minister was of the view that monetary relief should be granted to such victims of heinous and depraved crimes then all similar victims of rape should be given monetary relief. According to him if there were 392 victims of rape, they should all be similarly treated and if some are given relief, others also should be given similar relief.

It is contended that when discretion vested in the Chief Minister in respect of the Relief Fund is exercised in a manner that 377 victims are ignored and 13 are paid amounts varying from Rs.10,000 to 50,000 and two victims alone are paid Rs.3,95,000 and Rs.5,00,000, it leads to inferences of arbitrariness and discrimination. It is a settled position that like other governmental resources or funds, the distribution or monetary relief under the Relief Fund should be equitable, non-discriminatory and non-arbitrary. Further, in the instant case it was contended that more compensation was given to two victims because of media focus on their cases. Apex court analyzed and discussed the need of rehabilitation scheme at length and stressed on the need that amount granted should therefore be reasonable, to meet the immediate need of coming out of the trauma/catastrophe. In this case Supreme Court accepted the fact that in those two cases situation and gravity of cases demanded high compensation but equality in proportion cannot be claimed as a matter of right. However, it was directed to the State Government include this category of compensation under Relief Fund Rules. In above two cases it is showed that compensation is a not a matter of right, furthermore, there is no yardstick to adjudge the quantum of compensation.

It cannot be ignored that compensation is an effective immediate help to the rape victims but cannot be treated as an effective tool for rehabilitation. Rape survivors may turn to a variety of services in their community for assistance such as the police, court and medical facilities. The responses of these services can deeply affect the rape survivor’s well-being and influence her ability to recover from the trauma. At one point of time she is facing the trauma of long proceedings of court and at other point she faces negative experiences at all such institutions. It is not wrong to say that all such experiences as her second rape or secondary victimization. Secondary trauma after rape accident happens usually due to stereotypic and insensitive manner used by medical and police personnel.

This traumatic sequence is further stretched by the society and her relatives. Even though it is punishable to publish the name of rape victim in any newspaper or otherwise but in society it cannot remain under curtain. When her story of rape goes public then it only brings risk of disbelief, scorn, shame, humiliation and refusals of help. There are many community based and Sate owned relief centers which are running to bring her out of traumatic situation but their personnel are also not well trained to provide her psychological and medical help under one roof. We are in need of more such well equipped centers that can understand the social responsibility towards rape victims in a more sensitized manner. Government is also required to frame specific rationale policies on compensation to every rape victim. Special vocational programmes needs to be started which can give training to persons who intend to do social service for this category of victims. There must be some penal provision for persons who are involved in giving secondary trauma to rape survivors or who make their further survival difficult in society. More volunteer counselors from society must come forward to give a helping hand to rape survivor.

# Maneka Gandhi v. Union of India, AIR 1978 SC 597
# 2014 Indlaw SC 213
# State of Rajasthan and others v Sanyam Lodha, 2011 Indlaw SC 677

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