Amidst everything that transpired in Hathras, right from the brutal rape of the 19-year old Dalit woman, her pre-dawn cremation, the harassment of the victim’s family and the lacklustre probe by the police, another intersectionality warrants a discussion which is that of the women with disabilities (WWDs) and their expedition of justice in the cases of sexual violence.
As per a 2018 report by the Human Rights Watch, WWDs are more vulnerable to sexual violence due to their bodily impairment which is compounded by an inaccessible criminal procedure. The invisibilisation of the WWDs is such that the NCRB (National Crime Research Bureau) does not even maintain separate data regarding the crimes against them.
A WWD is indefensible in the face-off with sexual violence as she cannot pre-empt any sexual advances. This particularly becomes a problem for women with visual impairment and psycho-social disabilities. Struggling to escape and raising an alarm becomes an arduous task due to various physical limitations. For women with psycho-social disabilities, assessing the existence and nature of sexual offence becomes onerous. Reporting the crime is another daunting task due to the associated stigma.
The fundamental problem with the laws pertaining to disabled persons and women is that the former does not account for the aspect of gender and the latter does not account for the aspect of disability.
A gender blind law on disability: The language of law has become more disabled-friendly after the passage of the Rights of Persons with Disability Act, 2016. Section 3 encapsulates the right to equality and prohibits discrimination on the basis of disability.
Furthermore, Section 13(2) recognises the right of persons with disability (PWD) to enjoy legal capacity on an equal footing with any able-bodied person. However, the law does not recognise women’s vulnerability to violence. Section 7 (1) exhorts the government to take requisite measures to protect “persons with disability from violence and abuse.”
The section also places a positive obligation on the government to take cognisance of such offences and provide legal remedies to the victims. This generic provision does not recognise the particularised experiences of WWDs. Furthermore, the RPWD rules of 2017 does not provide for any procedure or working plan to fulfil all the obligations placed on the government in Section 7 (1), thereby reducing the provision to a mere paper tiger. The legislation does not provide for any action plan to protect WWDs from sexual violence. This is how the laws on disability are gender blind.
A disability-blind law on sexual violence against women: There have been some changes in the substantive provisions of Indian Penal Code (IPC), Criminal Procedure Code (CrPC) and Protection of Children from Sexual Offences Act (POCSO). For instance, rape of a WWD counts as aggravated rape within the meaning of Section 376(2) (l) of the IPC. If someone indulges in penetrative sexual assault or sexual assault by “taking advantage of a child’s mental or physical disability”, they can be charged for aggravated penetrative sexual assault under Section 5(k), and aggravated sexual assault under Section 9(k), of the POCSO Act, respectively.
Recording statement
There have been some amendments to the procedural law to bolster the substantive law. For instance, Criminal Law Amendment Act, 2013 provides that whenever a WWD has allegedly been a victim of sexual violence, the magistrate ought to record her statement at her residence or other place that is convenient for her. The law mandates that the statement should also be videographed.
The POCSO 2012 also provides for the video recording of the statements of the child victim and further allows the usage of the video clip in the court, for purposes of chief examination. This is done to protect the victim from repeated interrogation in the courtrooms which can be extremely traumatising.
However, these procedural safeguards rarely contribute towards simplifying the victim’s expedition for justice. Filing complaints independently is challenging for the WWDs because not all states provide for online registration of FIRs and not all government websites are disabled-friendly.
Identification of the accused becomes particularly challenging when the victim has visual impairment or psycho-social disability. More often than not, the courts do not accord a lot of evidentiary value to the testimonies of the WWDs.
The police are generally not able to follow additional procedural requirements either due to lack of knowledge or due to lack of sensitisation. Many a times, the police do not specify the disability of the victim in the FIR, they are not able to assess the unique requirements of the victims and they do not provide for reasonable accommodation while recording statements of the victims in terms of taking assistance of the special educators and choosing a convenient place for the examination of the victim.
It is clear that a mere rights-based language of law cannot promise practical remedies, for actions certainly speak louder than words. Unless the law enforcement authorities do away with their inertia of ableism, we will just keep on witnessing the creation of more and more Hathras-like landscapes for temporary able-bodied women and women with disabilities.
(The writer is a student at NLSIU, Bengaluru)