Beneath the law: When the system inherently favors the rapist

By — October 22, 2012

Back in April, I wrote for WMC’s Women Under Siege about the legal gender imbalance female victims of sexualized violence face around the world. But a disturbing recent investigation by the independent Indian weekly newsmagazine Tehelka suggests that the miscarriage of justice in some cases of rape and sexual assault might be linked to prejudice on the part of those delivering justice, rather than bias within the law itself.  

Following a series of recent high-profile sexual assault cases in India, two undercover Tehelka reporters posed as research scholars to interview more than 30 police officers in the Delhi–National Capital Region about their attitudes towards rape. The results were startling. Tehelka reported:

Seventeen senior cops of over a dozen police stations across Gurgaon, Noida, Ghaziabad, and Faridabad were caught on spy camera blaming everything from fashionable or revealing clothes to having boyfriends to visiting pubs to consuming alcohol to working alongside men as the main reasons for instances of rape. … Even more shockingly, some of them are of the view that if a woman has consensual sex with one man, then she shouldn’t complain if his friends also join in. If a woman is doing late hours at the office then she had it coming… and the arguments keep coming.

Tehelka

One Delhi police inspector is reported to have told the journalists, “No rape can happen in Delhi without the girl’s provocation.” While these attitudes do not necessarily correlate directly to prosecution rates, the report suggests “this prejudice breeds a vicious cycle. It makes investigation slothful and lackadaisical and as a result the conviction rate in rape cases is appallingly low.”

Sadly, the picture this investigation paints is far from unusual around the world. The law in Sudan blurs the definition between rape and adultery by treating any sexual contact outside marriage as a crime, known as zina. Here, as in several other countries, the definition of zina as unlawful sexual intercourse or adultery leaves the fate of the victim to the discretion of the judge. According to a 2012 report by the independent Oslo-based foundation the Norwegian Peacebuilding Resource Center, “Both men and women can be penalized for zina according to the letter of the law, but research shows that in practice women are as a rule discriminated against when it comes to both the evidentiary rules in force and the application of the law.”  

A 2012 report by Human Rights Watch on the “Imprisonment of Women and Girls for ‘Moral Crimes’ in Afghanistan” describes similar injustices perpetrated against female victims of sexualized violence.

Here too, it is suggested that the attitudes and prejudices of those entrusted with enforcing the law help male perpetrators of sexualized violence abuse it to their own advantage. The report reveals that “when women and girls decide to leave because of abusive relationships and unhappiness,” male family members can control them by making false accusations of zina aided “by authorities too willing to accept their allegations at face value.”

“All too often,” the report concludes, “police comply with fathers or husbands.” Bias, HRW found, “is rife against women and girls at every stage of the justice system, with many officials enforcing unwritten social norms, rather than protecting women from abuse.”

The report analyzed almost three dozen cases and discovered that there was a common theme of judges allowing their own discretion to prevail in such rulings: “Judges issue decisions citing irrelevant information, such as a letter from a woman’s husband complaining of her disobedience and asking that she be punished, while offering no legal analysis or reasoning.”

In one case cited, “Tahmina J., 18, said she was raped. Instead of pursuing her allegations, the court’s decision warned that women should know that it is unsafe for them to go out at night, and said the victim must not have screamed very much or someone would have heard her.” She was convicted of zina and sentenced to two-and-a-half years in prison.

It is easy to be appalled by these instances of injustice against female victims of sexualized violence in Afghanistan or India—to consider them alien and shocking. Yet around the world, and perhaps closer to home, the cases pile up in which received prejudice and the bias of individual judgment lead to horribly similar stories.

A 15-year-old rape victim in a now infamous case of a child sexual exploitation ring in Rochdale, England, was known to police and had even appealed for help through her parents to the social services. But, she told reporters, “Social services told my Mum and Dad that I was a prostitute and it was a lifestyle choice and that because I was only six months off turning 16, they weren’t going to do anything.”  

In Ireland, a man convicted of sexual assault and sentenced to six years in prison in August had five-and-a-half years of his sentence suspended by a judge after he agreed to pay a considerable fine.  

In Brazil, Amnesty International reports the Supreme Court acquitted a man accused of raping three 12-year-old girls earlier this year on the basis that they were “sex workers,” despite Brazil’s penal code criminalizing sex with an individual under 14 years of age “under any circumstance.”  

In Tunisia, protests were held this month after a woman was allegedly raped by police, yet charged with indecency by the very officers accused of raping her.

In Morocco, the controversial interpretation of the law by individual judges has been heavily criticized since a 16-year-old girl committed suicide this year after being ordered by a court to marry her alleged rapist.  

It is too easy to think that changing laws will change the world. All we have to do is pick up a few newspapers to realize that the problem we face is even more insidious: Cultural attitudes and individual prejudices pervade the legal system at every level when it comes to women’s bodies and what can be done to them. We still have depths of misogyny to tackle before women around the world achieve the justice they deserve.