By Nisha Susan
For many women there comes that odd, jolting moment when you realize you have structured your life around avoiding being raped.
That moment sneaks up on you. Perhaps it’s because you caught yourself thinking twice about sitting down on the footpath. You were tired while waiting for the bus but you thought twice and continued standing, holding your heavy bag. And suddenly it occurred to you that you didn’t want to sit on the footpath because you didn’t want to attract attention, and you didn’t want to attract attention because you didn’t want to be raped. And in that moment the absurdity hit you. It’s as if you had been a man and every sentient particle of your life had been arranged around avoiding being mugged or murdered.
That moment sneaks up on you. The moment passes and you go back to unconsciously arranging your life around avoiding this one crime. Every time you hear footsteps behind you, every time you open your front door, every time you walk through a basement parking lot, every time you turn into a dark street, you wonder – Is this the one? Is this how it’s going to happen? As comedian Ever Mainard says, “The problem is that every woman has that one moment when you think, here’s my rape! This is it. OK, 11:47 pm, how old am I? 25? All right, here’s my rape! It’s like we wait for it, like, what took you so long?”
For some of us – for at least 24,923 documented Indian women in 2012 – there has come that other unfortunate, jolting moment when you have been raped.
Three out of four times, you are likely to have been raped by someone familiar, someone familial: your uncle comes to drop off a tiffin box and stays to chase you round the house, breaking everything you try to hide behind, pulling the landline wire out of the wall. Your brother-in-law tries to rape you when you are five months pregnant. Your former husband decides that divorce isn’t quite enough. The sarpanch of your village. Your nephew. Your brother’s friend. Your brother. Your father.
Here is your rape. It has come. And here comes that epiphany. The realization that you have been warned about this moment your whole life but still don’t know what you are supposed to do afterwards.
After December 16, after the gang rape in Delhi, parents across India have clutched harder at their restless daughters. Well-meaning men and women have recited the gruesome details of that gang rape to each other, asking, “Can you imagine anything worse?” Women talk to their friends about how much more scared they are of strangers. A warm fug of paranoia has enveloped us, binding us closer to the homes and neighbourhoods where we apparently need not fear anything.But here is that moment in that familiar place. You have been raped. Three years of paranoia later – are you kidding me, a lifetime of paranoia later – you still don’t know what you are supposed to do.
If you are the kind of person who thinks buying insurance is inviting death or illness, you may not want to read any further. Crippling your life with the fear of rape – you’ve got plenty of that already.
You may choose not to seek justice, to never report the crime, to not discuss it. But if you wish to make a recovery, if you intend to seek justice, if you want to punish the man or men who have raped you, the first 24 hours are the most crucial. Coping with that first day’s procedures will shape the way rape affects your life.
The First Hour
The very first and most difficult thing women face after sexual violence is the decision to report the incident. Nothing you ever hear in your life encourages you to report rape. Fight corruption, yes. File RTIs, yes. Even perhaps send complaints to a consumer court if you get a faulty TV. But when you’ve suffered what you’ve been always told is the greatest violence a woman can ever face, the voice doesn’t necessarily go off in your head urging you to make the culprit pay. Instinct, culture, pain, everything tells us to crawl into a cave and lick our wounds.
If we need to seek justice for rape, we need to be collectively rewired to report rape, and report it swiftly.
Rebecca John, a senior advocate at the Delhi High Court who has represented many rape survivors, says, “Most rape survivors feel that not reporting the incident is the better option. Knowing what she knows or has heard of the state of the law, the way the police and society treat women who report rape, makes them hesitant. As a consequence, important elements of the evidence required in the case often disappear.”
Despite how hard they know it will be, women all over India do report rape and brace themselves for the long, gruelling haul. But only a small minority face an apocalypse the way Bilkis did.
Bilkis Bano made history by winning the first conviction in a riot-related rape in post-independence India. In 2002, while fleeing the post-Godhra violence, Bano’s family was slaughtered by men from her village. Bano was 19 and five months pregnant. Her toddler was murdered in front of her. She was raped by three different men and left for dead. She woke up naked amidst her family’s corpses. She hid in the hills in the home of an Adivasi family and then, with gargantuan courage, the 19-year-old went to a police station. According to a 2008 Tehelka magazine report, the men of the Limkhed police station “threatened her, saying if she insisted on filing charges of rape the hospital authorities would administer her a ‘poisonous injection’ and kill her.” Bano refused to back down. She did not back down for six whole years – until the Mumbai Sessions Court convicted 13 of the 20 accused on charges of criminal conspiracy, rape and murder.
Bangalore-based lawyer Aarti Mundkur advises that “at this stage, if you haven’t already, it is a very good idea to find a friend or someone you trust to help you.” If the rapist is someone you know and you suspect has influence in the neighbourhood or village, it’s also helpful to reach out to someone from a local NGO or women’s group for support.
Should you go to a hospital or a police station first? For the crime that is supposed to ‘scar’ a woman forever, the physical evidence of rape is terribly ephemeral. Within an hour the evidence begins to disappear. In three days, most physical traces of the crime disappear.
To best preserve evidence, rape survivors should report the case without changing clothes, bathing, changing sanitary pads, eating, brushing teeth or urinating. Sure, many hours later several sources of important evidence may still exist, such as hairs and fibres, but DNA evidence is hardly ever used in investigations outside of Delhi and Bombay. Hence the urgency.
Says John, “Ideally, the woman should get her complaint registered, get the police to seize her unwashed outer clothes, unwashed underclothes and allow a doctor to examine her for the presence of injuries and spermatozoa without much delay. Most rape survivors instinctively rush to wash themselves, urinate and change their clothes, thereby unknowingly destroying vital evidence. It is a difficult call, but if you take your time to decide to prosecute it is likely that the medical evidence will be lost.”
So do you go to a hospital or the police station first? Different survivors choose differently. In the interests of a full recovery and in the interest of investigations, it is best to go to a hospital as soon as possible. Whether or not you decide to report a rape to the police, you need medical treatment first.
Our Bodies, Our Selves
Lawyers and activists describe incident after incident where rape survivors, even child survivors, were refused treatment by doctors. Under section 357-C of the Code of Criminal Procedure, all hospitals in India, whether public or private, are legally required to immediately provide first aid or medical treatment free of cost to rape survivors.
Beyond the external injuries visible to your eye, you need to be examined for concussions and internal injuries. Whether the doctor offers it or not (and most often the doctor will not), you also need to be tested for pregnancy, STIs and HIV-AIDS. Even doctors who frequently treat rape survivors don’t suggest these tests so it is up to you to seek them. Aarti Mundkur says, “It should be simple enough for doctors to at least have a leaflet indicating the health risks that a survivor faces, but usually I am the one who has to tell my clients to go for these crucial tests.”
Sangeeta Rege is a senior researcher at Mumbai-based NGO Centre for Enquiry into Health and Allied Themes (CEHAT), which has pushed for years to shift the focus of rape intervention towards the physical and psychological welfare of rape survivors. They have also fought against doctors trained in archaic, misogynist forensic medicine. And they have pushed for a uniform operating protocol for forensic examinations of rape survivors. (You can download CEHAT’s manual for medical examination of survivors of sexual assault here.) Currently these examinations are arbitrary, unscientific and horrifying invasive, as this Firstpost report explains.
A recent CEHAT report analysing its interventions in three Mumbai hospitals between 2008 and 2012 recounts the story of a 6-year-old who was sexually assaulted. At one hospital, she was examined and forensic samples were collected. She had injuries in her genitals. Her mother was informed that the child would be given no treatment. Nor was she referred elsewhere. Nor was her documentation shared. The mother took her child to a private clinic, where the doctors refused treatment because it was a case of sexual assault. She then went to a government hospital, which then referred her to another hospital, where they arrived at midnight and, finally, received treatment. Rege says, “The problem often is that doctors today treat the body of the rape survivor merely as a place for forensic evidence. They are too busy collaborating with the courts, the police and the Home Ministry to offer therapeutic care to the survivor.”
BN Jagadeesh, a Bangalore-based human rights advocate says more caustically, “Sometimes it seems to me that the police are more sensitive than doctors to the rape victim. The little I have seen of hospitals is quite bad. They do not provide the proper treatment, plus they are often hostile to victims. I was representing the victim of a gang rape recently and found that she just didn’t get any treatment. She had thorns stuck in her feet and she said so. But the doctor kept telling her that there was nothing.”
As Mundkur points out, “One of our problems at this stage is that survivors are sent to the busy gynaecology/obstetrics departments where there is a lot going on. Rape survivors should be pushed to the front of the line to see the gynaecologist and treated like any other emergency. Instead, they have to wait several hours during which time they get tired, more and more upset, and meanwhile the physical evidence is disappearing.”
Regardless of how slow and inefficient the collection of this evidence, the law does treat the body of the rape survivor as a crime scene. Here is the best example of that. If you do not report the case to the police but do seek medical treatment for rape (and women frequently do this), the doctor is required to inform the police of the incident. The doctor’s intimation is not a First Information Report (FIR). (A complaint cannot be lodged unless the survivor does so herself.) Here the law is imposing a duty on the doctor to report the incident, sometimes against the wishes of the rape survivor. Which can lead to cruel situations where doctors refuse treatment if the survivor insists that she doesn’t want the case reported.
Though Rege and others from CEHAT are celebrating the Criminal Law (Amendment) Bill 2013’s long-awaited expansion of the definition of rape – beyond penile vaginal penetration to include every form of non-consensual penetrative sexual acts by men on women – they have not paused for a break. Struggle abhi bhi jaari hai, as they used to say in the NBA protests.
Two Fingers and a Thousand Prejudices
On their own steam of ignorance and bolstered by an outdated medical education, doctors often sit in judgement of rape survivors. As if personal prejudices of class and gender are not bad enough, Indian doctors continue to learn forensic medicine from such popular tomes as Modi: A Textbook of Medical Jurisprudence and Toxicology which cautions doctors to beware of women and argues that it is very difficult to single-handedly rape a grown woman. Or take Krishnan’s Handbook of Forensic Medicine and Toxicology, which states that “as far as women from the low class [sic] is concerned, it is impossible to rape her because she is stronger.”
A recurring motif in the mythology around rape investigations in India is the two-finger test. Perhaps you’ve heard of it and the thought of it. Perhaps even reading about it in the news makes you want to cross your legs. Does it really exist? Yes, it does. The two-finger test is the jewel in the crown of misogyny.
Let us break it down for its patent stupidity. When a woman is raped and has summoned the courage to go to a hospital and then wait hours for a gynaecological examination, the doctor will frequently try to establish her veracity, her victimhood and her character by inserting two (hopefully) gloved fingers into her vagina. Do her vaginal muscles widen under pressure from these fingers? Then she is ‘habituated to sexual intercourse’.
At this moment you are probably asking: So what? You will have to follow the logic carefully. If your vaginal muscles are lax, then you are used to sex. If you are used to sex, then you a) shouldn’t be bothered by rape, b) are probably lying that you were raped, c) ought to have been raped, or d) all of the above.
Women’s groups have fought tooth and nail to get rid of the humiliating and ridiculous two-finger test. Forensic doctors like Bangalore-based Dr Jagdeesh Reddy have campaigned against it. The Verma Committee report recommended that it be discontinued during medical examinations. Unfortunately, there is no uniformity in the medical protocol followed by different hospitals in India and the two-finger test continues to be used by doctors. Sangeeta Rege adds in a voice resigned to the absurdity of the situation, “We now find that the medical fraternity have adapted swiftly and are [instead] using euphemisms like: “test to establish the elasticity of the vagina and the anus.”
The laxity of vaginal muscles or the absence of a hymen can prove nothing about your sexual history. Not even the most retrograde pulp fiction, romance novels or even that most imaginative of literature, porn, cling to this notion of ‘tightness’. However, the Indian medical community continues to labour under such medieval ideas about female anatomy.
If a doctor or nurse does deploy the two-finger test on you, do not let his or her ignorance intimidate you.
Rape survivors are also advised to return to a hospital for more extensive medical treatment as soon as they can. Some health professionals suggest that survivors should be admitted for 24-48 hours for observation.
Just as importantly, a survivor (or those close to her) should seek a trauma counsellor right away. Though rape counselling is not exactly thick on the ground in India, there are many more such services than before. Groups such as Majlis and Rahat in Mumbai, Swanchetan in Delhi, Tulir in Chennai and the one at at Vydehi Institute of Medical Sciences in Bangalore provide both immediate crisis intervention and long-term counselling.
For the Record
It is oddly comforting when lawyers across India tell you that the police display deep resistance to filing FIRs in all kinds of cases, not just rape. Mundkur feels there has been a slight but perceptible ease in filing FIRs since the uproar over the December 16 gang rape in Delhi last year, but also wonders aloud whether this is temporary.
Once an FIR is filed Jagannath’s Rath takes over, trampling any slacker policeman with accountability, demanding a daily diary of the investigation, demanding an arrest and the production of the suspect in front of a magistrate within 24 hours. So yes, getting the police to lodge your FIR is hard, and all the apocryphal stories of it taking hours and days are true.
If the police stall or refuse to lodge a FIR, one solution, particularly in the cities, is to call the police control room, tell them your location and ask for the mobile number of the ACP of the zone. This usually expedites FIRs, advise lawyers.
It helps to have someone around to help you collect your thoughts and rehearse your statement with before you record it at the station. And if you’ve grown up watching American TV, you might be convinced that you also need a lawyer. This is a good idea. It’s also your legal right. When you go to a police station you have the right to be legally represented. In the case of the Delhi Domestic Working Women’s Forum Versus Union of India (1994), the Supreme Court ruled that a rape survivor has the right to legal representation both inside a police station and later during trial.
Rebecca John adds, “Under the newly amended section 154 of the Code of Criminal Procedure, the police officer is obliged to record the statement of the rape survivor, if she is physically or mentally disabled, at her residence in the presence of an interpreter or special educator, as the case may be.”
A recent news report stated that all 35 police stations in Gurgaon have been assigned a female lawyer by the District Legal Services Authority – a first anywhere in the country – to ease the path of survivors of sexual assault. It will be interesting to see what this does for Gurgaon. Meanwhile, getting representation with any modicum of speed in a police station in most other places is a distant dream.
If you can, try to get a lawyer yourself. Though the lawyer eventually fighting the case will be the prosecutor assigned by the courts, and not your own lawyer, it will help you to have a lawyer at this stage as well as one who is hawk-eyed and alert on your behalf later.
However, Mundkur adds a note of warning here: “If the choice is between waiting several hours for a lawyer to help record your statement and fast-disappearing physical evidence, I’d advise the survivor to record her statement on her own. By the time the lawyer comes by there may not be any evidence to record.” This is particularly true if you have not had a medical examination yet.
New studies give us some convincing neurological explanations for why rape survivors seem like they didn’t resist the assault and why they are unable to give a clear, chronological account of the attack. Let’s focus on this second dilemma.
When a person remembers a violent, traumatic episode the brain’s prefrontal cortex stops working and the body is flooded with stress hormones. These stress hormones usually help to retain small pieces of sensory data. A piece in Slate quotes American police consultant Tom Tremblay who has used this aspect of recalling sensory details to improve the ways in which rape survivors can record their statements. Tremblay “remembers a case in which the survivor’s initial memory of her assault was cloudy, but when asked about sounds, she recalled hearing the assailant walking in her apartment. That triggered another memory of him talking on the phone to a car mechanic. She had enough details of the conversation to allow the police to find the mechanic, who confirmed that he spoke to the assailant.”
Unfortunately, few legal systems anywhere in the world are using the latest scientific knowledge to enhance their understanding of sexual assault. But knowing how our minds work after trauma proves to be useful for us – we who are constantly being warned about this ‘fate worse than death’. Remembering remains a key part of reporting rape.
Under the newly amended Indian law information provided by a female rape survivor shall be recorded as an FIR by a woman police officer, but who knows how this will actually pan out. For lodging the FIR you will be directed to the police station’s official writer, to whom you must describe your rape in as much detail as you can. You must give the date, the time and the place. Regardless of how terrifying it is to remember, you have to try and describe everything the perpetrator did to you. You have to give a full description of the location of the rape, including the address if you can. If it happened in a moving vehicle, describe the vehicle and its route as much as you can.
Even if you are not suffering the tremors of aftershock, in practice it is very difficult to spontaneously recount the incident to a policeman, a stranger in front of a typewriter or a computer who is barking questions or telling you to speed up or shut up or slow down. Thus, lawyers advise that it is best to write out a statement before going to the police station. If you can’t write it out at least try to gather your thoughts as much as possible beforehand. John warns, “The police tend to trim the survivor’s statement and either by design or otherwise, compel the survivor to omit vital details of the incident. You must try and record every detail you remember. Sometimes a case will turn on what the police will try and dismiss as an irrelevant detail.”
Let’s return to Bilkis Bano. On one night she lost her two sisters, her two brothers, her mother, her daughter, her uncle, her aunt and her in-laws. Days later, at the police station she found the police simply would not write what she was telling them. Bano has been quoted as saying, “I was frightened but I told them to write what I was narrating.” Instead, the police wrote a pure fabrication that 500 unidentified persons had attacked Bano’s family. The FIR did not name any of the people she identified as her attackers. This is the worst-case scenario.
Even in the best-case scenario, when the police writer takes down your statement there are chances of him adding, subtracting or changing the meaning of what you are recounting. If you cannot, for whatever reason, read what the police have written in your statement, you have the right to have it read back to you. And the right to have it translated for you if it is written in a language you don’t understand. Every lawyer will tell you to ensure the fullest, clearest statement you can muster. “Changing the statement later is very, very difficult and will damage your case,” says Mundkur. So, ignore their lamba ho raha hain and baad mein batao and carry on.
Next, if you know the rapist you should identify him by his name and his relationship to you. If you don’t know his name but you know where he lives or whose son he is, put that information in your statement. It will be taken into account. If you can give a clear physical description of the rapist, that can work surprisingly well too in terms of strengthening your case. As John says, “In a recent Supreme Court judgement the survivor identified the rapist as a wrestler, dark-coloured, with a mole on his right cheek. The clarity of her identification ensured he was convicted through the Sessions Court, the High Court and the Supreme Court.”
Priyanka Dubey, a journalist who is writing a book about sexual violence all over rural and small-town India, adds, “I have seen many powerful cases being lost because the victim frequently changed her statement. While it is natural to feel anxious, nervous, sad, hurt and disillusioned and so the statement may vary due to the emotional ups and downs, a rape survivor who wants justice needs to give a full, detailed statement and then stick to it. Even if you have to name your rapist a hundred times, say it a hundred times and don’t let them shake you.”
No, You Didn’t Ask For It
Very often the police and defence lawyers like to ask why the woman did not shout for help – implying as they often do that it wasn’t rape, it was consensual.
New research also explains why it may seem to the police or the courts that a rape survivor just didn’t resist enough. In retrospect, sometimes it can seem like that even to the survivors themselves. Survivors often experience what is called ‘tonic immobility’ – the less discussed but common alternative to ‘fight or flight’ – also known as ‘the freeze instinct’. In conditions of extreme fear any of us may feel paralysed, limp, unable to move, cold. These memories make survivors blame themselves while other people jump in to blame them for ‘not fighting back’, but this is an innate biological response to predators.
Perhaps you didn’t shout for help. Perhaps fear silenced you. Perhaps you didn’t run away. It was still rape.
But since you cannot quote neurological findings in your local thana, you must prepare yourself for this question while lodging your FIR. John says it’s important to remember, “submission is not consent. Section 375 of the Indian Penal Code has extended the scope of the offence of rape to cases where a survivor’s consent has been obtained by putting her through fear of death or hurt, or if her consent was given by reason of unsoundness of mind, intoxication etc. When the survivor is under 18 years of age, her consent is of no consequence.”
Consent has been defined in the Penal Code as ‘an unequivocal voluntary agreement, when the woman by words, gestures or any form of verbal or non verbal communication, communicates her willingness to participate in the specific sexual act.’ This means that in your statement you must insist on including the reasons for your submission: you were at knife-point, you were the only person in a building, you were gagged, he was threatening to pour acid on you, throw you out of a moving vehicle, and so forth.
After the FIR is recorded, the law requires the police to arrange a medical examination for the rape survivor if it hasn’t already happened. The police have to arrest the perpetrator if he has been identified. Then, the police must organise a medical examination of the suspected rapist. A medical examination could discover scratch marks or other injuries on the perpetrator and establish a struggle between him and the survivor. This can also be supremely valuable evidence in court.
The police will also begin investigation of the crime scene at this stage. If you do have a lawyer s/he must watch these proceedings carefully and ensure the police seals any evidence they find and not render them unusable in a court of law with shoddy handling.
Don’t Get Mad. Get Even
It is the certitude that they will only be blamed and punished further that weakens women as they struggle through the police and legal systems. And then there are the less than impressive convictions: the conviction rate in India stands at about 26 per cent of rape cases that go to court [vs. 40 per cent in the UK]. But even this faint confidence that they will get justice makes women run the gauntlet of reporting rape.
However, the Supreme Court has consistently ruled that “the uncorroborated evidence of the prosecutrix is sufficient for a conviction.” This takes a moment to unpack: you have excellent chances of winning a conviction for rape if you are unshaken in your testimony, unshaken by everything you’re put through in those first 24 hours, unshaken by the days that follow.
You have excellent chances of winning a conviction if you believe that rape is not the end of your life.
A version of this piece first appeared in Yahoo! Originals.
Photo credits: Crossroad by Kent Nguyen, Flickr, CC by 2.0 & Images Through a Bus Window #4: Time, Text and braid by Wayne S Grazio, Flickr, CC by 2.0