This post examines a petition made to the Indian Supreme Court by a rape victim’s mother. The petitioner avers that her daughter’s case should be tried in a court set up to prosecute sexual offences against children because even though the victim is 38 years old, her mental age is that of a three-year-old. It is therefore contended that she qualifies as a ‘child’ under the Protection of Children from Sexual Offences Act 2012 (POCSO).
The petition was made because of the extensive procedural protections available to child victims under POCSO. Inter alia, POCSO provides that: the police must automatically make provisions to protect the child if needed (s 19(5)); the victim’s statement to the police must be videographed where possible (s 26(4)); in case of disabled victims, a special educator may be allowed to assist with the recording of the statement before (s 26(3)) or during (s 38(2)) trial proceedings; and tele-link technology can be used to record the victim’s testimony (s 36(2)). However, POCSO only deals with sexual offences against those who are under 18 years old (S 2(1)(d)).
Although not on the basis of mental age, demands have also been made in the past by disability rights activists to make some POCSO provisions applicable to disabled adult victims of sexual assault. There are various strategic reasons for supporting the arguments in the petition. For example, it is reported that the victim’s pre-trial statement was not recorded verbatim. Her testimony was not videographed to capture significant non-verbal communications. With great effort, the victim was allowed to testify through tele-link. Her doctor translated her description of the incident, but the testimony was rejected since the spoken words were childlike, and unacceptable given her chronological age of 38 years. The victim and her mother were also repeatedly threatened by the accused. Under POCSO, these issues may not have arisen.
Further, while the petition deals primarily with procedure, the implications of its success could be far-reaching. For example, if the petition passes, a harmonious interpretation of the statute would require that all POCSO provisions be applied to victims of the relevant mental age, including the reversal of the presumption of innocence for some or all elements of POCSO offences (ss 29, 30).
Success of the petition could also challenge the heteronormative assumptions of the Indian law on sexual assault. It would lead to criminalisation of sexual assaults against a limited subcategory of (disabled) adult men, even though male victims are currently not covered by India’s rape legislation (S 375 of the Indian Penal Code 1860 (IPC)). S 375 defines rape as an offence committed by men against women. It also excludes intersex or gender queer persons from protection (see s 10 IPC) in spite of the State’s duty to safeguard the rights of the ‘third gender.’ Moreover, S 375 does not cover penetrative sexual assault within homosexual relationships. In fact, the IPC criminalises even consenting same-sex sexual relationships. While comprehensive victimisation surveys have not been conducted in India, the experience of other jurisdictions indicates that female-on-male rape is rare. Even so, such cases are possible in situations of clear power asymmetries, most infamously proved at Abu Ghraib. Interestingly, disability rights activists have pointed out that a gender neutral rape offence could be used to persecute disabled women because of the prevalent stereotypical understanding that disabled women lack control over their sexual urges.
It is also worth reflecting on whether the success of this petition will perpetuate damaging stereotypes of disabled people who are infantilised as ‘permanently weak, childlike, suffering and needy—no matter how autonomous they might actually be’. Further, it is worth pausing to consider how mental age will be determined, and whether ‘the hidden assumptions and violences of … medical–bureaucratic formations’ will create a new process to traumatise disabled women. For similar reasons, Dhanda recommends tackling ableist trial procedures through discrimination law. Given that the guarantees to equality (Article 14) and non-discrimination (Article 15) are already entrenched in the Indian Constitution, this route seems to be a better alternative. In any case, the petition has brought out in a very jarring way that we have a long way to go to achieve a truly intersectional understanding of rape victims’ needs.