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From: lheise@igc.apc.org
Newsgroups: hr.women
Date: 30 Nov 95 09:01 GMT
Subject: action alert: INDIA rape case
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YOUR HELP IS URGENT CONCERNING THE FOLLOWING:

On November 15, 1995 the judgment passed by District and Sessions Court (Jaipur) INDIA acquitted five men namely Gyarsa Gujar , Badri Gujar, Ram Sukh Gujar, Ram Karan Gujar and Shravan Panda of gang rape of Bhanwari Devi, a sathin working with the Women's Development Program of Rajasthan. The judgment reeks of prejudice and gender bias which have become characteristic of sexual offense cases.

Bhanwari Devi was engaged as a sathin (village level worker) in 1985 by the Women's Development Programme (WDP) administered by the State of Rajasthan. In 1992, Bhanwari Devi, at the instance of the State Government, was involved in a campaign against child marriage. Bhanwari was a critical part of this campaign and employed her skills as a WDP worker to intervene in the prevention of child marriages. As a result, Bhanwari and her husband, Mohan, met with threats, harassment and physical abuse at the instance of powerful elements in the village who objected to Bhanwari's role in the campaign. Despite informing the authorities of such harassment, nothing was done to

intervene on her behalf. As part of the anti-child marriage campaign, Bhanwari effectively intervened in preventing the marriage of the one year old daughter of Ram Karan Gujar (one of the accused.) As a result of her actions, Bhanwari was ultimately gang-raped by five men on the evening of September 9, 1992.

**There will be a national level meeting in India on 15 December to discuss the judgement and mobilize numbers. Condemn the judgement as retrograde and irresponsible! Put pressure on them! Write and fax the judge and ask him to intervene: Chief Justice of India c/o the Registrar, Supreme Court of India, New Delhi 110001. Fax: 91-11- 378-2595. The Jaipur team also needs funds for Bhanwari, even a dollar would be helpful. Send donations c/o SAKSHI, B-67 South Extension Part 1, First Floor, New Delhi, India 110049.

THE FOLLOWING IS A PRESS RELEASE CONCERNING THIS CASE IN MORE DETAIL. PLEASE READ IT AND INFORM YOUR FRIENDS AND ENEMIES!!

PRESS RELEASE

Rape trials continue to work against women because of traditional notions of morality and codes of conduct, completely minimizing a woman's vulnerability as well as her experience of violence. Despite a systematic campaign by the women's movement in India in the last 15 years, extensive debate within concerned groups, dialogue with the government and lobbying for legal reform, judgments are delivered on the basis of outmoded concepts of what amounts to rape, evidence procedures which are inherently flawed and procedural systems which totally ignore an Indian woman's reality. After years of struggling to change laws and attitudes which led to a denial of justice to Mathura, Sudha Goel, Suman Rani and Gunta Behn, the latest judgment delivered on Bhanwari Devi is just one more outrage against a woman's right to justice.

On. 15.11.95 the judgment passed by District and Sessions Court (Jaipur) acquitted five men namely Gyarsa Gujar , Badri Gujar, Ram Sukh Gujar, Ram Karan Gujar and Shravan Panda of gang rape of Bhanwari Devi, a sathin working with the Women's Development Program of Rajasthan. The judgment reeks of prejudice and gender bias which have become characteristic of sexual offense cases.

Bhanwari Devi was engaged as a sathin (village level worker) in 1985 by the Women's Development Programme (WDP) administered by the State of Rajasthan. In 1992, Bhanwari Devi, at the instance of the State Government, was involved in a campaign against child marriage. Bhanwari was a critical part of this campaign and employed her skills as a WDP worker to intervene in the prevention of child marriages. As a result, Bhanwari and her husband, Mohan, met with threats, harassment and physical abuse at the instance of powerful elements in the village who objected to Bhanwari's role in the campaign. Despite informing the authorities of such harassment, nothing was done to intervene on her behalf. As part of the anti-child marriage campaign, Bhanwari effectively intervened in preventing the marriage of the one year old daughter of Ram Karan Gujar (one of the accused.) As a result of her actions, Bhanwari was ultimately gang-raped by five men on the evening of 22.9.92.

This case has far reaching implications because it has also given birth to a writ in the Supreme Court seeking to enforce women's right to an environment free from sexual violence in the workplace, and which emphasizes women workers' vulnerability as agents of change. In particular, where the government employs women in hostile and traditional communities, the absence of a safety net leads to greater risks of sexual violence as was Bhanwari's experience when her work against child marriage resulted in her gang rape. Rather than acknowledge the occupational hazard and assume responsibility, the state left Bhanwari alone to battle out her case in a trial court, against the upper caste offenders whose clout and power was unequivocal in her community.

With support from women all over the country, concerned feminist lawyers, and the National Commission for Women, Bhanwari systematically faced the challenge of a rape trial in a legal system which stacks all odds against the victim. The judgment in keeping with traditional attitudes towards rape has violated the rights of the victim on several points. The basis for the acquittal is deeply disturbing- the Court did not believe that either Bhanwari or her husband were credible witnesses, and relied upon a series of highly problematic and factually incorrect assumptions about the nature of rape.

The following highlights from the judgment, reflects the spirit in which Bhanwari's violation and vulnerability has been dismissed and states the mockery made of women's rights under our existing law:

a) The case was unusual because Bhanwari had a witness in her husband Mohan. The judgment discredits his testimony by stating that 'in our society how can Indian husband whose role is to protect his wife, stand by and watch his wife be raped.' The fact that there were five offenders who assaulted Mohan (two of who were convicted of simple assault in the same judgment) has been conveniently side-stepped. In addition the Court in its understanding of the 'traditional husband' seems to think it quite normal that traditional husbands bring false allegations of gang rape on their wives before the public and to court.

b) Bhanwari's own testimony as a witness has been completely trivialized and dismissed even when the circumstantial evidence clearly underlined the growing hostility to her work, the open threats made to her by the offenders in the presence of witnesses and the actual occurrence of the rape subsequent to a police crackdown on child marriage against which Bhanwari was also campaigning.

c) Despite the Supreme Court's judgment which acknowledged the difficult access village women have to a medical investigation and therefore waived medical evidence as a critical factor in a rape trial, this judgment's whole attitude to the medical evidence is worth noting. Bhanwari's long and frustrating efforts to get a medical done in time was rife with procedural delays and red tape. At one stage, she was denied a medical check-up in the absence of a magistrate's order, which was only forthcoming after 48 hours. Even then her medical check up was only possible after 52 hours, which was sufficient to destroy critical medical evidence. Despite that, whatever was recorded in the medical and forensic report needed expert debate in court which the judge denied to Bhanwari's prosecution. Remarkably, the 52 hour delay and its bearing on the case has been totally ignored in present judgment. At most the Court has expressed disbelief at Bhanwari's fear of filing her case on the same evening at the police post which is five kms. away and states that 'in the absence of any threat from the rapists not to report the rape, her fear is wholly unnatural and unconvincing.'

d) The Court's comment on the offenders is also worthy of note. According to the judge the rapists are middle aged and therefore respectable citizens whilst rape is 'usually committed by teenagers.' In addition the judgment states that 'since the offenders were upper caste men and included a Brahmin, the rape could not have taken place because Bhanwari was from a lower caste,' The Court's comments are based on factually incorrect assumptions about rape which is unfortunately committed by men of all ages, caste, and class against women of all ages, caste and class.

e) In the present judgment reverse logic has been applied by giving more importance to an inaccurate assessment of circumstantial evidence while totally ignoring the substantive testimony of Bhanwari. This despite that the 1983 legal amendments to the law of rape were intended to give paramount benefit to a woman's testimony. This was particularly true in cases of rape in police custody, gang rape etc. given that in such cases, the inevitable absence of witnesses and the obvious power inequality would make it more intimidating for a victim to report her case and be believed.

f) Finally, and perhaps most disturbing, has been the Court's judgment on Bhanwari's credibility as a woman and as a witness. Unfortunately, the Court goes so far as to address Bhanwari Devil as a "liar" and further, to cast aspersions on her character by suggesting the presence of a third man i.e. in other words implying that Bhanwari Devil was an 'adulteress'.

The present judgment is an indictment of women's credibility especially when it comes to instances of sexual abuse. Not only has it reaffirmed outdated myths and concepts about rape and victims of rape, it has gone so far as to undermine the courage and responsibility women working within rural government programmes must assume.

We strongly feel that Bhanwari's plight is yet another instance in a chain of cases of sexual violence in which a pattern of prejudice and gender bias have taken precedence over the actual violation itself. As a movement we have grown weary of this pattern which has time and again denied us the justice we seek and further silenced those who would otherwise speak. As a first step to alter this pattern therefore, we urge that the following measures be undertaken:

i. Strictures be passed in cases where prejudice and gender bias against a victim's character in sexual offense cases becomes a factor in deciding such cases.

ii. The five men accused of gang rape of Bhanwari be punished.

iii. Proceedings in sexual offense cases be time bound i.e. including the time for deciding an appeal.

iv. Guidelines be established in sexual offense trials which will ensure a gender sensitive atmosphere and guard against prevailing myths and biases which prejudice women victims. To this extent the paramount importance of a victim's testimony must be unequivocally stressed.

Finally, the present judgment runs contrary to the commitment made by the Government of India when it ratified the U.N. Convention Against the Elimination of Discrimination of Women (CEDAW) in July 1993. The Convention has clearly acknowledged that violence against women is discrimination against women which violates women's basic human rights including the right to life with dignity, the right to liberty and security of person, and the right to equal protection of the law amongst others.

In the three years it has taken for the court to decide this matter, and despite the inevitability of its outcome, we wish to reiterate that Bhanwari has otherwise met with a different kind of justice through the Neerja Bhanot Award, her presence at the United Nations Fourth World Conference on Women in Beijing, and through the countless acknowledgments and support she has received both nationally and internationally in recognition of her courage and determination to bring the rapists to book. Against this background the court's judgment is viewed as just one more hurdle to overcome on the road to justice for the Indian woman.

Signed:

Forum on Violence Against Women (Jaipur); Sakshi; Action India; Sabla Sangh, Center for Feminist Legal Research;All India Democratic Women's Association; Nirantar; Jagori;Butterflies; MARG; Media Advocacy Group;Janwadi Mahila Samiti; Mediastorm Cooperative, Center for Social Research, Kali for Women .