Criminal justice system & young girls/women with disabilities – My Take by Shampa Sengupta
Our guest column is by disability rights activist Shampa Sengupta, who takes an in depth look at why, despite adequate laws, the criminal justice system repeatedly fails girls and women with disabilities. .
Indian laws, namely the Juvenile Justice (JJ) Act and Protection of Children from Sexual Offences (POCSO) Act have separate sections on children with disabilities. Both are gender neutral, the only criterion is the person has to under the age of 18. The 2013 Criminal Law Amendment Act (CLAA) also has sections on disability, so both young girls and women are covered legally.
However, when one looks at their implementation, the picture is dismal. This is because disability law is not a mandatory part of the training program for the police, lawyers and courts – the primary institutions of the criminal justice system. Systems in courts are not disabled-friendly either, which means people with disabilities face physical and attitudinal barriers within the judiciary system. The problem increases for women due to the patriarchal mindset.
In 2012, after the Delhi gangrape case, also known as the Nirbhaya case, the government formed the Justice Verma Committee after public pressure. This gave the disability movement the first opportunity to address specific concerns of women with disabilities in policy. We presented this to the committee and the suggestions were used in POCSO as a model. As a result, the CLAA Act included several clauses addressing disabilities, similar to POCSO.
Why the laws fail
Moreover, the Rights of Persons with Disabilities (RPWD) Act of 2016 also contains specific clauses regarding protection from abuse, torture and sexual violence. However, when it comes to implementation, there is lack of knowledge and poor execution.
Take POCSO. As activists working on the ground level we find there’s barely an implementation of the Act when it comes to disabled children. In some states, child friendly POCSO courts have been set up but most of them are not on the ground floor, so access for children with mobility issues is a problem. In West Bengal, even the office of the Child Rights Commission is not accessible. When this was pointed out, the chairperson said making changes to the building structure was not possible as the space was rented.
Moreover, POCSO says courts must have special educators or people familiar with the manner of communicating with a child, or an expert to record evidence. There should be sign language interpreters who can be called in at a moment’s notice. Most states fail on this count. Lack of knowledge and poor attitude of professionals working for disabled children is a problem too. At a workshop, many special educators confided that they do not want to take up such duties when called upon by the police. Besides, the training does not include essential components of sexuality education. So they were both unwilling and ill equipped.
When it comes to disabled women, the law gives them the “right to record their statement with police in the safety of their home or a place of their choice. This would bring great relief to any disabled women who faces sexual violence. However, till date, we have not found this being implemented in any state. In the case of a 19-year-old rape survivor with multiple disabilities in Hooghly district, West Bengal, we found that the police not only forced the her to visit the station to record the complaint, but made her sit there all night. Her mother was also detained. When we asked the police why, the explanation was they were detained to be sheltered from the rapists.
It is beyond our understanding why a disabled young woman and her mother have to stay at the police station all night if they go to report a case of sexual abuse. Leave alone this case, we have not found a single case when the police visited a woman’s home to take her testimonials. This is because most police officials have no idea about the law and there are not enough personnel, especially women, to look into rape cases.
Conclusion & Recommendations
Our recommendations for governments for States and Centre is:
- Implement laws and policies to protect rights in cases of sexual violence against women and girls with disabilities.
- Ensure police, judicial and medical officers and judges receive adequate training. Police and the courts should have access to special educators who can identify disability accurately and provide support.
- Adopt and implement the Ministry of Health and Family Welfare guidelines and protocols for medico-legal care for survivors/victims of sexual violence across all states and jurisdictions. Ensure medical professionals are trained in accordance with these guidelines.
- Collect and disaggregate data on sexual and gender-based violence on the basis of disability and age to ensure adequate services and inform government policies to better address needs.
- Set up a uniform scheme across all states to provide compensation to survivors of sexual violence, including disabled women and girls.