tag:theconversation.com,2011:/us/topics/delhi-rape-case-4620/articlesDelhi rape case – The Conversation2019-05-15T12:05:57Ztag:theconversation.com,2011:article/1143812019-05-15T12:05:57Z2019-05-15T12:05:57ZHow to tackle India’s sexual violence epidemic – it starts with sex education<figure><img src="https://images.theconversation.com/files/274656/original/file-20190515-60537-ddj24n.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4288%2C2843&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>“Do you masturbate?”, “When did you first have sexual intercourse?”, “Did you ask for consent?” These are just some of the taboo-breaking questions I asked convicted rapists in a Delhi prison during interviews for my <a href="https://arro.anglia.ac.uk/700144/">research</a>.</p>
<p>Most of these men did not understand what consent meant or that it needed to be sought. Their stories also highlighted a sense of entitlement and ownership over the victim. I was not particularly surprised by their discomfort and lack of awareness. I myself had never received any form of sex education at home or at school while growing up in India.</p>
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<a href="https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/273778/original/file-20190510-183083-15pifb4.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Delhi Prison, Tihar, where I carried out my research.</span>
<span class="attribution"><span class="license">Author provided</span></span>
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<p>Soon after the <a href="https://www.theguardian.com/society/2017/dec/03/five-years-after-gang-murder-jyoti-singh-how-has-delhi-changed">2012 Delhi gang-rape</a>, <a href="https://secure.avaaz.org/page/en/">Avaaz Foundation</a>, a US-based non-profit organisation, gathered over 1.1m signatures on their online petition to start an extensive public education programme to dispel traditional cultural attitudes towards women. In their 2013 <a href="https://avaazmedia.s3.amazonaws.com/AVAAZ_How%20to%20cure%20India%27s%20Rape%20Epidemic.pdf">report</a>, which looked at how to tackle India’s rape epidemic through education, they even set out a four-step public education campaign for changing sexist attitudes. </p>
<p>Since then, several public awareness campaigns on recognising and reporting violence against women have been seen in India, some developed by <a href="http://www.endvawnow.org/uploads/browser/files/bell_bajao_case_study_english.pdf">NGOs</a>, <a href="http://in.one.un.org/gender-equality-and-youth-development/">international organisations</a> and some by or in collaboration with the <a href="http://education.goa.gov.in/sites/default/files/Komal-A-Film-on-Child-Sexual-Abuse.pdf">Ministry of Women and Child Development</a>. But India is yet to see a nationwide campaign that focuses explicitly on changing everyday normalised misogynistic attitudes.</p>
<p>My own <a href="https://arro.anglia.ac.uk/704101/">research</a> highlights the role of <a href="https://www.sundayguardianlive.com/culture/8691-education-vital-curbing-violence-against-women">education</a> as a medium for change – and calls for the inclusion of a comprehensive sexuality education module in the school curriculum.</p>
<h2>Growing up in India</h2>
<p>Young men in India mature and develop in a <a href="https://www.hindawi.com/journals/ijpr/2014/357145/">male dominated</a> environment, with little or no sex education. And in rural areas, with very little contact with female peers after puberty. Together, this leads to <a href="https://theconversation.com/the-shocking-mythical-tales-that-underlie-attitudes-to-rape-in-india-27950">misdirected masculinity</a>, characterised by male sexual dominance and unequal gender attitudes and behaviour. </p>
<p>Differences in gender roles <a href="http://medind.nic.in/jah/t04/s1/jaht04s1p71g.pdf">intensify during adolescence</a>, when boys enjoy new privileges reserved only for men – such as autonomy, mobility, opportunity and power. Whereas girls have to start enduring restrictions. Their parents curtail their mobility, monitor their interactions with males and in some cases even withdraw them from <a href="https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0202470">school</a>. This is why, India is in great need of comprehensive sexuality education or modules focusing on sexual violence and exploitation awareness. </p>
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<span class="caption">Young children in school in Mangalore, India.</span>
<span class="attribution"><a class="source" href="https://pixabay.com/photos/children-infants-india-mangalore-298679/">Pixabay/akshayapatra</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
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<p>Such lessons can help to empower young people by highlighting women’s changing roles in society. And they can also provide a safe space to address distorted views of masculinity and create awareness of violence against women. </p>
<p>A comprehensive curriculum-based sexuality module, such as the one launched by <a href="https://en.unesco.org/news/unesco-launches-its-global-comprehensive-sexuality-education-campaign">UNESCO</a> in 2018, can help young boys and girls understand their bodies and the age-related changes better. And it can also teach young people about consent and respecting each others’ personal space. Sex education should also be a space to learn about menstruation, sexual intercourse, sexually transmitted diseases and risks of pregnancy. </p>
<p>Young people also need to know about the risk of sexual exploitation and abuse. This in turn will allow them to recognise abuse, should it occur, and to protect themselves. Parents should also be involved in this process – findings from my <a href="https://arro.anglia.ac.uk/view/creators/Pandey=3AMadhumita=3A=3A.html">research</a> highlight the importance of children witnessing positive and equitable gender roles at home. </p>
<h2>Global problem</h2>
<p>According to <a href="http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures">UN Women</a> – the UN organisation dedicated to gender equality – 35% of women worldwide have experienced either physical or sexual violence at some point in their lives. </p>
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<p><em><a href="https://theconversation.com/india-tomorrow-a-podcast-series-from-the-anthill-episode-guide-114654">Check out our India Tomorrow podcast series, exploring major issues facing Indian society</a>.</em></p>
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<p>We are now living in the <a href="https://theconversation.com/india-how-metoo-is-battling-gender-based-violence-110056">#Metoo era</a> where more and more people are opening up about their own experiences of sexual violence. Yet sex and sexuality still remain taboo subjects in India. Young children need to have a safe environment to discuss these issues. This is important because ultimately, unless people have conversations about sexuality, the issue of sexual violence in India – or in any other part of the world – will never be addressed. </p>
<h2>A solution</h2>
<p>Sex education is more than just talking about sexual intimacy. It includes reproductive health, sexually-transmitted diseases, contraceptives, consent, gender identity, gender equality and self worth – all of which are important themes when addressing sexual violence.</p>
<p>In 2015, the New Zealand Ministry of Education released a new curriculum <a href="https://health.tki.org.nz/Teaching-in-HPE/Policy-guidelines/Sexuality-education-a-guide-for-principals-boards-of-trustees-and-teachers">policy document</a> for sexuality education in all schools. This policy is a rare international example of a curriculum document that explicitly values diversity and promotes inclusive school environments, and it is important to encourage schools to view sexuality as innately motivated by social and political factors. Students also need to be taught to critically think and learn about sexuality and all that it encompasses. Particularly as <a href="https://www.tandfonline.com/doi/full/10.1080/14681811.2012.677211">research</a> shows how schools all around the world act as key locations for exclusion and marginalisation of non-heterosexual youth. The new policy also approaches sexuality education as an area of study rather than a health intervention.</p>
<p>In its historical ruling in 2018, the Supreme Court of India <a href="https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality">decriminalised homosexuality</a>. The judgement reflects the rapid social change in the country. Building on this momentum, sexuality must now be positioned as an area of learning and not an intervention. This is a crucial step in the battle to end sexual violence against women in India.</p><img src="https://counter.theconversation.com/content/114381/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Madhumita Pandey does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Young men in India mature and develop in a very male dominated environment, with little or no sex education.Madhumita Pandey, Lecturer in Criminology, Sheffield Hallam UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/384442015-03-06T12:28:14Z2015-03-06T12:28:14ZIndia’s Daughter: the latest episode in New Delhi’s fraught relationship with the BBC<p><a href="http://www.theguardian.com/tv-and-radio/2015/mar/05/indias-daughter-review-this-film-does-what-the-politicians-should-be-doing">India’s Daughter</a>, the documentary about the gang rape and murder of a young woman in Delhi, is a truly shocking piece of television. With its interviews with rapists, policemen and others, who calmly condone and defend rape in both principle and practice on camera, the film attracted such attention that the BBC brought forward transmission from its original slot on International Women’s Day. </p>
<p>But the Indian government has claimed that the film was released without its approval, and it has been <a href="http://www.independent.co.uk/news/world/asia/indias-daughter-how-india-tried-to-suppress-the-bbc-delhi-gangrape-documentary-10088890.html">banned</a> and removed from the schedules. </p>
<p>This act of censorship is nothing new. The Indian government has a long history of sensitivity to its portrayal on foreign television – and in particular, it’s had a long and fraught relationship with the BBC. </p>
<h2>Thrown out</h2>
<p>Back in 1970, the distinguished film maker Louis Malle made a seven-part series, <a href="http://www.imdb.com/title/tt0063914/">L’Inde Fantome</a>. After its second episode was shown on the BBC, Indian authorities demanded the remainder of the series not be transmitted, as its focus on poverty and corruption portrayed the country in a bad light. The BBC refused to comply, and as a result, its Delhi bureau was <a href="http://www.independent.co.uk/news/obituaries/obituary-louis-malle-1584334.html">shut down</a> and correspondent Ronald Robson expelled from the country. </p>
<p>Interestingly, L'Inde Fantome had already been shown in France; it was the transmission by the BBC in the UK that really annoyed the Indian government. What was truly bizarre about the ban was that in those pre-VHS days, very few people in India would have actually been able to see the programme. </p>
<p>Even the High Commissioner to the UK, who made vocal objections, later <a href="http://openaccess.city.ac.uk/3923/1/Globally%20connected%20media%20ahead%20of%20its%20time.pdf">admitted</a> he had not seen the film.</p>
<p>It was two years before the BBC was allowed back into India, and it only did so under complicated agreements about exactly what kinds of programme-making would be permitted. </p>
<h2>Rejected bids</h2>
<p>Many proposals were rejected, or dragged into negotiations so convoluted that their producers simply gave up. </p>
<p>In the early 1980s, prominent BBC filmmaker Tony Isaacs <a href="http://openaccess.city.ac.uk/3923/1/Globally%20connected%20media%20ahead%20of%20its%20time.pdf">tried to get permission</a> from the Indian authorities to film an episode for a series about the birth of nationhood in India. He spent thousands of pounds arranging location scouting and submitting permissions, but was ultimately rejected. He filmed instead in Argentina, complaining that it was “easier to film in a country with whom Britain was still at war than in friendly India”.</p>
<p>This resistance went right to the top. During the regime of prime minister Moraji Desai, any request for foreign documentary filming had to be personally approved by him. He <a href="http://openaccess.city.ac.uk/3923/1/Globally%20connected%20media%20ahead%20of%20its%20time.pdf">publicly defended</a> this sensitivity, referring to his rejection of a proposal which included untouchables – today called “<a href="http://www.thehindu.com/news/national/increasing-atrocities-against-scheduled-castes/article6344657.ece">scheduled castes</a>” – as he thought it might convey a negative image of the country. </p>
<p>Indira Gandhi, too, had a very tense relationship with the BBC, and was angry at what she saw as colonialist caricatures of a backward country, typically documentaries with images of starving beggars. When she died in 1984, a BBC local radio interview with a Sikh separatist was met with high-level complaints and violent demonstrations. The BBC correspondent Mark Tully <a href="http://openaccess.city.ac.uk/3923/1/Globally%20connected%20media%20ahead%20of%20its%20time.pdf">fled over the wall behind his home</a> in Delhi to get away from the protesters. </p>
<p>The rows between the BBC and the Indian government continued despite all the formal agreements put in place. The trickiest clause permitted the Indian government to view programmes in advance. India insisted that this entitled it to decisions about prior approval, but the BBC interpreted it only as a right to correct any factual inaccuracies. </p>
<p>It is this same argument about approval which is at the core of the ban on India’s daughter. </p>
<h2>Shut it down</h2>
<p>The Indian government’s view of India’s Daughter is that prison authorities were promised early access to the interview with the rapists. But the film’s director, Leslee Udwin, claims she offered them the material, and that after wading through a few hours, they apparently <a href="http://www.bbc.co.uk/news/world-asia-india-31749868">complained that there was too much to watch</a> and had her submit only highlights. </p>
<p>And it’s not just the BBC’s output that has riled India in recent years. When Bollywood princess Shilpa Shetty was insulted by Jade Goody and others on Channel 4’s Celebrity Big Brother in 2007, Indians reacted with fury. Effigies of Big Brother producers were burnt on the streets of Patna, and Tony Blair and Gordon Brown were obliged to make <a href="http://news.bbc.co.uk/1/hi/entertainment/6269953.stm">diplomatic statements</a> on the matter. </p>
<p>The way outsiders (particularly ex-colonisers) portray their society really matters to Indians, both those protesting on the streets and those in positions of power. The difference is that in the past, reacting to sensitive subjects with a ban was generally effective. Only a handful of people in Britain or India ever got to see taboo programmes such as Louis Malle’s complete series, or unflattering news items barred from broadcast. </p>
<p>Today, banning something is usually a way to guarantee maximum exposure, since invariably the offending material will find its way online. And doubtless in this case, everyone with any interest in India’s Daughter will find a way to watch the programme. Many already have – and they are making up their own minds about India’s treatment of rape and its victims.</p><img src="https://counter.theconversation.com/content/38444/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Suzanne Franks does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>India’s government has always been highly sensitive to the way its country is depicted in the British media.Suzanne Franks, Professor of Journalism, City, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/182542013-09-18T05:33:26Z2013-09-18T05:33:26ZHard evidence: how prevalent is rape in Asia?<figure><img src="https://images.theconversation.com/files/31397/original/5wbh7wmq-1379332899.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protest: Indian women demonstrate against sexual violence.</span> <span class="attribution"><span class="source">Rawesh Lalwani</span></span></figcaption></figure><p><em>Hard Evidence is a series of articles that looks at some of the trickiest public policy questions we face. Academic experts delve into available research evidence to provide informed analysis you won’t get from politicians or vested interests.</em></p>
<p>The rape and murder of a young woman in Delhi last year, and the subsequent death sentence handed out to the four perpetrators, has prompted a great deal of <a href="http://www.theguardian.com/world/2013/sep/13/delhi-gang-rape-relief-india-men-sentenced-death">soul-searching</a> in India. Women’s rights have – finally – come to the forefront in a country where the concept remains curiously alien to many of its inhabitants.</p>
<p>In Europe, the incident has also prompted all manner of debate over the role of culture in sexual violence. While Europeans have made small but significant progress in strengthening women’s rights, other parts of the world appear to be lagging behind. To the Delhi case we might add <a href="http://www.theguardian.com/lifeandstyle/2013/sep/07/female-genital-mutilation-tradition-somalia">genital mutilation</a>, the <a href="http://www.theguardian.com/world/2008/nov/03/somalia-rape-amnesty">punishment of rape victims</a>, and female driving restrictions in <a href="http://www.theguardian.com/commentisfree/2013/aug/07/wadjda-saudi-women-fighting-oppression">Saudi Arabia</a>. Women might have it tough in western society, but women in the developing world seemingly have it much tougher.</p>
<p>Last week’s verdict in India also coincided with the release of a <a href="http://www.partners4prevention.org/node/517">major UN study</a> on sexual violence against women in Asia and the Pacific. The fact the survey does not include India in its sample has nevertheless failed to dissuade commentators from <a href="http://www.theguardian.com/commentisfree/2013/sep/13/un-asia-rape-report-widespread-violence">drawing a parallel</a> between its findings and the Delhi case. The shocking <a href="http://www.theguardian.com/commentisfree/2013/sep/13/un-asia-rape-report-widespread-violence">headline figure</a> that “25% of the men surveyed admit to raping a partner or a stranger in their lifetime” appears to offer unequivocal confirmation that all Asian women are the victims of a deep-rooted, cultural problem.</p>
<h2>It’s a long way from PNG to China</h2>
<p>When the figures of the UN study are broken down, however, a different picture emerges. For a start, the survey only covers a small, but diverse number of Asian countries: Bangladesh, Cambodia, China, Indonesia, Sri Lanka and Papua New Guinea. </p>
<p>Of these, the only territories in which responses to the “rape questions” were 25% or higher were Papua New Guinea and part of the western Indonesian half of the island of New Guinea (Papua). In both cases the number of “yes” responses from men were staggering: 43.8% for Papua, and an incredible 59.1% in Papua New Guinea.</p>
<p>So large were these responses, indeed, that if the two samples had not been included in the survey, the overall figure of “men admitting to rape” would have dropped to 18%. In itself that’s still a deeply worrying statistic, but the extent to which a combined population of some 10 million people can swing our perception of an entire continent should be enough to prompt a little caution.</p>
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<a href="https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=352&fit=crop&dpr=1 600w, https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=352&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=352&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=442&fit=crop&dpr=1 754w, https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=442&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/31476/original/39dttrhs-1379427347.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=442&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Prevalence of men’s lifetime perpetration of physical and/or sexual partner violence, by site.</span>
<span class="attribution"><span class="source">Partners for prevention</span></span>
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<p>More problematic than this, however, is that simply pushing together a number of independent samples into an aggregate figure is largely meaningless. Even if we were to ignore the fact that China has a completely different culture to Bangladesh, which in turn has a completely different culture from Papua New Guinea (and so on), when you compile independent samples, without weighting, all you generate is statistical noise.</p>
<p>Let’s take two figures from the survey as an example: the number of women in China who state they have been the victims of some form of sexual violence during their lives, and the respective figure in Papua New Guinea. In China’s case, the figure is 14%, while in Papua New Guinea the figure is (no surprise) an utterly horrendous 58.1%. If you were to push these two statistics together and split the difference, you might be forgiven for thinking that the number of women who experience sexual violence in both China and Papua New Guinea combined is around 36%.</p>
<p>However without weighting the size of each population that would be a hopelessly misleading conclusion. China has a population of around 1.35 billion, while Papua New Guinea’s population sits at about 7 million. If you were to actually combine the populations in reality then the fact that Papua New Guinea is dwarfed by the size of China would result in the figure still being roughly 14%. Papua New Guinea is so small in comparison that its evidently dreadful prevalence of sexual violence would barely make an imprint on the aggregate figure.</p>
<h2>False distinctions</h2>
<p>At this point you might be tempted to throw your arms into the air and claim this is irrelevant. Even if the survey’s figures have been misquoted (through no fault of the study itself I might add), arguing about the exact percentages with something as abhorrent as sexual violence is a bit besides the point: 14% of women having to live through rape and sexual assault is still 14% too many.</p>
<p>You’d be correct to say this, however if we’re going to derive a conclusion that rape and sexual violence are linked to a continent’s culture, then we have to be absolutely certain that’s what the figures suggest.</p>
<p>In fact, when you consider statistics in other parts of the world, the figures are no less depressing. According to the <a href="http://books.google.co.uk/books/about/Violence_Against_Women.html?id=7ZXUSP7CfuUC&redir_esc=y">International Violence against Women Survey</a> in 2007, for instance, 35% of women in the Czech Republic indicated that they had experienced some form of sexual violence in their lifetime. Across other European countries the findings were barely any better: 34% in Sweden, 28% in Denmark, 25% in Switzerland, 23.7% in Italy, 17% in Poland, and 13% in Germany. There are difficulties in directly comparing the results from different studies, and it’s fair to say that the UN study uses a stricter definition of “sexual violence” than the European examples, but these statistics are no less shocking when taken at face value.</p>
<p>Undoubtedly, certain cultures do increase the likelihood of sexual violence taking place. At the very least, the UN study demonstrates that many Asian countries still possess extremely weak legislation for dealing with violence against women. But drawing a false distinction between the cultures of Europe, and the supposedly inferior cultures of Asia, is incredibly dangerous.</p>
<p>It’s not just dangerous in the sense that it promotes complacency about the widespread sexual violence European women still face; it also feeds into an unsavoury dialogue which seeks to portray half the world as upholding fundamentally primitive cultures. It’s particularly galling when this is done largely on the basis of anecdotal evidence, and a statistic which says more about the population of a few Pacific Islands than it does about the continent of Asia as a whole.</p><img src="https://counter.theconversation.com/content/18254/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stuart Brown does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Hard Evidence is a series of articles that looks at some of the trickiest public policy questions we face. Academic experts delve into available research evidence to provide informed analysis you won’t…Stuart Brown, Researcher - European Politics, London School of Economics and Political ScienceLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/117342013-02-07T03:55:35Z2013-02-07T03:55:35ZDelhi rape accused deserve a fair trial – and they’re not getting one<figure><img src="https://images.theconversation.com/files/19454/original/hgpchxgp-1358815162.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">With global attention and the Indian public so invested in the Dehli rape case, the rights of the accused to a fair trial are in jeopardy.</span> <span class="attribution"><span class="source">AAP/Anindito Mukherjee</span></span></figcaption></figure><p>Sometimes, a matter of domestic law - a murder, a kidnapping, a rape - can be so horrifying that it is keenly felt, and keenly watched, around the world. This was the case with the gang rape of a 23-year-old physiotherapy student in Delhi <a href="http://www.abc.net.au/news/2012-12-20/gang-rape-sparks-protests-in-new-delhi/4437080">last year</a>, and now the trial of the five men and one teenager accused of the crime has commenced.</p>
<p>This is a case where the public has an interest in seeing justice meted out against the offenders, and an appropriate sentence given. The accused face the death penalty, or chemical castration, if convicted. Prosecutors <a href="http://in.reuters.com/article/2013/01/21/india-delhi-gang-rape-dna-accused-idINDEE90K00A20130121">allege</a> they have strong evidence, including forensic evidence, to prove guilt. </p>
<p>But concerns about the trial process mean that the trial may be unfair, and that the ultimate verdict may rest on unstable evidentiary grounds.</p>
<p>The rights of an accused to a fair trial are set out in international law, particularly the <a href="http://www2.ohchr.org/english/law/ccpr.htm">International Convention on Civil and Political Rights</a>, which India signed in 1979. India’s national laws, including its <a href="http://indiacode.nic.in/coiweb/welcome.html">constitution</a>, also prescribe some rights of an accused. </p>
<p>These rights protect the accused, set against a system with the power to take the liberty (or even, in this case, the life) of that person. These rights also serve to protect the basis for convictions and assist the court to reach its conclusion on guilt. They ensure that evidence is rigorously tested and any problems are exposed. If the evidence cannot establish the case, the accused should not be convicted. These rights therefore protect the legitimacy of the trial and ultimately the system of law. </p>
<p>But in this case, there are several major concerns.</p>
<p>First, the trial is being fast-tracked, and held in a specially-constituted court. Prosecutors hope to finish the trial <a href="http://www.abc.net.au/news/2013-01-07/suspects-in-india-rape-case-appear-in-court/4455616">within months</a>. There are considerable concerns about India’s fast-track courts. Some have noted that while justice delayed is justice denied, <a href="http://www.bbc.co.uk/news/world-asia-india-20944633">justice hurried is justice buried</a>.</p>
<p>Second, the accused have not had easy access to a lawyer. Under the ICCPR, and the Indian Constitution, an accused has the right to a lawyer of their choosing. The Indian case <a href="http://indiankanoon.org/doc/1355688/">A.S. Mohammed Rafi v. State of Tamil Nadu</a> held:</p>
<blockquote>
<p>Every person, however wicked, depraved … or repulsive he may be regarded … has a right to be defended in a court of law. </p>
</blockquote>
<p>An impartial and capable lawyer will ensure the complicated court processes are adhered to, evidence is appropriately tested, and the case is proved “beyond a reasonable doubt”. Defence lawyers therefore ensure that any conviction is based on strong evidence. </p>
<p>In this case, however, the accused were held in custody for almost three weeks without a lawyer. The District Court Bar Association, representing 2500 local lawyers, <a href="http://www.abc.net.au/news/2013-01-02/indian-lawyers-refuse-to-defend-gang-rape-accused/4450666">has voted</a> not to represent the accused. One of the Bar Association members said that “it would be immoral to defend this case”, and that the lawyers had decided to “stay away” in order to ensure “speedy justice”. This severely limits the accused’s ability to choose a lawyer. While several of the accused now have lawyers, there are still <a href="http://online.wsj.com/article/SB10001424127887323596204578239640237155754.html">concerns about the exact arrangements</a>.</p>
<p>Third, the presumption of innocence has not been respected. The vice-president of the Bar Association said the men committed a “heinous” crime, before they had been presented to the court. The prosecutor commented that the accused are guilty. However, the accused have not yet been proven guilty – they should be presumed to be innocent. In a case so emotionally charged that demonstrators are <a href="http://www.abc.net.au/news/2012-12-26/indian-rape-protesters-burn-effigy/4444260">burning effigies</a> of the accused, it is crucial that there are no comments which presume the guilt of these men.</p>
<p>Fourth, the case is being held in closed court, <a href="http://www.guardian.co.uk/world/2013/jan/09/delhi-gang-rape-trial-closed-doors?CMP=twt_fd">without media</a>. The ICCPR upholds the right of an accused to have a public trial, except in exceptional cases, as does the Indian Code of Criminal Procedure. Holding trials in open court ensures transparency. Scrutiny of process should protect the accused from arbitrary punishment, and encourage public confidence in the trial and the justice system: justice is both done, and seen to be done. </p>
<p>Finally, the lawyer representing three of the accused <a href="http://www.dailymail.co.uk/news/article-2260037/Delhi-gang-rape-suspects-claim-tortured-confessing.html">alleges</a> that they have been tortured into making false confessions. Human Rights Watch has documented the prevalence of <a href="http://www.hrw.org/video/2009/08/03/protect-serve-police-brutality-india">police brutality in India</a>. Given these men were held for three weeks without lawyers, this could indeed have occurred. Allegations of torture undermine the veracity of any confession.</p>
<p>So the accused are being presumed guilty, may have been tortured into confessing, have been unable to choose an appropriate lawyer, and the evidence against them will not be tested in an open, and appropriately constituted, court. This is almost a check-list of how to ensure a show trial. </p>
<p>The charges are serious, and violence against women is a serious problem. This case deserves a serious trial. An unfair trial will deny this victim’s family the possibility of a guilty verdict that rests on solid ground. The lack of lawyers for the accused could lead to an <a href="http://www.huffingtonpost.com/2013/01/08/india-gang-rape-case-lawyers-defense_n_2432064.html">appeal of any conviction</a>, and there may be other appeal points that arise from breaches of the accused’s rights. </p>
<p>This crime was shocking. Those who perpetrated it should be appropriately punished. That’s why the court processes should be strong; the evidence rigorously tested; and the verdict above disrepute. Especially in cases where liberty, life, or bodily integrity may be taken as punishment, the rights of the accused must be upheld and the trial must be fair.</p><img src="https://counter.theconversation.com/content/11734/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sophie Rigney does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sometimes, a matter of domestic law - a murder, a kidnapping, a rape - can be so horrifying that it is keenly felt, and keenly watched, around the world. This was the case with the gang rape of a 23-year-old…Sophie Rigney, PhD Candidate, International Criminal Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.