The lack of empathy for survivors of sexual violence, assault

This order is critical to the development of “therapeutic jurisprudence” because it focuses on providing medical care and the statutory right to therapeutic access. Importantly, the court explicitly states that “the word ‘treatment’ would include first aid, diagnosis, in-patient admission, continued out-patient assistance, diagnostic tests, lab tests, surgery if required, physical and mental counselling, psychological help, family counselling, etc”. And when brought to the emergency, the hospital shall not insist on ID proof in order to admit the victim, but first provide immediate treatment to the victim.

The Delhi High Court’s (HC) order when read from the right to health, dignity, privacy and life perspective allows us to think about the right to “therapeutic access” for all survivors of sexual and gender based violence. Surely, the medical profession can also ensure free treatment for survivors of domestic violence, or women raped or beaten in marriage?

Doctors and judges have much to learn from the recent French court verdict punishing mass rape of Gisèle Pelicot who shifted the shame to the husband who raped her. Her husband drugged her, engaged 70 men over a decade to rape his drugged wife, and filmed other men raping his wife after he put her in a chemically induced sleep.

Adopting a right to health perspective, one hopes that doctors and judges will learn from Gisèle Pelicot’s testimony to develop systems that allow therapeutic access, recognise the harm of sexual violence and enable medical care to women raped and beaten in marriage, irrespective of whether marital rape is criminalised or not. Marriage does not give men the license to rape their wives.

Gisèle Pelicot’s case is important for the medical profession to root out bias against women patients and end medical gaslighting. By blaming women patients and making them doubt their experience, symptoms of trauma are misrecognised and wrongly labelled as malingering.

The Delhi HC by noting that hospitals continue to deny free treatment while courts hear rape and child sexual abuse cases “routinely”, and “in large numbers”, points our attention to a grave crisis of governance. However, the political class is not interested in thinking of sexual violence as a public health issue.

There is scarce rage over victims being denied medical treatment, or the fact that victims are often forced to borrow clothes from relatives, or wear dirty blankets loaned by the police or flimsy hospital gowns after the medico-legal examination. Or that the costs of labs to purchase containers to conserve evidence (such as foetal matter) may be passed to the victim’s family.

It is a scandal that women and children are still not given clothes kits in hospitals and police stations. In each rape case, clothes which include undergarments, sanitary napkins, dress, socks, and other personal items such as shoes, or spectacles are seized by the police for forensic analysis. However, these clothes and items are not replaced by the state. In light of earlier orders and circulars, the court’s reasoning must be extended to argue that the state has an obligation to provide a new pair of clothes (and other personal items) to rape survivors, when such things are collected for forensic analysis.

Clothes may be seized at police stations or hospitals. Often victims are made to wait in blood soaked clothes for hours, before medico-legal procedures start. These procedures are highly intrusive, and often re-traumatise. And then stripped of their clothes, the victims borrow clothes from relatives, policemen or wear hospital gowns. And in this state of trauma, they navigate public spaces to return home, be this a house, hut, shelter or a street.

Vasudha Dhagamwar, eminent feminist law teacher and one of the signatories of the Mathura Open Letter had first raised this issue in the 1980s, in an essay in Mainstream. Dhagamwar wrote about the case of a working class rape survivor who owned only one sari — and this too was seized as evidence. Surely the state is liable to replace such items, without passing on the costs to the victim.

The state has an obligation to provide a new pair of clothes (and other personal items) to rape survivors, when such things are collected for forensic analysis. By not providing clothes, rape survivors are stripped and made unsafe yet again. It amounts to state sanctioned violence to take the clothes of a victim (stripping is an offence in the BNS and IPC). Under the constitutional schema, this is a specifically gendered harm done to rape survivors. Surely, law, state and society can make provisions to provide clothes kits to rape survivors.

The writer is professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University