A woman is advised by a BLAST counsellor. The organization offers legal support, including providing information, advice, and free legal representation. Credit: BLAST

By Ranjit Devraj
NEW DELHI, Dec 21 2023 (IPS)

Criminal justice systems in South Asia are failing women, despite stark statistics on the prevalence of violence. WHO estimates translate to one in every two women and girls in the region experiencing violence daily.

Nawmi Naz Chowdhury, a Global Legal Advisor at Equality Now, told a webinar titled ‘Future of Legal Aid in South Asia for Sexual Violence Offenses Against Women and Girls: Lessons from the Past Five Years’ that women and girls experience indifference and neglect at all levels, and there are gaps in legal protections that leave them vulnerable to sexual violence. Where laws do exist, common failures in implementation effectively prevent survivors from accessing justice.

Research by Equality Now, Dignity Alliance International, and partners has revealed that sexual violence laws in South Asian countries are insufficient, inconsistent, and not systematically enforced, leading to extremely low conviction rates for rape.

Long delays in medical examinations, police investigations, prosecutions, and trials are widespread. Survivors often have difficulties filing cases with the police and face community pressure to withdraw criminal complaints and accept informal mediation. Other protection gaps in legal systems include overly burdensome or discriminatory evidence requirements in rape cases and the failure to fully criminalize marital or intimate partner rape.

To bring about change, more needs to be done by governments, and this requires an increase in budgeting and strategizing on a national level, taking lessons derived from best practices in the region and elsewhere.

Training and raising awareness must go hand in hand with giving the police the tools to operate and upgrade their role to better meet society’s needs. This could include being trained in sign language interpretation, using technology to offer services and information, understanding communities and their intersectionality, and including women and girls from various backgrounds and diversities within the police force.

Chowdhury spoke about how women from excluded groups are frequently targeted. “Women and girls from socially excluded communities are often at higher risk of being subjected to sexual violence as compared to other communities due to the use of rape as a weapon of suppression.

“This is accompanied by a general culture of impunity for sexual violence and particular impunity for those from dominant classes, castes, or religions, which often leads to a denial of justice,” she said, with Dalit women and girls and those from indigenous communities encountering even greater obstacles to accessing justice.

Legal weak spots also make young and adolescent girls more vulnerable to sexual violence and, in some circumstances, enable perpetrators of rape to avoid punishment, typically by marrying the victim or obtaining ‘forgiveness’ from the victim, says Choudhury. “Victims of crime have a right to free legal aid, but in countries where these protection gaps exist, access to legal aid for women and girls seeking justice for sexual violence is hindered.”

Choudhury pointed to the high levels of stigma attached to rape in South Asian societies that often lead to the non-reporting or withdrawal of cases or settlements outside the court. Other factors that impede the reporting of sexual violence include fear of repercussions, such as violence, threats to life, or social ostracization.

“How much support are women and girls in South Asia getting?” she asked. “While accessing the criminal justice system, they are met with indifference and neglect at all levels, and this often results in the withdrawal of cases or long delays in adjudication—despite the pervasiveness of sexual violence in the region.”

Governments in the area rarely provide psychosocial care. While India, Nepal, and Sri Lanka have schemes for the payment of compensation to rape survivors, practical barriers often make compensation inaccessible for survivors, Choudhury explained.

Participants in the webinar from various countries in the region offered insights into how access to justice rights functions on a practical level and shared methods by which civil society organizations nudge criminal justice systems to bring about progressive change.

Sushama Gautam, at the Forum for Women, Law, and Development (FWLD) in Nepal, said that legal aid provided by her organization went beyond assisting individuals and included advocacy with key players and institutions like the police and the courts through public interest litigation.

A significant achievement of FWLD was filing public interest litigation in 2001 to get the Supreme Court of Nepal to declare in 2002 that marital sex without the wife’s consent should be considered rape. Nepal’s parliament adopted in 2018 a new criminal code that increased punishment for marital rape but made it a lesser offense than non-marital rape.

Nepal’s constitution guarantees legal aid as a fundamental right, said Gautam, explaining, “The national policy on legal aid and the policy on unified legal aid have also been formulated. These policies promote victim-centered legal aid, and there are digital mechanisms to ensure that legal aid has been established.”

FWLD has an app that provides people with legal information on various violations and helps them contact legal aid providers. The organization also runs a Legal Clinic and Information Center that extends services to survivors of sexual violence, such as legal counseling, and helps take care of their immediate needs.

Manisha Biswas, senior advocacy officer at the Bangladesh Legal Aid Services Trust (BLAST), says that while Bangladesh has made progress in ensuring access to justice for rape victims, estimates show that only one in 90 cases of sexual violence reaches the stage where the victim gets compensation.

Leading the Rape Law Reform Coalition, comprising 17 rights organizations, BLAST was instrumental in getting the Bangladesh Parliament to amend evidence laws to disallow ‘character assassination’ of rape victims by questioning during prosecution.

BLAST offers a range of legal support, including providing information, advice, and free legal representation, underpinned by a network of paralegal workers, many of whom are recruited from different law colleges. Other activities include public interest litigation and advocacy campaigns to increase awareness and understanding of legal rights, remedies, and services.

“BLAST enjoys a good reputation that helps us to act as a guiding force and use our expertise in providing services such as training paralegal volunteers in police and court procedures and in proactively rehabilitating rape victims,” she said.

Biswas reflected that much remains to be done. Bangladesh has one of the highest rates of child marriage in the world, with more than half of women marrying before reaching the minimum legal marriage age of 18. Bangladeshi laws also permit marital rape.

Overall, says Choudhury, the reality in South Asia is that “the burden of supporting survivors of sexual violence falls on underfunded NGOs, predominantly legal aid organizations that may not have adequate resources.”

This is particularly true for NGOs and CSOs that operate at the grassroots level, which affects access to justice rights for women and girls who have disabilities, indigenous women and girls, and women and girls from minority groups.

IPS UN Bureau Report

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