Among the survivors

The report is to be celebrated in that it does not fall into the easy trap of treating PWDs as mere victims. To contrast, one can examine the Criminal Law Amendment Bill 2012, which is also path-breaking in many ways, but identifies PWDs only as victims of an aggravated offence, shifting the burden of proof to the accused, and subjecting the convicted to a minimum imprisonment of 10 years, which can extend to life.

The "shifting of the burden of proof" may sound attractive, but the burden only shifts to the defence once the prosecution (a) proves that there was sexual intercourse between the victim and the accused, and (b) establishes that the victim did not consent, proven through the victim's testimony. In cases of persons with disabilities, an inability to be understood often leads to insufficient medical evidence to meet the first condition. Even if it is established, in many instances, PWDs, especially those with the inability to communicate verbally, are often not even made witnesses by the police, leaving the accused with a perfect case for acquittal.

On the other hand, the report portrays a PWD as not just a victim, but also a survivor, the best witness in a criminal trial, with a narration that must be encouraged, facilitated and accepted by both investigating authorities and the courts. Facilities for recording and interpretation of statements in the presence of a magistrate, acknowledging methods of identifying the accused other than through the usual police line-up (voice, touch, etc), encouraging alternative methods of communication within the courtroom are just some of the measures that have been suggested, which will go a long way in encouraging PWDs to engage with the criminal justice system to curb abuse. At the same time, the committee must be lauded for not making suggestions that would infantilise PWDs (for instance, making any sexual intercourse with a person with disability a statutory offence), undermine the rights of an accused (by taking away the right to cross examination) or merely cater to public whim (death penalty for rape, time-bound trials, etc). The experience of the committee members and the thoroughness of the junior supporting team are reflected in a document that can be most aptly described as mature and pragmatic.

... contd.

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