New Delhi: It was a busy morning, as always, inside the offices of the Delhi Commission for Women, with three members preparing to attend to the grievances and complaints of survivors of sexual violence.
The survivors, of diverse ages and backgrounds—from vendors and construction labourers to women from business families and professional services—but a majority from vulnerable and migrant communities, sat outside the chambers of each member, preparing to discuss their cases.
As the clock ticked past 9 am, a woman with a list of cases, announced the name of the first survivor. She called out a name.
An old man stood up. Alongside him was T*, a four-year-old, holding his fingers. She struggled to keep up as he walked.
While her grandfather presented his testimony, T was silent. She was unable to say what her uncle had done to her. Her mother had only found out because of T’s blood-stained skirt and persistent stomach ache.
Cases of sexual assault where the perpetrator is a relative are termed incestual sexual assault. They involve sexual contact or behaviour involving members who are blood relatives or considered part of the family unit, such as adopted siblings or step-relatives.
This form of assault is characterised by the abuse of power and trust inherent to familial relationships, making it particularly devastating and complex for survivors.
Laws & Loopholes
In 2023, the latest year for which the National Crime Records Bureau (NCRB) has published data, there were 445,256 crimes recorded against women, a 4% surge over the previous year: 31.4% of these cases were registered as ‘Cruelty by Husband or His Relatives”.
Since 2012, when a teenager, later called Nirbhaya, was gangraped on a bus, sparking public protests, India has witnessed a shift in outlook towards sexual assaults and has introduced legislation to address these incidents.
A series of new laws and amendments have been enacted, such as the Criminal Law (Amendment) Act 2013, The Protection of Children from Sexual Offences (POCSO) Act, 2012, The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 and The Juvenile Justice (Care and Protection of Children) Act 2015.
Leading women groups, alliances, and commissions, have also paved the way to expedite the process of justice delivery in many instances, such as in the Nirbhaya case or the #metoo movement, making more space for the victims of sexual harassment to exercise their rights.
The introduction of, and amendments in, sexual harassment acts have focused on broadening the scope of what constitutes sexual assault, victim protection, especially in the case of children, and increasing penalties for the offender.
POCSO was a landmark legislative act in various ways. Unlike the Indian Penal Code (IPC) where the penalties for crimes against children were not as clearly defined, POCSO redefined penalties for the offender by bringing in stringent penalties for specific types of sexual harassment and assault.
The act also specified which judicial bodies were responsible for the case, based on the age of the victim and the offender.
Previously, in most legislative acts and amendments, the focus has been on what constitutes the crime. However, who commits the crime ultimately defines the due course of whether justice is served.
In cases where there is no family connection between the perpetrator and the victim, the power dynamic tends to be weak compared to cases where the perpetrator is related to the victim and has larger influence.
Victims often fear the adverse consequences of reporting abuse, such as separation from family or legal repercussions that might affect family members.
This fear can act as a significant deterrent against reporting abuse.
Laws governing what constitutes the crimes of incest, child sexual abuse, sexual assault, and rape, vary from jurisdiction to jurisdiction.
The common thread in incestual sexual assault is the exploitation of familial bonds and trust. This abuse can range from non-penetrative acts to full sexual intercourse and involve coercion, manipulation, or physical force.
Indian laws, while encompassing various forms of sexual violence under its penal code and specific legislation like POCSO, does not provide a distinct legal category for incestuous sexual abuse.
The lack of specific mention of incest in the legal framework often leads to challenges in addressing the unique aspects of incestual abuse, including the deep breach of trust, the complex family dynamics involved, and the significant emotional and psychological impact on survivors.
Incest & Sexual Assault
The 2023 study by this writer, for the Delhi Commission for Women, examined 218 reported instances of incestual sexual assaults on minors, the experiences of 30 survivors and their families after the crime, the response and actions taken by law enforcement and support personnel, and the educational trajectory of survivors both before and after.
Out of the 218 survivors who participated, all less than 18, 94.5% were female; 51% had been sexual harrassed; 49% raped; and 16 reported they had been impregnated by their rapists.
In 35% of the cases, the perpetrator was the victim’s father, in 22% an uncle. In 3% of the cases, the incestual sexual assault involved more than one family member.
The majority, 57%, of perpetrators of incestuous sexual harassment and rape of minors were the victim’s father (35%) or uncles (22%).
Up to 65% of the victims said that incestual rape and sexual harassment occurred multiple times. The enduring psychological, emotional, and physical trauma experienced by the victim, first during the initial incident and then by having to coexist with the accused in the same household, continued to fuel fear and hostility. As a result, 81% of the victims reported panic attacks and anxiety.
This anxiety is exacerbated when victims seek to file complaints with law enforcement or undergo medical examinations at hospitals as the process involves them reliving the traumatic incident.
Several survivors refused to take part in the study, citing a reluctance to revisit their traumatic experiences by recounting the crime's details.
Although these steps are essential for the judiciary to make informed decisions, particularly in support of the victim, the distressing experiences recounted by the victims highlight a worrying mindset exhibited by law enforcement and hospital authorities when dealing with cases of incestuous crimes.
The study suggested that survivors of the aged between 12 to 15 years reported the highest number (35%) of incestual sexual assaults followed by those in the 15 to 18 year age group (28%).
The victim's sustained fear often resulted in a significant decline in their academic performance, with some affected for extended periods and others permanently. It was found that 71% of the victims either dropped out of school permanently, or for a period of over 6 months, after the incident.
Moreover, in cases where no academic loss was reported, the victim was either too young to join school (from months old to 2 years of age) or the incident occurred during their school vacation.
Up to 55% of the respondents said they were not satisfied with how the police handled their cases. They said they were shamed or told to withdraw the case.
A few also recalled that they were forced to sign a Medico-legal case (MLC) document even though they had not been medically examined. An MLC certificate is issued after a doctor conducts an examination and believes that law enforcement should investigate an injury.
“The doctor did not conduct the examination and forcefully registered the signature on the form denying the internal medical check,” a 15-year-old victim of incestual rape said. “Additionally, the doctor told me, ‘This is allowed in your community (The survivor is Muslim. This comment plays to false communal stereotypes of the Muslim community.), what's the point of filing a case? You should marry him and say what happened was your choice.’”
The impact of incestual sexual assault is profound, leading to long-term psychological, emotional, and sometimes physical consequences for the survivors. Due to the sensitive and complex nature of incestual abuse, survivors often face significant barriers in seeking help and justice, including feelings of shame, guilt, and the fear of disrupting family dynamics.
These fears are worse in cases where the accused is the primary breadwinner in the family. This further inhibits victims from reporting the crime and exacerbates their trauma.
Some Recommendations
The complexities involved in these cases make it a necessity for the legislature to provide a dedicated approach for addressing them. Along with providing legal measures to protect the rights of the victim, a specialised approach would involve providing financial support, shelter, and counselling to victims and their family.
Here is what this specialised approach could look like:
- The fear of financial instability in cases where the perpetrator, father or brother, serves as the primary or sole financial provider for the family, leads to a reluctance to file criminal cases. Services and programs tailored for the victims of incest and their families should include providing compensation for relocating and moving out of the household, if the accused resides in the same household, and offering assistance in securing employment opportunities for other family members.
- The provision for shelter homes to protect, rehabilitate and support the victim. These shelter homes should be equipped with resources and people to help counsel the victims of sexual assault and for them to begin or resume their education.
- Despite the prevalence of incestuous sexual abuse, it remains stigmatised by society. Societal norms deter many from speaking out and seeking redress. Even those who muster the will to report such abuse often endure further pain and distress when dealing with various societal institutions. De-stigmatizing the cases of incestual abuse requires a robust and dynamic awareness and sensitization campaigns.
- It is crucial to safeguard the educational rights of incestual sexual assault victims and ensure that adequate emotional and mental support is being provided to them to help resume their education. The government should establish a network of guidance counsellors assigned to schools and educational institutions, to provide ongoing support and guidance to victims of incest, safeguarding the victim's education from being severely disrupted by the trauma they have endured.
* Name of T withheld in line with the law on protecting identity of victims of sexual assault.
(Shaista Naaz is a development professional working in the field of gender and education.)
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