Speeding up sexual assault trials: a constructive critique of India's fast-track courts.

• Author: Peterson, Vandana
• Position: Introduction through III. New-Era of Fast-Track Courts A. Focus on Deterrence Through Punishment, p. 59-85

India has a strong tradition of judicial activism for social change and comprehensive laws designed to combat sexual violence against women. Yet such crime has significantly escalated. In December 2012, a widely publicized assault occurred in Delhi. The victim's death triggered a frantic response from many quarters including legal scholars, religious leaders, global media, and government officials. The central government undertook a comprehensive review of existing mechanisms to deter future crimes against women. Its findings led to the creation or designation of "fast-track" courts to adjudicate cases involving sexual crime against women.

This Article posits that designating "special" courts to hear cases of sexual crime can significantly deter such crime, and implicitly address the social norms which typically motivate such crime. However, the fast-track courts that have been established by the central and state governments of India, with minimal logistical or legislative backing, fall short of making any lasting or normative progress. To that end, this Article suggests best practices from specialized courts in other jurisdictions including specialized domestic violence courts in the United States.

Parts I and II describe the contemporary challenges faced by Indian society in the area of sexual violence against women. Parts III and IV describe the history and evolution of fast-track courts and identify areas for improvement. Part V suggests incorporating elements borrowed from similarly situated specialized court systems (specifically, the U.S. domestic violence courts). In particular, this Article argues that by adopting elements of information sharing, community engagement, collaboration, individualized focus on victims, and ongoing outcome monitoring into their daily operations, fast-track courts can elevate the deterrent impact of prosecution and punishment by influencing social norms.

INTRODUCTION I. SEXUAL VIOLENCE AGAINST WOMEN IN INDIA. A. Rural India B. Urban India C. Group Sexual Assault D. Potential for Normative Change II. EVOLUTION OF FAST-TRACK COURTS III. NEW-ERA OF FAST-TRACK COURTS A. Focus on Deterrence Through Punishment B. Specialization as an Instrument of Normative Change IV. SPECIALIZED DOMESTIC VIOLENCE COURTS A. Training B. Community Engagement C. Collaborative Partnerships D. Collaborative Community Engagement E. Individualized Justice for Victims F. Continuous Outcome Monitoring V. CONCLUSION INTRODUCTION

On the night of December 16, 2012, a twenty-three year old student, Jyoti Pandey, was returning home after watching a movie with her friend, twenty-eight year old Awindra Pandey. (1) A taxi driver agreed to take them part of the way, but they had a difficult time finding anyone to drive them the remainder of the distance to the suburb where Pandey lived. When the two came across a private bus that appeared to have four passengers and announced their destination as one of the stops on its route, they took pause but then climbed on, reassured by the presence of the other passengers. The nightmarish events that then occurred took the international media by storm. The five men in the bus attacked Pandey and her companion. Each one took turns driving while Pandey was raped and tortured by the others. Her companion was beaten with an iron rod. Close to 10pm, they were thrown from the bus and--after surviving an attempt to run them over--passersby eventually noticed their bloodied bodies and brought them to the attention of local police. (2)

The media coverage of the attack was unprecedented. Its alarming brutality, in contrast with the mundane familiarity of sexual assault, resonated with the public. The government of India arranged for Pandey to receive the best medical care possible and airlifted her to a specialty hospital in Singapore. On December 28, 2012, against the backdrop of a global outcry and after providing a detailed report of what had happened, Pandey lost her battle for survival and succumbed to the extensive physical damage that her body had suffered.

Seven months later, on July 31, 2013, an eighteen-year old female call-center operator was sexually assaulted by a group of men at an abandoned building, the site of the erstwhile-Shakti Mills in Mumbai. (3) On August 22, 2013, a twenty-two year old photojournalist on assignment in Mumbai was attacked and raped by five men at the same site. (4) The young woman had been trying to photograph the Shakti Mills building for her assignment on the city's tenements. Three of the perpetrators were repeat offenders whose practice was to entrap and rape women at the site of the abandoned building. (5)

In September 2013, less than a year after Jyoti Pandey's death and just a few weeks after the Mumbai attacks, the men responsible were convicted and sentenced to death. (6) The rapid court timeline for the Pandey case was virtually unprecedented in Indian judicial history.

In the immediate aftermath of Pandey's rape and death, the Indian government appointed a commission to investigate and to recommend changes to the criminal justice system. This commission was comprised of three judicial luminaries: former Chief Justice of the Supreme Court, J.S. Verma, retired Justice Leila Seth, and Solicitor General Gopal Subramanium. (7)

The "Justice Verma Report" the commission produced dealt comprehensively with the issue of violence against women, including sexual violence. Drawing on the Fourth Conference of Women, convened by the United Nations Commission on the Status of Women in Beijing in 1995, the Justice Verma Report defined violence against women as

any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. (8) Spurred by the Justice Verma Report and the Indian Law Commission, the central government of India, in conjunction with the government of Delhi, called for and funded a controversial scheme of "fast-track courts" or "FTCs" to try crimes of violence against women, including sexual violence. (9) Although the central government implemented certain reforms in India's criminal laws and procedures (10) to help expedite the prosecution of sexual crime, there was no central legislation passed to establish or specify the procedures in the sexual crime fast-track courts. (11) Consequently, fast-track courts contain gaps in their day-to-day procedures, staffing, and training of personnel that pose challenges to their very raison d'etre (deterring sexual crime). These shortcomings present problems for the credibility, consistency, accessibility, and viability of the fast-track system.

While the fast-track courts are not an entirely new construct in India, until recently, they had never focused on sexual violence. In addition to their specialized subject matter, fast-track courts operate on an accelerated timeline under specially streamlined procedures whereby trials are to be completed within two months after initiation, and conducted without adjournment unless absolutely necessary. (12) Although they are said to have better infrastructure and funding, in many ways they resemble the existing courts in the Indian justice system. (13) The fast-track courts are ostensibly earmarked to handle all permutations of violence against women, including sexual violence by an intimate partner, acquaintance, stranger, or the state. (14) Despite the breadth and scope of the many iterations of violence against women, this Article posits that all violence against women is a manifestation of unequal power between sexes and the domination and subjugation of victims through sexist oppression that is condoned by sociocultural norms. (15) This Article deals specifically with sexual violence against women as demonstrated in the cases discussed.

Sexual violence against women has long since been a challenge to the protection of basic human rights in South Asia; however, Pandey's rape and death in Delhi reignited the debate and compelled the national government to create several fast-track courts to address the problem of violence against women by bringing perpetrators to justice. (16)

Since then, the alleged gang rape and murder of two teenage cousins in rural Uttar Pradesh state (17) has sparked dialogue about caste (18) violence and police complicity in sexual crimes. The unique culture of impunity that fuels such crimes makes fast-track courts--with their dual emphasis on speed and punishment--particularly well-suited to address violence against women with underlying socioeconomic causes. For example, in rural settings, violence against women often manifests as rape by upper caste men against lower caste women, (19) and in urban settings by lower-class, uneducated men against women who seem educated and upwardlymobile. (20) In both cities and in villages, such crime is garnering increased attention in the national and international media.

"This is a time when [a] serious crime against a woman has come to the fore and now [it is the] judiciary's responsibility to instill confidence among the women," said Judge Yogesh Khanna, the fast-track judge who sentenced the four men convicted of the brutal gang rape that resulted in Jyoti Pandey's death. (21) Increasing speed of criminal prosecutions appears to be a common response when governments come under global scrutiny. (22)

Judge Yogesh Khanna's sentencing opinion in the Jyoti Pandey case stated: "These are the times when gruesome crimes against women have become rampant and courts cannot turn a blind eye to the need to send a strong deterrent message to the perpetrators of such crimes."...