The criminal legal system is built on a hierarchy of offences. This is evident from the punishment accorded to different crimes which range from the death penalty to a fine. Brutality of an act is one way in which offences are arranged. For instance, the National Crimes Records Bureau has created category of offences titled ‘violent crimes’ which includes murder, culpable homicide, rape, dowry death, kidnapping, abduction etc., and this also follows the hierarchy of offences by extent of violence. The ‘Principal Offence Rule’ states that if multiple offences occur, only the most heinous crime is considered as a counting unit.
Interestingly, in policing too, law enforcement officials respond to crimes depending on how they perceive their relative heinousness. Thus, while sexual harassment on the street may garner an immediate response, a victim of online harassment may be asked to take matters in her own hands. Molly Ghosh one of the presenters at the National Dialogue on Gender-based Cyber Violence, co-organized by IT for Change and the Advanced Centre for Women’s Studies - TISS Mumbai, noted from her investigations that police in the state of West Bengal told women who approached them with complaints of online harassment to block or ignore the abuser. The police also avoided filing First Information Reports and instead put down these complaints as general diary entries, which means that the complaint need not be followed by investigation. Justice Prabha pointed out that the law and its officers continue to operate in the dimension of the physical only, and are consequently always searching for physical signs of injury, despite the consequences of gender-based cyber violence (GBCV) being as debilitating as crimes offline. Seeking to optimise its limited resources, law enforcement agencies would rather expend their time and energy in what they perceive to be crimes with ‘real’ harm like rape and murder.
Another reason we see the police ignoring GBCV is the commonplace misconception that since women are usually not owners of mobile phones, they cannot be subjected to violence through it. We have found police officers resistant to the idea that rural women face cyber violence, arguing that such a thing would be illogical, because of the lack of access. (Women in India are 36% less likely to own a mobile than men, with the gender gap in rural areas being as high as 39%, and only one-third of Internet users in the country being women.) However, from the stories that have emerged, and continue to emerge, in the media, and those that were discussed at the National Dialogue on Gender Based Cyber Violence, we know that GBCV cuts across social identities of locations, income and age. Digital virality can lead to a new normal for macho or hyper-masculine behaviour that legitimises the creation and consumption of misogynistic and violent content.
This is India - stories at the margins
In Bengaluru, a city which has earned the moniker ‘the Silicon Valley of India’, three women were raped by their boss, who videotaped the incident and used it to blackmail them. Back in 2014 , a high school student from Jaunpur in Uttar Pradesh was kidnapped and raped by a gang of boys who also videotaped the incident. They then used the video to blackmail her and to continue to sexually abuse her. Three years later, in a village near Sidhauli, also in Uttar Pradesh, another teenage girl was gang raped and videotaped by the offenders. Incidents like these are being reported from all over the country.
Vidya Reddy who heads Tulir, an organization committed to working against child abuse in India told us of similar incident from a village near Salem, a town in South India. A young girl, around 17 years old, was called by her boyfriend to a secluded place where she was gang-raped by the boyfriend and his friends who also took pictures and videos of the crime. Fearing that the images would be circulated she agreed to meet him again where she was raped again by him and his friends. Al Jazeera in 2016 broke the story of trade in videos of rape through mobile phones in towns in North India. The lack of access to information about sexuality and stigma around sexual expression has created an environment of toxic masculinity that normalises consumption of rape videos on the mobile phone by boys and men.
Radha, a presenter at the National Dialogue and an educator at a university in Tirunelveli, learned of cases of morphing and blackmail, cyber-stalking, non-consensual circulation of phone numbers, the demand for sexual favours etc., while investigating the prevalence of GBCV amongst the women- students in her town. Often the harasser is someone known to the woman – a male classmate or relative who got hold of her number from a WhatsApp group. There have even been cases of young girls who are groomed by acquaintances they may have met online into prostitution. Sunitha Krishnan who heads Prajwala, an organization working on anti-trafficking, recounted to us a story about a young girl who was lured into prostitution through an online dating site.
While conducting her study, Radha discovered rampant under-reporting of the cases of GBCV within the student community, which she attributes to a combination of factors including fear, ignorance of the law, the normalisation of the violence, and the lack of a support mechanisms at the educational institution and especially, the home. The lack of safety online means that many students exit online spaces completely.
Ranu Tomar, in her study on sexual harassment faced by women journalists writing in the vernacular language in non-metropolitan, tier 2 cities of Bhopal, Indore, Gwalior and Jabalpur (located in central India), uncovers how the misogyny faced in the workplace spills online, taking the form of unsolicited advances, sexual jokes and pornography sent through the mobile. Far from the metropolis, media houses located in these smaller towns are shielded from any sort of accountability. Driven by the fear of an intimidating cyberspace, these journalists stop participating in the online public, and are consequently cut off from important networks and journalistic sources. Violence online also serves as a tactic to silence these women who may be investigating ‘uncomfortable’ stories.
Multiple presenters at the National Dialogue also shared their own experiences of facing abuse online when they spoke up about gender discrimination, or questioned the political establishment. One of the participants in the conference, an advocate in the Supreme Court India, told us about how she had to run from the North to the South of the country, just to file a complaint of cyber violence. She also told us of cases where the police refused to file a case of online casteist and sexist harassment, under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, even though provisions of the Act could punish such acts.
What now and what next
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Reporting the offence:
Due to a number of high profile cases of trolling that managed to garner some media attention, the Ministry of Women and Child Development opened more accessible avenues to redress GBCV like the e-mail ID it set up “solely to address and resolve the issues of hateful conduct and stalking on social media platforms". How this works is that once a complaint is made on the portal, the complainant is queried if she has lodged an FIR or filed a complaint before the social media company (SMC). If neither has been done, then the complainant is advised to file a complaint with the SMC and share the reference number with the Ministry who then checks back with the police or SMC within 7 to 10 days to see if any action has been taken. In the absence of any action, the Ministry steps-in and follows up on the complainant. Equating the powers of the police with that of the SMC here does appear to be confusing. By suggesting that a complaint be made to the SMC, the Ministry seems to prefer the SMC route rather than going to the police. This may have to do with jurisdictional difficulties with dictating to the police what it must do, since ‘public order’ and ‘police’ fall under the purview of specific sub-national units/ governments as per constitutional apportioning of subjects. National Institution for Transforming India, Niti Ayog, has suggested shifting ‘public order’ and ‘police’ from the state to the concurrent list of the Constitution given that with “the rapid growth in internet, communication and mobile technologies, organised crimes and terrorism can be best tackled through a unified legal, administrative and operational framework for the police forces across the nation." According to the Ministry, grievances received through the e-mail are related to ‘dowry demand, domestic violence, sexual harassment at workplace, rape cases...". From when the e-mail portal was announced in July, 2016 to early February 2018, a rather tiny number of about 185 grievances have been received. The Home Ministry has also announced plans to set up a portal ‘Cyber Crimes Reporting Portal’ to report cases of cyber crimes against women as well as a dedicated cyber crimes laboratory to investigate cyber crimes against women. While these are useful initial steps, the fact that only 185 grievances have been received so far points to deeper un-addressed flaws. Fore-fronting the SMC route suggests that redress may be limited to take-down of content and blocking or shutting down the profile of the abuser. This response is futile since alternate/ fake profiles can creep up just as another is killed off. If the government intends to tackle GBCV head on it must look to reforming law enforcement. Cultures of policing need to change to be able to recognise, acknowledge and respond to the grievous harm in cases of gender based cyber violence. Further, although this e-mail ID has existed for two years, not many people know about it, and very little information on what action is taken after a complaint is filed, is available. It is incumbent upon the government to undertake steps to raise awareness of the measures it adopts to address GBCV and to be transparent as to what happens after a complaint is given.
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Evidence gathering:
Law enforcement, however, is not always at fault when an investigation of GBCV is derailed. Since servers of many SMC’s are located abroad, to gather evidence, law enforcement has to rely on Mutual Legal Assistance Treaties (MLAT) that India has signed with many countries, including the US, where many SMCs are located. However, this route rarely yields data. Observer Research Foundation’s study on the India-US MLAT reveals that since the treaty dates back to 2001, it is not geared to deal with the volume of electronic data requests. Cumbersome request procedures and long-drawn-out approvals discourage many law enforcement officers from using the MLAT system altogether, which means forgoing important evidence as well. Storing data internally, or data localisation has been suggested as one way out of legal hassles of accessing data during investigations. However, multilateral-trade agreements thwart these efforts, deeming them protectionist. Since the legal requirements for the presentation of digital evidence in court is quite strict, it is crucial that all the states in India adopt and follow a standard operating procedure in the collection and presenting of digital evidence in court. This can ensure that digital evidence is admitted and taken into consideration by the court. The LNJN National Institute of Criminology and Forensic Science (Ministry of Home Affairs) has published one such manual - ‘A Forensic Guide for Crime Investigators’ that includes a chapter on digital evidence. The Supreme Court has recently ruled that the procedural pre-conditions stipulated by the Evidence Act for the production of digital evidence in court may be relaxed by the court in certain cases, in the interest of justice. This is a welcome step and could help in prosecution of cases of GBCV.
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Recording of crimes:
The recording of crimes is an important method to draw a connect between seemingly disparate incidents, thereby shedding light on what may be the nature of occurrence of a particular kind of crime. We are, for example, seeing that rape is often accompanied by videographing of the crime which is then used to blackmail and silence the victim. If the data put out by the National Crime Records Bureau reflected the cases of rape that were also video-graphed (which would mean invoking a combination of legal provisions of both rape and anti-obscenity/ non-consensual circulation of images of private parts), we could determine the extent and spread of the offence and may be able to determine the measures that can be taken to address it. Currently, we have a poor picture of the extent of GBCV in the country. One of the reasons for this, as discussed above, is that crime record data follows the ‘principal offence rule’. Thus, unless it is a standalone crime, GBCV will not be recorded as a separate offence. This means that its number in the official records is not the total number of cases that are actually filed. The crime record data also does not provide data for all types of cybercrimes, choosing to lump them into categories that are not revealing or useful. The 2016 crimes data by Indiarecorded 868 cases under the (problematic and vague) motive of insulting the modesty of women, and 569 cases under the motive of sexual exploitation, in the chapter on ‘cyber crimes’. The latter presumably covers minors as well as adult men and women. Under the chapter ‘crimes against women’, the only data available for a cyber crime is of the circulation of sexually explicit content (covered by Section 67A of the IT Act). Although Section 66E of the IT Act (a consent based provision which punishes the circulation of intimate images surreptitiously captured) is applied in the case of GBCV, there is no gender-disaggregated data (of the victims) provided under it. In the case of stalking (already a gendered offence), specific numbers on cyber stalking are not available, even though it is separately addressed by the law. Finally, the geographic break-up of crime data released by the government is limited to states and metropolitan cities. Because scant attention is paid to other areas incidents like that from 2010 reported from the Birbhum district in West Bengal of a young Adivasi girl who was stripped and paraded by the men in her village, who also captured it on video and circulated it by MMS, may never be accounted for. Consequently, we will continue to suffer from data black-holes. We need to have systematic recording of cases of GBCV, based on a taxonomy that reflects the multiple routes of the crime – with and without continuities to existing categories – if effective measures (legal and extra-legal) to tackle the phenomenon are to be put in place.
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Law reform:
Part of the blame for bad data also lies with the fact that we lack adequate laws. Many kinds of GBCV are ignored by the law, and we end up having to rely on the catch-all, anti-obscenity provisions. Steeped in misogyny, anti-obscenity provisions disregard women’s sexual expression and empower the State to police women’s bodies if it deems its representation to be ‘indecent’. The Information Technology, 2000 does have other more progressive options like Section 66E; however, this section is hardly used. India still does not have a law on gender-based hate speech. The Law Commission and T.K Viswanathan Committee set up to revise hate speech laws in the country have suggested broad and vaguely worded changes that have been criticised, but commendably, both the Commission and the Committee have suggested that sex, gender identity and sexual orientation be included in the current hate speech law. If incorporated into the law, women will be able to move against those who perpetuate sexist and sexual harassment online, without having to rely on obscenity based provisions, which should be phased out.
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Measures through educational and other institutions:
That the business of toxic deep culture cannot be eliminated by the best laws has been underlined time and again. Educational institutions - from schools to universities – have a strong role to play in cultivating critically thinking digital citizens, who appreciate that digital spaces need to be free for all to participate without fear or intimidation. This approach is not just about ‘safety trainings’ to navigate the online, but a wider approach that recognises the bodily integrity of all individuals as an inalienable right and the violation of that as an act of violence – whether online or offline. Redress mechanisms that are required to be set up under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 must be put in place in all organisations (especially, schools and colleges), and capacitated to respond to GBCV, with an ambit that covers both sexist and sexual violence.
This blog was first published by GenderIT.org.