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Just a few weeks ago, the world was shocked by the news of the brutal rape suffered by Fernanda, a Spanish woman in India. However, this case only reflects the harsh reality faced by many women in South Asia, a reality often omitted from media attention.
It is estimated that one in two women in the region experience sexual violence daily, with 63% of child victims of violence worldwide residing in South Asia.
Before addressing sexual violence in this region, it is essential to recognize its vast cultural and social diversity. Made up of a wide range of countries, each with their own traditions and languages, South Asia is a mosaic of unique and varied cultures. Any analysis of this topic must take this diversity into account and avoid simplistic generalizations that do not reflect the complexity of reality.
However, a study of national laws in several countries led by the organization Equality Now has revealed a worrying trend in many countries in the region: the persistence of a patriarchal culture that subordinates women and lacks adequate protection for their rights and security
Although all South Asian countries except Iran have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), many nations still fail to meet their obligations under international law.
To ensure equal justice, it is essential that laws address a wide variety of situations in which the victim cannot freely and autonomously give consent. This includes cases of rape perpetrated by individuals who have authority over the victim or who maintain professional relationships with them, as well as different forms of coercion that can influence consent, such as intimidation or fraud.
However, a significant gap in protecting victims’ rights is seen in countries such as the Maldives and Bangladesh, where laws do not adequately address circumstances in which consent is overridden by the presence of an authority relationship.
Similarly, although laws in Bhutan state that consent is not valid if the victim is in custody, they do not explicitly recognize other situations in which it may be affected by the influence of a position of authority.
Furthermore, it is crucial that laws related to sexual violence recognize situations where the victim is not capable of consenting to sexual relations.
For example, in Nepal, the law states that “lack of judgment” invalidates consent, but does not cover other situations such as intoxication and unconsciousness. Meanwhile, Bangladesh law does not address the issue of disability in adult victims at all.
Countries such as India and Sri Lanka have implemented legal reforms in recent years to meet their international obligations. These countries have explicitly stated that evidence of physical resistance is not required to demonstrate lack of consent in sexual encounters.
Although many South Asian countries do not require this evidence to convict of rape, in practice, judges often consider the presence of physical injuries on the victim’s body when determining whether sexual intercourse was consensual or not.
Sexual violence in South Asia is fueled by the deep-rooted perception of women as property. This mentality is reflected in national laws, which often do not equate marital rape with rape outside of marriage. Such laws reinforce the subordination of women and encourage widespread discrimination.
In some countries such as Bhutan or Nepal, the law prohibits sexual rape within marriage, but it is considered only a minor offense, with considerably lighter penalties than those associated with rape.
Governments in the region have shown resistance to amending these laws to criminalize marital rape, arguing that this could destabilize or destroy the institution of marriage, reflecting a strong connection between the law and long-held traditions.
In addition to legislative deficiencies, victims in this region face obstacles to accessing justice within the criminal legal system. Stigma, lack of family support and fear of blame are significant barriers in all South Asian countries. The tendency of some officials to blame victims and the refusal to believe their testimonies also contribute to a low conviction rate.
These challenges highlight the urgent need to address not only legislation, but also the entrenched attitudes and practices that perpetuate injustice towards survivors of sexual violence.
On the other hand, procedural deficiencies and obstacles within the criminal justice system are a significant challenge. In Bangladesh, India, Nepal and Sri Lanka, the police’s failure to register or file rape cases, even after receiving complaints from survivors, is a major barrier to accessing justice.
In South Asian countries, judicial proceedings are often characterized by their protracted nature, with significant delays in the investigation, trial and judicial ruling stages.
These delays in collecting evidence and performing medical examinations can substantially affect the quality of the evidence presented, which in turn decreases the likelihood of a successful conviction. Only laws in Bangladesh and India impose time limits on trials in rape cases.
Likewise, female victims of rape face another important barrier to obtaining justice: discrimination in judicial procedures, which derives from secondary victimization. Only Indian law specifically prohibits the introduction of evidence related to the survivor’s prior sexual history.
In other countries, defense attorneys often ask disparaging questions about this aspect, as well as about the survivor’s past relationship with the perpetrator. These tactics aim to discredit the integrity and character of the victim, sometimes resulting in the acquittal of the offender, even when there is evidence suggesting a lack of consent during sexual intercourse.
The difficulties mentioned are just the tip of the iceberg when it comes to the challenges women face in terms of sexual violence in South Asia. There are numerous other obstacles ranging from limited access to support services to lack of public awareness and lack of effective preventive measures.
Addressing these issues comprehensively requires continued and coordinated commitment from governments, civil society organizations and the international community to create a safe and equitable environment where women can live free of violence.
