Friday, October 5, 2012

Court rules severely disabled woman wasn't raped because she didn't 'bite, kick or scratch' her assailant

This outrageous judgement from Connecticut State Supreme Court is only going to encourage crimes against disabled women! This indicates the prejudices, negative attitudes, lack of awareness about the disabling conditions that many of us live with in the community, especially among certain sections of the judiciary!

Court Rules Severely Disabled Woman Wasn't Raped Because She Didn't 'Bite, Kick or Scratch' Her Assailant

October 3, 2012    

In a 4-3 ruling Tuesday afternoon, the Connecticut State Supreme Court  overturned the sexual assault conviction of a man who had sex with a woman who “has severe cerebral palsy, has the intellectual functional equivalent of a 3-year-old and cannot verbally communicate.” The Court held that, because Connecticut statutes define physical incapacity for the purpose of sexual assault as “unconscious or for any other reason. . . physically unable to communicate unwillingness to an act,” the defendant could not be convicted if there was any chance that the victim could have communicated her lack of consent. Since the victim in this case was capable of “biting, kicking, scratching, screeching, groaning or gesturing,” the Court  ruled that that victim could have communicated lack of consent despite her serious mental deficiencies:

When we consider this evidence in the light most favorable to sustaining the verdict, and in a manner that is consistent with the state’s theory of guilt at trial, we, like the Appellate Court, ‘are not persuaded that the state produced any credible evidence that the [victim] was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault.’

According to the Rape, Abuse, and Incest National Network (RAINN), lack of physical resistance  is not evidence of consent , as “many victims make the good judgment that physical resistance would cause the attacker to become more violent.” RAINN also notes that lack of consent is implicit “if you were under the statutory age of consent, or if you had a mental defect” as the victim did in this case.

Anna Doroghazi, director of public policy and communication at Connecticut Sexual Assault Crisis Services,  worried that the Court’s interpretation of the law ignored these concerns: “By implying that the victim in this case should have bitten or kicked her assailant, this ruling effectively holds people with disabilities to a higher standard than the rest of the population when it comes to proving lack of consent in sexual assault cases. Failing to bite an assailant is not the same thing as consenting to sexual activity.” An amicus brief filed by the Connecticut advocates for disabled persons  argued that this higher standard “discourag[ed] the prosecution of crimes against persons with disabilities” even though “persons with a disability had an age-adjusted rate of rape or sexual assault that was more than twice the rate for persons without a disability.”

Source: www.alternet.org 

Thursday, October 4, 2012

Disabled Students must get same admission benefits as SC/ST, rules Delhi HC

Dear  Colleagues,

In a path breaking judgement, a Bench of Delhi High Court has held that  the people suffering
from disabilities are equally socially backward, if not more, as those belonging to SC/ST categories and therefore, as per the Constitutional mandates, they are entitled to at least the same benefit of relaxation as given to SC/ST candidates.

This puts to rest the debate of whether Constitutions favours only the SC/ST and not disabled since Disability is not specifically included in the Constitution.

For detailed judgement  passed on 12 September 2012 in this case titled Writ Petition (C) No.4853 of 2012 ANAMOL BHANDARI Versus Delhi Technological University, please click here.

Below is the news report from Indian Express.

regards
Subhash C Vashishth, Advocate

Disabled students as socially backward as SC/ST, must get same admission benefit: HC

Jayant Sriram : New Delhi, Sun Sep 16 2012, 01:34 hrs

Holding that people suffering from disabilities are also equally socially backward, if not more, as SC/ST candidates, the Delhi High Court has directed the Delhi Technological University (DTU) to provide the same concession in marks for admitting disabled persons as applicable for SC/ST candidates.

“We hold that the provision of giving only 5 per cent concession in marks to persons with disabilities (PWD) candidates as opposed to 10 per cent relaxation provided to SC/ST candidates is discriminatory and PWD candidates are entitled to same treatment,” a bench of Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw said.

The court’s order came on a petition by Anamol Bhandari, a physically disabled student, who challenged the disparity in treatment between the two categories.

In his petition, Bhandari said he had passed his CBSE exam with 52.66 per cent. He said DTU had fixed its cut-off for general candidates at 60 per cent but had provided a relaxation of 10 per cent for SC/ST candidates and 5 per cent for PWD candidates.

The petitioner said though he had cleared his All India Engineering Entrance exam with a rank sufficient to gain admission to DTU, he could not get admission on the basis that his Class XII marks did not meet the cut-off.

He said if the relaxation given to PWD candidates was on  par with SC/ST candidates, then he have been eligible for admission.

The university contended that they were free to frame their own admission guidelines, being an autonomous body. It argued that the petitioner was aware when applying that he would be eligible for a 5 per cent relaxation.

However, when the bench asked the counsel for DTU whether there was any rational basis for fixing the limit of relaxation at 5 per cent for PWD candidates, no clear answer was given and the counsel merely said it was a “policy decision”.