How sex trafficking survivors in India undergo re-victimisation by the judiciary

The moment she receives the summons, the difficult memory work she has performed in a desperate attempt to delete the violence she has suffered disintegrates.

Voices Opinion

Fatema (name changed) speaks with reluctance of her imprisonment in a Budhwarpet brothel. She was prostituted to over a dozen men everyday, often beaten, and confined to her room. A rescue team raided the place one night, released the girls, and Fatema was taken to a shelter home. The authorities registered an FIR, put her through medical tests, traced her family, and soon after this, she was sent home.

Fatema’s struggles with reclaiming her personhood continue to this day, three years after her repatriation, even as she has been through the proverbial rehabilitation mill. She has been assigned a social worker who has been supportive in the wake of her trauma - a period when she sank into deep depression, and felt friendless and cut-off from the world. Within months of her homecoming, her parents arranged her marriage with a man from a neighboring village. Nothing was said about the incident of trafficking.

This is customary practice in West Bengal, which is the biggest source area for trafficking crimes in India, with 53,645 missing persons on the record in 2016, according to the National Crime Records Bureau (NCRB). Girls are lured away from their homes - their families are low-income and lack livelihood resources, let alone access to opportunity - with assurances of remunerative work or marriage, both being lucrative choices for victims. Those who are rescued and repatriated are more often than not married off, with the new husband none the wiser about his wife’s traumatic history. In her marital family, the survivor has to work to keep this secret from her relatives and harbour a constant tension that somehow they might find out, and if they do, she will have to deal with a tremendous backlash, despite the fact that she was not culpable in the episode of trafficking. Her victimhood continues in insidious ways, and the social system is liable for this.

While it is not the ideal method for a sex trafficking survivor’s reintegration, most women choose the approach of clamping their mouths down on their stories to avoid reliving their trauma. Domestic strife and the ensuing stigmatisation and shaming are dispelled with this strategy. Many married survivors go on to have children and settle into family life, and establish stable routines of work, and manage to push their damages to the back-burner. By keeping silence about what happened to them, they rewrite a different narrative for themselves, in which erasure of trauma may not be possible, but forgetting it might be.

Except when ghosts from that troublesome past come to their doorsteps as uniformed policemen, years after they were rescued from the sex trade. They bring a summons issued from a court in that region, and stipulate without prelude that the survivor must go with them to depose at that court, where their cases against their trafficker or brothel manager or pimp (or some or all of them) have come to trial. The police will usually deliver this summons twice, and then return with a warrant to escort the survivor from her home to the courtroom for mandatory deposition.

The first appearance of police personnel in a presumably traditionalist rural household can set in motion a chain of events that are standard judicial procedure, but a nightmarish ordeal for the survivor who has been called to depose. The moment she receives the summons, the difficult memory work she has performed in a desperate attempt to delete the violence she has suffered disintegrates.

Her old trauma resurfaces, because she knows that the sense of disgrace associated in public perception with sex work will threaten her marriage if she is exposed. She becomes frantic with worry. While she is awake, memories of assault and violation attack her again; she might experience returning symptoms of clinical depression, anxiety, or post-traumatic stress disorder. “My in-laws and the people at their village have no idea that I was trafficked to Pune,” Fatema says. “I am afraid. If they find out, that’s the end of my marriage.”

Fatema fights sleep every night to avoid the off chance that she might talk in her sleep and risk her husband listening and knowing. She can reach out to her social worker to discuss her new, unexpected vulnerability, but even this must be done cautiously so she cannot be overheard, or by making some excuse to meet the social worker in person, doubling the deception already weighing on her conscience.

For Sarika (name changed), who is not married, receiving this same summons is calamitous for slightly different reasons. The police team queried villagers for directions to Sarika’s home, and word spread like wildfire that she was wanted for deposition in Pune because she was involved in “dirty work” there. “Every time I leave the house, I can see people laughing and pointing at me. I know they talk about me. They have said horrible things to my parents, and I feel guilty about disgracing them,” she says. Sarika’s parents are trying to arrange her marriage quickly so she can be sent away from this space of turmoil, but she knows that with marriage, her dreams of being educated will have to be sacrificed. She also knows that given what happened to her, she has very little bargaining power to postpone or stave off marriage. With the visits from the police team, Sarika has lost liberty and opportunity in yet another instance of the continuing re-victimisation of a trafficking survivor.

After the summons is given, the social worker must counsel the survivor and prepare her for court proceedings. Now, there is a new problem to contend with. In an overwhelming majority of incidents, the trafficking case is lodged at the destination with the victim as the main witness for the prosecution. Since repatriation is done as quickly as possible, most victims return to their home states before their cases come to trial. They return with no certified copies of their case documents - FIR, judicial statement, chargesheet, and evidence-related papers. Their contact with their legal representative at the destination dwindles or completely shuts down, and many survivors show very little interest in keeping up with the progress of their cases, asserting that they want to move on. It is reasonable to assume that in those instances the survivor imagines, if mistakenly, that her past will not come back to disturb the new life she has built. Therefore, she is psychologically disconnected from the events that make up her case. She loses her grasp of small but crucial factual details; she feels unprepared to depose with confidence. Moreover, even when case documents are acquired after painstaking coordination processes, they are nearly always in the regional language of the destination area, and this again interferes with easily accessing information that would let her give robust evidence to convict the trafficker; a translator’s help becomes necessary. These factors combine to create conditions where the survivor is revictimised by the judicial system, which must shield her, but at this point intensifies her vulnerabilities and insecurity.

At least 25 survivors from West Bengal are presently in this situation. More than half of these cases are at least two years old. A majority are waiting for their victim compensation applications to be filed. These women have been connected with a Pune lawyer who is working to retrieve certified copies of case documents so the survivors can be trained to depose confidently. This process is time consuming and judicial red tape imposes unexpected delays that cannot be planned for. A number of cases could not be traced at all as the survivor could not supply the names of the accused or police station information; in these cases, an FIR is usually filed at the source so the survivor can at least claim victim compensation. Also, since a single advocate is handling all 25 cases, managing time and priorities becomes a separate problem to contend with.

Advocate Abhijit Patil, who is representing these survivors, asserts the importance of deposition if traffickers and brothel managers are to be convicted. “At one level, silence shows consent or at any rate complicity with the criminal dealings, even if you acknowledge that the trafficked person is a victim,” Patil says. “With a majority of repatriated sex trafficking survivors failing to show up in court to depose, traffickers are not identified and no evidence is given against them in the presence of a magistrate, therefore we have an abysmally low conviction rate - less than 1%.”

Mercifully, there are provisions for survivors to depose through video conferencing. The lawyer must make an application to the magistrate and cite strong reasons as to why she is unable to attend the hearing in person. For many, travelling to the destination is unaffordable and logistically unviable; their absence from their homes would have to be explained through stressful subterfuge and evasion. Being back at the site of exploitation and meeting the accused in court also brings with them the risk of being triggered and relapsing into some form of mental illness. Most magistrates will allow the trial to be held via video conferencing; this is a saving grace, excepting occasions when technical problems interrupt proceedings and postponements have to be made. “Deposition through video conferencing is definitely a step ahead,” Patil confirms. “As long as the survivor’s identity documents are in order, there should not be any problems with conducting the trial this way.”

Social workers and lawyers are also working to protect survivors from the acute humiliation of unforeseen police visits or the prospect of court-ordered arrest. Soma Sarkar, a caseworker from the Barasat Unnayan Prostuti - a community-based organisation (CBO) for survivors in the North 24 Parganas - says that several CBOs have brainstormed ways to pre-empt this. “We thought that having the summons delivered to a CBO near the survivor’s address was a better approach. The survivor can either collect it, or her social worker can deliver it, without a lot of attention being drawn to the process. This way, her privacy is not compromised.” Sarkar adds that some CBOs in the region had planned to organise a sensitisation program for police personnel in the district to train them in ways to interact with repatriated survivors in a sensitive, discreet, and non-threatening manner, but this has not happened yet because of a resource crunch.

The new Trafficking of Persons Bill 2018 has provisions that can make deposition a more comfortable experience for survivors. In addition to a video conferencing facility, the Bill allows for quick trials at fast-track courts, and a scheme for victim and witness protection, so that the survivor can depose without fearing for her safety. Essentially, this is movement towards higher conviction rates and better justice, which may have been delayed, but will not be denied.

Malini Bhattacharya is a communications specialist for Kolkata-based human rights organization Sanjog, and a rapporteur of human trafficking issues. Views expressed by the author are personal.