Putting victims on trial

In late June, a single bench of the Karnataka High Court granted anticipatory bail to a man accused of rape. One of the first reasons mentioned for granting bail was that the seriousness of the offence alone cannot be a ground for depriving a citizen of her/his liberty. While this is true, the Court ought to have considered that in cases of rape, the issue in granting bail is not just seriousness of the offence, but the very real possibility of intimidation of the complainant, which would prevent her from being an effective witness in the trial. Furthermore, the Court anchored its reasoning in unsubstantiated, damaging inferences drawn from the behaviour of the complainant. While the contentious remarks were subsequently expunged on an application made by the state, the continued and frequent use of these rape myths and stereotypes deserves discussion.

Rape myths or stereotypes are widely held, false and prejudicial notions about rape, rapists, and the survivors of rape. The underlying assumption of such stereotypes is that ‘genuine’ victims/survivors can be recognised by the discernibly common patterns of behaviour they exhibit. To begin with, ‘genuine’ victims/survivors of rape are expected not to put themselves in situations which, it is believed, might lead to rape. These situations may include anything that is seen as a social taboo for women: whether it is drinking, partying, or indeed, as stated by the defence in the infamous Nirbhaya case, simply being out at night. The implication here is either that willingness to participate in such activities is equivalent to consent to sex, or that engaging in social taboo is tantamount to inviting rape.

Also read | No means no: court will take victim’s word in rape cases, says Supreme Court

Shifting the burden onto the victim

Another common stereotype is that ‘genuine’ victims/survivors physically resist their assailants or shout for help. For instance, in Mahmood Farooqui v. NCT of Delhi (2017), the High Court of Delhi had held that the complainant’s ‘feeble no’, even when spoken, would not be sufficient evidence of lack of consent. This case also repeated the widely held belief of Courts that where the victim/survivor had a past sexual history with the accused, her consent would be assumed, and any ‘unwillingness’ or ‘hesitation’ on her part would be disregarded.

The greatest evil of rape myths or stereotypes is that they put the victim, rather than the accused and society, on trial. The focus shifts from whether the accused committed the offence to whether the victim/survivor’s behaviour met patriarchy’s exacting standards. With the narrative that the victim/survivor could have avoided the rape, or indeed, asked for it, the blame is conveniently shifted from large-scale social and systemic failures to the victim/survivor herself.

The rape law for adults in India, as amended in 2013, specifically states that failure to resist cannot be taken as evidence of consent. In fact, consent, whether verbal or non-verbal, has been defined to mean ‘unequivocal voluntary agreement’. Passive submission (which may arise out of fear or deep-rooted social conditioning) or acquiescence to non-sexual acts such as drinking together, cannot and should not be equated with consent to sex. The 2013 Amendment also laid down that consent would mean willingness to participate in a ‘specific’ sexual act. Therefore, consent given for a particular sexual liaison cannot be read as ongoing consent, given in perpetuity.

Also read | Victim blaming to rapist shaming: a clarion call to shift the stigma

No universal script

It is impossible and unjust to have a universal script against which the behaviour of individual victims/survivors is assessed, because each person and each circumstance is distinct. Unfortunately, however, the reliance on rape myths and stereotypes is painfully common in the Indian criminal justice system. In a country that has abysmally low rates of reporting for sexual offences, and even lower rates of conviction, the continued reliance on such stereotypes raises important questions and concerns. How can we expect survivors of rape to come forward knowing that they will be doubted every step of the way? What is the purpose of enacting purportedly progressive or ‘victim-centric’ legislation when those tasked with implementing them continue to put the victim/survivor on trial?

Also read | Rape, impunity and state of denial

Rape myths and stereotypes echo the deeply entrenched patriarchal biases of the players in our criminal justice system, and of society at large. When used in judgments, they become a permanent part of the legal record. As precedent, they create a chilling effect for all future victims/survivors of rape, making the criminal justice system even more unapproachable than it is. This calls for urgent and renewed efforts towards sensitisation and for the need to make sensitivity in handling sexual offences part of our judicial incentive structure.

Shraddha Chaudhary is a Lecturer, Jindal Global Law School, Sonipat

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Printable version | Jan 26, 2021 9:12:31 AM |

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