Rape shame: Why the courts think women are molested

india | Wednesday, September 27th, 2017
Fleme Varkey
Highlights
  • You were raped - It’s your fault
  • These words are what society throws at a rape victim, but seems like now even the courts do
  • Four court judgements which pinned the blame on the girl for being raped because she smoked cigarettes; she drank alcohol; she was sexually active; she had condoms and because she did not act like she was being raped  

Every time a girl is raped she hears this:

Your clothes were to blame

Your body was to blame

Your smile was to blame

Your being friends is to blame

Your words are to blame

And in the end: It’s your fault, you were raped!

Picture this.

A young girl approaches the Punjab and Haryana high court for justice in 2015. She says three men (all known to her) forced her to comply with their sexual demands over a two-year period, after which she went to the police. The men are arrested put into jail.

Now, the court has released on bail three former law students who had been convicted of gangrape and blackmail.

For the three accused the court said this:

 “It would be a travesty if these young minds are confined to jail for an inordinate long period which would deprive them of their education, opportunity to redeem themselves and be a part of the society as normal beings. Long incarceration of this stage when the appeal is not likely to mature for some time is likely to result in an irreparable damage…”

For the girl, the court had plenty to say:

“The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters and these factors would therefore, offer a compelling reasons to consider the prayer for suspension of sentence favourably particularly when the abused themselves are young and the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.”

“We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternative conclusion of misadventure stemming from a promiscuous attitude and a voyeurisitc mind.

What comes to mind on reading this is the attempt of the court to dismiss this incident as a result of  a casual relationship and that only if it had assumes proportions like that of the Nirbhaya case,(read gut-wrenching violence) then it would have made for a compelling case.

Also read: This is why women don’t go to court against abusers

If you read the entire judgement then there are parts where you see the court is as if trying to actively find evidence against the girl for the assault that happened to her

She also conceded in her cross-examination that her hostel room was searched leading to the recovery of condoms.

She further admitted that she used to smoke cigarettes of Classic make.

Apart from this, she admitted to the use of drugs.

We see nothing of this sort when it came to describing the nature and character of the actual accused rather words like young minds and irreparable damage have been used to portray their plight. The victim gets schooled for having  misadventure stemming from a promiscuous attitude and a voyeurisitc mind.

Next we come to a recent judgement where the Delhi High Court acquitted Mahmood Farooqui, co-director of Bollywood film Peepli Live, in a rape case involving a US researcher. The court is of the view here that the woman did not make her emphatic declaration of her wish not to participate in the act and since she faked an orgasm, it gave the director an incorrect communication of her intentions and consent.

Also read: 'When a feeble no means yes,' 82-page Peepli Live director rape verdict

On the woman’s consent, the court had this to say:

Instances of woman behaviour are not unknown that a feeble ‘no’ may mean a ‘yes’.  If the parties are strangers, the same theory may not be applied…But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts.In such cases, it would be really difficult to decipher whether little or no resistance and a feeble ‘no’, was actually a denial of consent.”

These are not just two cases alone where courts failed to give justice.

The 1972 Mathura custody rape case became iconic because it led to amendments in Rape Law via The criminal law act of 1983. A young tribal girl named Mathura was raped by two policemen in custody in Chandrapur, Maharashtra. She was threatened that her entire family would be killed if she did not cooperate. 

This what the sessions court said when the case came for hearing on June 1, 1974. The policemen were declared not guilty. Only when some judges pointed out the gross injustice was this case taken up again. At that time, the judge had declared: 

“Because she was used to sex, she might have incited the cops [they were drunk on duty] to have intercourse with her”. 

Also read: Woman's sarcastic Tweet explaining RAPE hits bull's eye

In 1997 on October 11, a domestic worker lodged a complaint of rape at the Sampangiramanagara police station in Bengaluru. She claimed a group of men had pulled her into an autorickshaw when she was on her way home and had taken turns to rape her. The men were not unknown to her. She said they often teased her when she walked home after work.

During the judgement, this was what was said against the victim:

 That the complainant was sexually active, and possibly a sex worker. 

That she did not scream.(The men had slapped her to stop her from doing so)

“From the nature of the exchanges between her and the accused persons, as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.”

In all these cases one would notice what the court is looking for – gut wrenching evidence, harsh, blood-soaked clothes and dishevelled hair, almost forcing you to believe that the judges have been watching too many Hindi movies to get these ideas from. What they forget sometimes is that in most cases the perpetrators are known to the victim, and mostly when women are overpowered they have little life left to fight back, hence the submissive, non violent behaviour. A victim, in case of any attack, even theft, will not raise an alarm for fear of getting killed. This certainly does not mean that the victim gave consent to being robbed or raped.

Maybe sometimes, judges should get off those high chairs and realise that a rape or an assault does not need to follow a set template – screaming, violence and pleading  and every woman or girl who smokes, has sex, or is out at night with her male friends is not asking for it. THEY NEVER DID.

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