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Mind the Gender Gap

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Courts have often shown their patriarchal mindsets while dealing with rape cases. A balance between the concerns of the victim and the rights of the accused would serve reformatory justice better.

By Srishti Ojha

In India, conventional statements about women abound. “A girl should know how to cook.” “Women should take care of the house.” “Girls should be thin and fair.” “You’re a girl, learn how to adjust.” “You should listen to your husband.” But when sexist and stereotypical statements come from the judiciary, women face a daunting prospect and a tough fight ahead. This sort of validation from an important organ of the government and the custodian of the Constitution can set women back.  

The Karnataka High Court recently faced severe criticism while hearing the bail plea of a rape accused. While granting anticipatory bail to him, Justice Krishna S Dixit in his order said it was “unbecoming” of an alleged rape victim to have fallen asleep after being “ravished”. The Court also said that the “victim voluntarily had alcohol with the accused” and did not lodge a complaint at the earliest point.                                                                                                                                 “…the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished,” the order said. This naturally grabbed the attention of people. The order also talked about an “Indian woman”, categorising her as a separate class.

Does this imply that the Court expects different behaviour from a man who is a victim of sexual harassment?

While stereotypes are part of the discrimination and inequality inherent in society, when it comes from the judiciary, it raises eyebrows. The order also talked about how a rape victim should behave after she is “ravished”. The strange choice of words and the expectation of certain behaviour from a rape victim who may be going through mental or psychological trauma is surprising. Courts are expected to apply laws to reach decisions on cases and no act or rule book has laid down rules about how Indian women or rape victims must behave. However, such comments are often heard in cases of rape and sexual harassment, betraying patriarchal mindsets.

 It’s a fact that not every rape allegation is true and not every accused is guilty. Courts need to form a balance between the concerns of the victim, demands of society, the rights of the accused and reformatory and rehabilitative justice. It is important that judgments do not take away the hard-won victories for women’s rights and legal equality. This would set a bad precedent. Rape myths and victim shaming can be detrimental to rape victims, who are anyway afraid to speak up in our tradition-bound society.

This is not the first instance where stereotypical statements were made about rape victims in courts. In the February 2020 bail order of former Union minister and BJP leader Swami Chinmayanand, accused of sexually exploiting a 23-year-old woman, the Allahabad High Court relied on a common perception of rape victims–that of not speaking up or complaining when subjected to sexual exploitation. There were statements such as “it’s astonishing that a girl whose virginity is at stake does not utter a single word to her parents”, and “she seeks and enjoys his patronage”. The Court assumed that the woman was a willing party as she did not speak up.

In 2017, the Punjab and Haryana High Court, while suspending the jail term of three former law students of a private university in Haryana accused of rape, issued an order that was described as one of the worst examples of victim shaming. The victim, an 18-year-old student of Sonepat’s OP Jindal Global University, was reprimanded for drinking and smoking and not confiding in her parents about being abused. It said that the victim’s statement offered “an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind”. The Court also took note of the fact that the girl admitted a sex toy was suggested by one of the accused and her “acceptance” of the same. The order read: “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 compelling reasons to consider the prayer for suspension of sentence favourably, particularly when the accused themselves are young and the narrative does not throw up gutwrenching violence, that normally precedes or accompanies such incidents.” It also noted that condoms were found in  her hostel room. “It would be a travesty if these young minds are confined to jail for an inordinately long period, which would deprive them of their education, opportunity to redeem themselves and be a part of the society as normal beings,” the Court said. However, in November 2017, the Supreme Court stayed the bail granted to the three accused in the case.

In 2016, the Supreme Court, while acquitting an accused in a case of gang rape, observed that “instead of hurrying back home in a distressed, humiliated and a devastated state she stayed back around the place of occurrence….Her confident movements alone past midnight in that state are also out of the ordinary”. These stereotypical notions of how a rape victim should behave can be extremely damaging to their cause.

However, increasingly women are finding the courage to speak up and assert themselves. The most recent example of this has been the #MeToo movement where women have fought back against their powerful assaulters.Yet, here too stereotypical statements were heard such as “if she didn’t speak up before, then she’s lying”; “if she didn’t retaliate, she must’ve consented”, “if she didn’t tell anyone, it’s a lie”. These have trivialised the seriousness of the charges and the movement.

Even though sensitivity in dealing with allegations of rape and sexual assault has time and again been sought, India has fallen short of them. Prejudices in court orders are a reminder that a gender-equal, progressive society and judicial system are still a long way off.

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