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Saturday, September 19, 2020

A gendered gaze of justice

The stereotype of a 'distressed victim' has influenced the judgment of courts in many rape trials.

Updated: July 29, 2020 9:52:42 pm
CRSA files damage suit of `9 lakh against international roller skater for maligning its reputation Over the years though, the statute has been supplemented with legal precedents that have expanded on the scope of markers to be examined in rape trials. (Representational Image)

Written by Unnati Ghia

The recent order of Karnataka High Court in Rakesh B. v. State of Karnataka follows a catena of Indian cases where stereotypical conceptions of a survivor have guided judicial opinion. The accused here was granted anticipatory bail on the grounds that Indian women do not sleep after being “ravished” and that the survivor failed to raise an alarm. Although the order was met with significant backlash and has since been corrected, it merely extends a line of reasoning already established by the Supreme Court of India (SC).

Section 375 and 376 of the Indian Penal Code, 1860, which criminalise rape, possess fairly clear markers for what constitutes rape. Over the years though, the statute has been supplemented with legal precedents that have expanded on the scope of markers to be examined in rape trials.

Within these precedents, one marker pertains to an intense scrutiny of the body of the survivor. For instance, in Pratap Misra v. State of Orissa, the SC held that evidence of a struggle is expected, and that an absence of injuries on the prosecutrix is a factor negating the rape allegation. Similar observations were made by the SC in Tuka Ram v State of Maharashtra, and this has become an accepted argument before high courts as well.

Another line of judgments is focused on assumptions regarding the behaviour of the survivor — prior to, during and after the rape. Notably, the examination of survivor’s conduct here is not merely to ascertain the absence of consent and the factum of rape, but also to assess whether the survivor meets the court’s preconceived metrics of a rape victim’s behaviour. In Raja v. State of Karnataka, the SC held that the survivor’s conduct was not that of a “terrified” and “distressed” rape victim because she had wandered around at night instead of hurrying home. Similarly, in Vimal Kamble v. Chaluverapinake, the fact that the prosecutrix did not raise an alarm impacted the credibility of her evidence. The silence of the survivor in the immediate aftermath of a rape, or failure to raise an alarm during, are also frequently argued before courts as a means of indicating consent. This notion of a loud and struggling victim — or the “distressed victim” stereotype — was also the premise of the Delhi High Court’s decision in Mahmood Farooqui v State, where it held that a feeble “no” or disinclination cannot constitute a lack of consent.

Seen from this perspective, the opinion in Rakesh B that women would not sleep after being raped is merely another instantiation of the “distressed victim” stereotype. These precedents place an inordinate amount of scrutiny on the survivor — particularly in cases where the conviction is based solely on the survivor’s testimony, which can only be sustained if the testimony is unimpeachable and inspires confidence. The repercussions of such reasoning are also seen in the earlier stages of the criminal process, as in Rakesh B, where the absence of struggle and alarms have become grounds for bail and quashing of the criminal process.

It is also unclear how these precedents can be understood alongside Section 114A of the IEA, which was introduced in 1983 after the Tukaram case and the widespread criticism and protests that followed it. Section 114A creates a statutory presumption once the survivor claims an absence of consent, and shifts the burden of proof to the accused to prove its presence. If cases such as Raja and Farooqui are followed, then the fact that the survivor does not meet the “distressed victim” stereotype alone impacts the rape allegation and needs to be additionally justified by the prosecution on the question of consent itself. This defeats the operation of Section 114A — the purpose of which was ostensibly to benefit the survivor in such cases.

This reasoning entrenches gender stereotypes into Indian criminal law. This occurs due to the manner in which Indian courts appreciate evidence in rape trials, as opposed to the operation of the legal provision itself. These precedents are problematic, because they presume a particular “correct” reaction to rape, independent of the context, degrees of brutality and gendered dynamics within which the rape took place. Furthermore, the fact that these decisions often turn on the evidence of the survivor’s actions (where she was/with whom/when/her decibel levels), as opposed to a close scrutiny of the perpetrator’s conduct, is itself indicative of the judiciary’s gendered gaze.

The writer practises law in Bombay High Court

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