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Opinion

Indian legal system is failing rape victims with archaic attitudes

Judge in Karnataka case said alleged victim's response was 'unbecoming'

| India
People protest against the alleged rape and murder in Chandigarh in December 2019: there has been no change in the lens through which the legal system views rape victims.   © Reuters

Charukesi Ramadurai is an Indian freelance journalist, currently living in Kuala Lumpur.

In late June, the High Court of south Indian state Karnataka granted anticipatory bail -- bail ahead of an arrest -- to a man accused of rape. In his judgment, Justice Krishna Dixit expressed his reservations about the truth of the accusation, saying the reason the woman gave for falling asleep after the alleged rape, "that she was tired," was "unbecoming of an Indian woman; that is not the way our women react when they are ravished."

There was an uproar on mainstream media and social media over the tone of the judgment and, in particular, the use of "ravished," a dated word more suggestive of a romance novel, in the context of an alleged rape.

A few days after the judgment was announced, a group of over 200 lawyers and law students from the city wrote a letter of protest to the court, calling the judge's views "prejudicial" and saying his conduct was thoughtless about the consequences for the woman and society at large.

Since the outcry, Dixit has removed the offensive lines, but the judgment remains, affecting the woman who filed the complaint -- and thousands more women in India who have to fight the legal system's gender bias and its archaic notions of what the ideal Indian woman ought to do and not do when it comes to sexual violence.

There has been a spotlight on sexual violence in India since the brutal gang rape and murder of a young woman inside a moving bus in New Delhi in the winter of 2012. However, there has been no change in the lens through which the legal system views rape victims. In 2017, the Punjab and Haryana High Court suspended the sentences of Vikas Garg and his friends who had been convicted of gang rape, shifting the blame on to "the promiscuity of the victim and the voyeuristic tendencies of all parties involved, including the victim."

A year before that, the Supreme Court of India had overturned a state high court verdict sentencing three men for gang rape. The words used to justify this decision are strikingly similar, indicating disbelief at the complaint because her demeanor was "not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct."

It went on like this, commenting on her "confident movements" and hinting that the complainant was merely looking for vengeance since she stayed at the scene to collect evidence of the crime, "instead of hurrying back home in a distressed, humiliated and a devastated state."

These kinds of statements suggest a tacit understanding among the judiciary that a rape victim deserves justice if and only if she has been an "ideal" Indian woman, in the mold set by them, before and after the crime. This image is propagated by popular culture; in Bollywood movies, the term for rape is "izzat lootna," meaning "to steal one's honor." It is a phrase that neatly ties in a woman's identity with her apparent chastity.

In this social context, it is extremely difficult for women to come forward with a rape complaint, given the long process of intrusive and often insensitive questioning they have to go through. In 2012, when Suzette Jordan filed a complaint, having been raped in a locked car by a group of five men, one of the questions she was asked by the skeptical police officers was about the positions in which she was raped. Jordan subsequently waived her right to anonymity and revealed her entire ordeal in press interviews.

A rape victim participates in a sit-in protest demanding justice in New Delhi in May 2016: it is extremely difficult for women to come forward with a rape complaint.   © Reuters

A callous judge is just the last straw for women who have borne several rounds of such probes before appearing in court. Such judgments lead public opinion on rape cases, adding strength to the idea of victim-blaming.

Of course, blaming and shaming the victim are not unique to India. But it is ironic that such a ruling comes two years after the MeToo movement burst into public discourse in the country, allowing women to come forward with their stories of abuse by men in power. If women are to report and seek justice for crimes of a sexual nature, the language of the courts, currently detrimental to the cause, needs to change.

There is no room for moral sermonizing in place of legal reasoning. Given that response to any kind of trauma depends on several immediate factors, there is also no call for a standard meek and defeated response to rape.

In the case of the Karnataka woman, her complaint was not that she was ravished, but violently raped, and she had every right to sleep off her trauma. The onus is on the legal system to support victims and offer them justice, rather than cast aspersions on their behavior. If not actual empathy, then objectivity would be a good position for courts to maintain.

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