Shubhangi Gehlot, [Law student at Maharaja Sayajirao University of Baroda, Gujarat]
The unwarranted disparity between the statutory laws and the bench’s personal opinions has always been a problem for rape as well as sexual harassment victims. Despite repealing section 155(4) of the Indian Evidence Act, 1872 back in 2003, there is still the essence of prejudices by some courts against the victim’s character, sexual history and socio-economic status. According to Mrinal Satish, author of ‘Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India’, these kinds of stereotypes are still prevalent and has just shifted from the “guilt adjudication phase” to “sentencing phase” of the cases.
Shockingly, there was one such order by the Karnataka High Court in 2020, where not only anticipatory bail was granted by the court but questionable observations were also derived. The single-Judge bench of Justice Krishna S. Dixit observed, "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,". This led to outrage by many women advocates, especially by Adv. Aparna Bhat wrote an open letter to the then Chief Justice of India S A Bobde. She criticized and objected to the insensitive order and continuous use of “neanderthal and misogynist” comments and opinions from the higher judiciary.
These constant continuations of “immoral character” stereotypes in immensely sensitive cases like rape and sexual harassment are highly unscientific and discriminatory. The term “character” has never been legally defined to serve lawful and evidentiary value in any case. Moreover, the law itself immaterializes the question of past sexual experiences and the sexual history of the victim. This can be found unambiguously in Section 148 and Section 53A of the Indian Evidence Act, 1872. Besides, Section 114A mentions the presumption of non-consent of the victim in rape cases.
Are such laws enough to deal with the current situation of rape victims in the court trials? One of the most pointed out roots causes is that there is no fixed judicial approach being used in the process of dealing with rape cases. The constant uncertainty in adopting one relevant theory of punishment out of many is a primary reason for rape cases’ sentencing disparities. The worldwide evolved norm of shifting from deterrent punishments to a reformative approach in sentencing causes the adoption of irrelevant mitigating factors in rape cases. These factors include stereotypical accusations in the form of evidence. Hence, this makes the process completely judge centric rather than principled according to the law. In addition, this type of judicial discretion makes the set-up more archaic for the victim for the sake of reformative action in the favor of the culprit.
Besides the sentencing phase, the complete trial including the granting of bail is many times dependent on myths and stereotypes against the rape victims. One of the prime examples of such incidents in past years is when bail was granted to the former Union Minister and BJP leader Swami Chinmayanand. The court adamantly accepted the myth that “she did not speak up” i.e., she did not file an official criminal complaint for 9-10 months. These internalized biases support the facts described by Indian sociologist, Kalpana Kannabiran on how courts on every level push women back into traditional stereotypes but on the contrary, they keep alive notions of gender fluidity and plurality.
Similarly, there are numerous instances where the prosecutrix’s behavior is blatantly judged whereas, the accused is rarely questioned on “character and behavior”. The examples range from Tarun Tejpal’s case to Bishop Franco’s case to describe repeated victimization of the victim by the messiah’s of justice. The former judgement included unsubstantiated opinions like “prosecutrix’s flirtatious behaviour and sexual conversations with the accused”. The latter concluded “complainant’s statements are hard to believe” and specifically mentioned that “penile penetration” was not described by the complainant in her statement as well as to the doctor. This suggests that 2013’s amendment which discredited the notion that just non-consensual penetration can be considered to be rape was “ignored” by the court. The reason behind these baseless opinions is to prevent false accusations against the accused. On the contrary, the victim’s basic human right to privacy and integrity is easily dismembered in court.
In 2012, the Indian Supreme Court ruled that “Even in cases where the victim was habituated to sexual intercourse, no inference of the victim being a woman of “easy virtues” or women of “loose moral character” can be drawn. Such a woman has a right to protect her dignity and cannot be subjected to rape for any reason. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone.” Despite this decisive judgment, there is a continuation of gross violation of the constitutional rights of rape victims by the entire judicial system.
Though these issues are prevalent all over the world and India is no such exception, it is still extremely important to know that victimizing someone once again with repeated institutional barriers and invalid evidence based on stereotypical and archaic methods does cultivate a newer crime against the victim. Thus, the question still persists, when will such judicial institutions take steps towards victim sensitization and women’s right to equality as well as dignity guaranteed by our constitution?