The author here explores the misogynist and sexist underpinnings of Indian jurisprudence that depend on a certain characterization of women to be considered 'victims' in cases of sexual violence.
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On June 22, the Karnataka High Court speaking through Hon'ble Mr. Justice Krishna Dixit granted anticipatory bail to one Mr. Rakesh B, who was accused of raping a woman on the false promise of marriage. M. Rakesh B. had moved the High Court under Section 438, Cr.P.C. for advance bail on being accused of committing offences under Section 376, 420, 506 IPC and Section 66-B IT Act.[i]
In the bail order, the court recorded a range of stereotypical notions and rape myths and cited them as 'reasons' for granting the accused bail. The court observed that it is 'unbecoming of an Indian woman' to fall asleep after having been 'ravished'. Further, the court commented that the victim went to the office late at night and did not object to having drinks with the accused. While the details on facts of the case are not available, yet I would humbly like to submit that the Hon'ble court in its order has failed to understand the nature and impact of sexual violence on women. Instead, it has relied on rape myths and stereotypes in granting the accused bail.
And this is not the first time where Indian judiciary has relied on textbook rape myths and stereotypes and cited them as 'reasons' for its decisions. Indian courts have a long history of burdening women with the performance of being 'Indian women' to establish their credentials as 'genuine rape victims'.[ii]
In the 6-page long order, the Karnataka High court held that while the charges against the accused are serious, yet seriousness alone cannot be ground for denying bail when there is no prima facie case made by the state police. To establish that a prima facie case is not made out against the accused, the court, while commenting about pre and post-rape behavior of the survivor, observed that-
"why she went to her office at night ie., 11.00 p.m.; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; 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" (Para 3c)
Court further observed in the next paragraph that-
"the version of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car, even if is assumed to be true, there is no explanation offered for not alerting the police or the public about the conduct of the petitioner;" (Para 3d)
In less than 100 words, the court packaged a range of stereotypical typical notions and myths about rape survivors- first, that a woman does not fall asleep after being raped. (Rather she must be completely devasted and broken). Second, that a woman must immediately report her violation and the implication is that she is lying if she does not immediately report.[iii] Third, that a woman who drinks and ventures out late at night with petitioner has consented, and fourth, that Indian women, as opposed to western women, are shy, submissive, and obedient. Their sense of violation is more than western women.
While the case relates to rape on the false promise of marriage, where adjudication is complex,[iv] yet it cannot be said that the order satisfactorily establishes its reasons for granting bail. The order fails to establish how a woman's sleep after an alleged rape or her failure to approach police or public, are factors in determining a woman's consent.
The fundamental problem here is that the court has relied on rape myths and not 'reasons' for its decision. Rape myths are prejudicial, stereotypes, or false beliefs about rape, rape victim, and rapists.[v] They are conjectures and presumptions about how a woman reacts to rape. But researchers after researchers have shown that there is no standard formula on how a woman reacts to her violation.[vi] Each woman's experience, her method of processing her violation, and her reaction are different. During the rape, some women may actively resist, others may fall numb, yet another may strategically choose silence to avoid any further harm. Similarly post-rape, a woman may immediately report her violation and feel confident or she may take time to process her trauma and thus delay reporting.
An adjudicatory court based on rule of law cannot rely on such prescriptive 'oughts' of how a woman 'ought' to behave in case of her rape to determine questions before it. [vii] Courts are supposed to give reasons and not rape myths clothed as 'reasons' for their decisions.
However, this is not the first time that the courts have relied on rape myths and gender stereotypes in rape adjudication. From denying a tribal girl justice on the ground of her lack of resistance and physical injury to declaring 'no may mean yes', Indian courts have a history of burdening women to act as per gendered notions of 'Indian women', a shy, submissive, devasted rape survivor who will choose death over 'ravishing' her 'honour'.[viii]
Ratna Kapur has argued that Indian courts view a typical rape victim as 'chaste, pure, monogamous, honorable, and confined to private/domestic sphere.[ix] Testimony of a 'Hindu, a virgin daughter or loyal wife'[x] would be more believable in courts than a woman whose sexual behavior is inconsistent with the dominant values and norms.
The Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat created an entire ready-to checklist of supposed qualities of 'Indian Women' which make her testimony more reliable than 'western women'.[xi] Court held that a girl or a woman in the traditional society of India would be reluctant to even admit her rape, she will be conscious of being looked down upon and ostracized from society. She will be fearful of losing respect and love of her loved ones, she would fear their taunts. She will fear being considered promiscuous. And thus, except for urban sophisticated educated women, Indian women will be shy and reluctant in reporting rape. Opposed to this, the court prepared a list of supposed qualities of 'western women', who, in the opinion of the court, are more likely to file false cases. Court held that Western women may be 'gold diggers', they may act out of jealousy or vengeance.
Prof. Mrinal Satish in his work on rape sentencing has noted that in addition to the burden of fitting the profile of the stereotypical rape victim, courts appear to expect a certain behavior from rape victims, both during the act of rape and subsequently.[xii] To be believed by the court, a woman has to feel a 'deep sense of deathless shame', she should feel that her 'most important jewel has been taken away' on being raped.[xiii] It is based on this understanding that courts refuse to believe the testimony of a victim who does not resist or has no injuries on her body.
These rape myths and stereotypical notions have put us 'Indian women' under burden of acting like supposed 'Indian women'. We should resist to protect our virginities, resist even if sometimes it means death. Our honour is our most important jewel, we should be ravished and act devastated on being raped. Don't show too much confidence in reporting rape, but show some emotions because you are devasted. But don't show too much emotion else you will be considered 'too emotionally unstable' under section 280 Cr.P.C. Don't report too soon, Indian women are reluctant in reporting rape, but don't take too long also in reporting. If you are a Dalit woman, differently-abled woman or poor woman, you also have to especially act according to those statues.[xiv] Perhaps a handbook on guide to being an 'Indian women' as per Indian courts can be developed?
Indian courts have historically failed women in rape adjudications. This case although disappointing but does not come as a surprise. It is yet another reminder that we urgently need to re-imagine our judicial education and judicial training in creating a gender just judiciary.
(Author is a lawyer based in Delhi. Views expressed are personal.)
Visuals are for representational purposes only. Picture courtesy paintings by Raja Ravi Verma.
Endnotes:
[i] Rakesh B. v. State of Karnataka Criminal Petition No. 2427/2020, Karnataka High Court Order Dated 22nd June 2020
[ii] Corey Rayburn, To Catch A Sex Thief: The Burden of Performance in Rape and Sexual Assault Trial, 15 Colum J. Gender and L. (2006) Pg. 437, 438
The author argues that in rape cases complainants who testify are not just recounting their rape, they are also being judged for their performance of their gender role. Jury expects a certain behavior from complainants based on their perception of how a woman ought to react on being raped. Thus there is burden of performance of gender roles on women in rape trials.
[iii] Scholar Jennifer Temkin has identified most common rape myths. The 'why did she not report the rape without delay' is one of the most common rape myths. See- Jennifer Tempkin, "And Always Keep a- Hold of Nurse, For a Fear of Finding Something Worse": Challenging Rape Myths in the Courtroom, 13 New Crim. L. Rev (2010). Pg. 710 as cited in Mrinal Satish, Discretion, Discrimination and The Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press, 2017) Pg. 107
[iv] See- Uday v. State of Karnataka (2003) 4 SCC 46
[v] Martha R. Burt, Cultural Myths and Supports for Rape, 38 J. Personality & Soc. Psychology (1980) 217 as cited in Mrinal Satish, Discretion, Discrimination and The Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press, 2017) Pg. 106
[vi] See- Sohaila Abdulali, What We Talk About When We Talk About Rape (Penguin Viking, 2018)
[vii] See-Jennifer Temkin and Barbara Krahe, Sexual Assault and The Justice Gap: A Question of Attitude 32 (2008) as cited in Mrinal Satish, Discretion, Discrimination and The Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press, 2017) Pg. 106
[viii] The Supreme Court in Tuka Ram v. State of Maharashtra (1979 SCR 1 810) refused to believe testimony of a teen-aged girl citing lack of physical resistance on her part and her failure to raise alarm. The case later became a rallying point for reform in criminal law. A letter was also written to the then Chief Justice of India on court's failure in understanding the power disbalance in the case. See- Upendra Baxi, Vasudha Dhangamwar, Raghunath Kelkar and Lolita Sarka- An Open Letter to Chief Justice of India
[ix] Ratna Kapur, Erotic Justice: Law and the New Politics of Post colonialism (Cavendish Publishing 2005) Pg. 34
[x] Ibid at 33.
[xi](1983) 3 SCC 217.
[xii] Mrinal Satish, Discretion, Discrimination and The Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press, 2017) Pg. 43
[xiii] Rafiq v. State of Uttra Pradesh [(1980) 4 SCC 262], in this case court observed that rape victims feels a ' deep sense of deathless shame', Similarly in State of Madhya Pradesh v. Madan Lal [(2015) 7 SCC 681, the court observed that reputation of a woman is her 'purest treasure'.
[xiv] Bhanwari Devi, a Dalit woman whose rape by upper caste men led to the landmark Vishakha guidelines against sexual harassment at work place, has still not got justice.