There has been some rightful furore over the order of June 22, 2020 passed by Justice Dixit of the Karnataka High Court in Rakesh B. v. State of Karnataka. Criticism has not ventured into the merits, but has been limited to the following observations:
“c) nothing is mentioned by the complainant as to why she went to her office at night i.e., 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.”
Although the latter half of the paragraph has since been expunged, this was just the latest instance of problematic observations being made by a Court. In the open letter subsequently penned by Ms. Aparna Bhat, highlighting that judicial attitudes are beset by misogyny and sexism, she posed the following question:
“Is there a protocol for rape victims to follow post the incident which is written in the law that I am not aware of? Are “Indian women” an exclusive class who have unmatched standards post being violated? Who are “our women”?”
There may not be a protocol written in law, but precedents show that there is a code of patriarchal beliefs that underpins adjudication in rape cases, and gendered stereotypes define the image of the victim. I attempted to examine these notions and identify features of the “ideal” rape victim, who is likely to be believed.
Who is the ideal prosecutrix?
In his article for the Columbia Journal of Gender & Law, Corey Rayburn noted that the typical rape and sexual assault trial requires that the prosecutrix play different characters throughout and “prewritten cultural scripts dictate her lines”. This is especially true in India, and the following characteristics may define the “ideal prosecutrix” in a rape case in the eyes of the courts.
- She is an inconsolable, visibly distressed victim.
An inconsolable and crying victim inspires confidence in her testimony, as noted by the Supreme Court in Kamalanantha v. State of Tamil Nadu. This is couched in the idea that rape is a fate worse than death, not because it invalidates bodily autonomy but because it robs the Indian woman of her “most valued possession”, i.e. her “chastity or virginity” (Md. Jakir Ali v. The State of Assam and Bipul Medhi v. State of Assam).
As the Supreme Court noted in State of Punjab v. Gurmit Singh & Ors., “[A] murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female”. Thus, a rape victim is supposed to be broken, devastated, and ‘destroyed’ in order to be trustworthy – a notion deeply entrenched in Indian society. In her book No Nation for Women, Priyanka Dubey records how the neighbours of a woman who was raped view her lack of visible distress:
“[I]f you see her she looks absolutely normal and happy. There’s no trace of sorrow or stress on her face. Don’t write it like this, but I think her character is not good…”
The order in Rakesh B. noted that the statement of the complainant that “after the perpetration of the act she was tired and fell asleep” was unbelievable because this is not how an Indian woman would react to being raped – the expectation is that she would be distraught and incapable of going to sleep. The same line of thought is followed to disbelieve complaints that are delayed, since a woman would surely approach the police immediately upon loss of her “most valuable possession”.
In Raja v. State of Karnataka, the Supreme Court opined it was “unusual” that the victim was not “hurrying back home in a distressed, humiliated and a devastated state”, and thus the veracity of her testimony was suspect. In fact, looking around for evidence at the location of the alleged crime was seen as pointing to her “avengeful” (sic) character.
- She is chaste and ‘virtuous’.
As mentioned earlier, courts have been of the opinion that a woman’s chastity and virginity are her most valuable assets, so a “good” woman is one who “protects” her chastity. In Arif Iqbal @ Imran v. State, the Delhi High Court observed that,
“It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming source of hilarity (sic). It is for her to maintain her purity, chastity and virtues.”
For a prosecutrix to have the most credibility, she must be a virgin with no prior sexual experiences, particularly not with the accused. Courts often struggle with adjudication where non-conventional and close relationships are concerned. In Mahmood Farooqui v. State (GNCTD), one of the reasons that the prosecutrix was disbelieved was that she had kissed and hugged the accused earlier. Not that it takes much for the courts to feel that the victim is not virginal enough; in Kadvabhai Becharbhai Savaliya v. State of Gujarat, the Gujarat High Court made it a point to note that “She [complainant] has also deposed that at times, they used to have lunch together”.
In Farooqui, the Court chose to focus on the portion of the message sent by the prosecutrix after the rape which said “I do love you and wish you well”, and ignored the rest of the message reiterating her lack of consent. Moreover, the case serves as an example of how the archaic standards judges have for “our” Indian women are even worse in effect when extended to a prosecutrix that is not Indian.
The Punjab & Haryana High Court delivered a moralistic order that engaged in extreme character assassination in Vikas Garg & Ors v. State of Haryana. The bench blamed the victim for the crime, going so far as to say that her mind was “perverse” like one of the rapists and she had a “promiscuous attitude and a voyeuristic mind”. The court effectively declared that since she smoked, recreationally consumed drugs, and her hostel room had condoms, she was equally to blame for her rape.
The age of the prosecutrix does little to halt the judicial instinct to make observations on the morality of a female’s conduct. In Raju @ Raj Kumar v. State of Haryana, the prosecutrix was a 17 year old and was declared “habitual to sexual intercourse”; following the medical report, the court thought it was apt to make the following observation:
“The above extracted medical evidence speaks volumes of the fact that she was habitual to sexual intercourse. So much so, she had cut her pubic hairs. A girl below the age of 16 years can be hardly expected to be conscious about these things.”
In Musauddin Ahmed v. State of Assam, the prosecutrix was 14 years old, but was called a “dissolute lady” and a “woman of easy virtues” by the Supreme Court. The Bombay High Court labelled a 17 year old who had been abused when she was in 6th standard as “inherently abnormal” and someone who “used to do all dirty things”.
- She aggressively resists rape and does not ‘submit’ to it.
The ideal way to show non-consent is through the physical evidence of a struggle. Although there is no requirement for there to be any resistance in order to establish lack of consent, courts seem to believe that aggressive physical resistance is the only valid reaction to rape which lends any credence to the allegations.
Fear that causes submission or inaction elicits suspicion, since no chaste woman would let rape happen to her. In Raja v. State of Karnataka, the Supreme Court overturned a conviction and observed of the prosecutrix:
“Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.”
In Dilip v. State of Madhya Pradesh, the Supreme Court was considering an appeal against the conviction by the High Court; the trial court had acquitted the appellant after observing that,
“The prosecutrix was supposed to attack the appellant like a wild animal, but she did not even resist. Thus, her conduct suggested only and only, her consent and will.”
The Supreme Court justified its acquittal of three accused of gang raping the prosecutrix in Pratap Mishra v. State of Orissa by stating that,
“We should have expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix… If the story of the prosecutrix was true, then we should have expected an injury or bruise-mark on the breasts or chest or on the thighs...”
- She is able to ensure her non-consent was not misunderstood by the accused.
Despite Section 114-A of the Indian Evidence Act providing for the presumption of non-consent in favour of the prosecutrix if she says that it was against her will and the sexual intercourse itself is proved, judges manage to create new criteria on which to assess the commission of the offence – such as whether consent was sufficiently communicated to the accused.
Inexplicably, the burden for the lack of consent being understood is placed on the prosecutrix. The Farooqui case is the most notable instance of this in recent years; the Delhi High Court created a new standard for testing consent when it raised the following question: “[I]f it was without the consent of the prosecutrix, whether the appellant could discern/understand the same.” This was in order to set up the defence of the rape being a ‘misunderstanding’, where the accused was simply acting in line with his expectations of what ought to have happened. The Court fuels this defence by framing a “feeble no” as an insufficient expression of non-consent.
Courts can go out of the way to construct a narrative of consent in certain cases. In Kadvabhai Becharbhai Savaliya, which cited Farooqui, the Division Bench of the Gujarat High Court acquitted the accused by considering whether the prosecutrix was a consenting partner by reading into her conduct, despite no such defence of consent being raised by the accused before the trial court or in any statement.
- She is not ‘westernised’, i.e. an educated or ‘modern’ woman.
Since ‘modern’ women deviate from traditional gender norms and are likely to be more independent, they are less likely to evoke pity or sympathy. Consequently, they are likely be treated with greater suspicion. The Supreme Court’s decision in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat described the reasons for why rape victims should be believed, all stemming from the perceived virtues of “Indian women” and placing them in contrast to the qualities of “western” women who are capable of lying. This sense of Indian women being fundamentally “purer” is similar to the root of the Karnataka High Court’s claim that “our women” are supposed to react in a certain way where rape is concerned.
In Rohit Chauhan v. State, the Delhi High Court reiterated the contrast between the Indian woman and the Western woman, and discussed why a woman closer in nature to the latter should be disbelieved. The court noted,
“[H]ere is a complainant who appears to be quite an ultra-modern lady with an open outlook towards life, enjoying alcohol in the company of men which is evident from the photographs placed on record… She does not appear to be such a vulnerable lady that she would not raise her voice on being immensely exploited over such a long period of time.”
In Kunal Mandaliya v. State of Maharashtra, a single judge bench of the Bombay High Court observed that an educated woman could not have been deceived and thus it was not believable that her consent was obtained by fraud.
Furthermore, a woman that does not abide by orthodox paternalistic ideas of movement is considered unusual and possibly immoral. In Raja v. State of Karnataka, the Court observed that “[C]onfident movements alone past midnight, in that state are also out of the ordinary”. In Rakesh B., the Court questioned why the complainant was in her own office at 11 PM in the night.
Essentially, a woman who abides by traditional gender roles and reacts according to expectations is likely to be telling the truth, while a woman who defies or subverts traditional gender roles is deemed untrustworthy. Thus, the “ideal” rape victim for courts is barely even a person – she is a caricature built off the notions of how women should behave and react, with little scope for deviation from those pre-conceived notions.
Savyasachi Rawat is a final year law student at University School of Law & Legal Studies, Delhi. He can be reached reached at firstname.lastname@example.org.
Photo Credits: Daniel Berehulak/AFP
A slightly abridged version of this article was first published on Bar & Bench.