Karnataka HC's Remarks - Rape Myths and Stereotypes

What is the issue?

• A single bench of the Karnataka High Court recently granted anticipatory bail to a man accused of rape.
• The reasons given and the remarks made by the court highlight the grave shortfalls and insensitivities in the justice system.

What were the judge's remarks?

• Justice Krishna S. Dixit of the Karnataka high court made the following remarks:
  • nothing is mentioned by the complainant as to why she went to her office at night that is, 11.00 pm
  • 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
• He then went on to grant anticipatory bail to the accused.
• One of the reasons - the seriousness of the offence alone cannot be a ground for depriving a citizen (accused) of her/his liberty.

What are the contentions?

• The Judge's observation on the seriousness of the offence is true.
• But, the Court ought to have considered that, in cases of rape, the issue in granting bail is not just seriousness of the offence.
• It is rather the very real possibility of intimidation of the complainant.
• This would prevent her from being an effective witness in the trial.
• Also, the Court based its reasoning in unsubstantiated, damaging inferences drawn from the behaviour of the complainant.
• The contentious remarks were subsequently removed on an application made by the state.
• However, the continued and frequent use of these rape myths and stereotypes deserves discussion.

What are the prevailing rape myths and stereotypes?

• Rape myths or stereotypes are widely held, false and prejudicial notions about rape, rapists, and the survivors of rape.
• The underlying assumption here is that ‘genuine’ victims/survivors of rape can be recognised by some common patterns of behaviour they exhibit.
• To begin with, they are expected not to put themselves in situations which, it is believed, might lead to rape.
• These are the situations that include anything that is seen as a social taboo for women.
• These may include drinking, partying, or indeed, as stated by the defence in the infamous Nirbhaya case, simply being out at night.
• The implication here is that willingness to participate in such activities is equivalent to consent to sex.
• Otherwise, engaging in social taboo is tantamount to inviting rape.
• Another common stereotype is that ‘genuine’ victims/survivors physically resist their assailants or shout for help.
• In Mahmood Farooqui v. NCT of Delhi (2017), the Delhi HC had held that the complainant’s ‘feeble no’, even when spoken, would not be sufficient evidence of lack of consent.
• The above case also repeated the widely held belief of Courts that where the victim/survivor had a past sexual history with the accused, her consent would be assumed.
• And so, any ‘unwillingness’ or ‘hesitation’ on her part would be disregarded.

What is the grave concern with these notions?

• These prevailing rape myths and stereotypes shift the burden onto the victim.
• The greatest evil thus is that they put the victim, rather than the accused and society, on trial.
• The focus shifts from whether the accused committed the offence or not to whether the victim/survivor’s behaviour met standards demanded by patriarchy.
• The focus is on the narrative that the victim/survivor could have avoided the rape, or indeed, asked for it.
• The blame is thus conveniently shifted from large-scale social and systemic failures to the victim/survivor herself.

What does the law specify?

• The rape law for adults in India was amended in 2013.
• The Criminal Law (Amendment) Act in 2013 widened the definition of rape and made punishment more stringent.
• It specifically states that failure to resist cannot be taken as evidence of consent.
• In fact, consent, whether verbal or non-verbal, has been defined to mean ‘unequivocal voluntary agreement’.
• The following cannot and should not be equated with consent to sex -
  1. passive submission (which may arise out of fear or deep-rooted social conditioning)
  2. acquiescence to non-sexual acts such as drinking together
• The Amendment also laid down that consent would mean willingness to participate in a ‘specific’ sexual act.
• Therefore, consent given for a particular sexual liaison cannot be read as ongoing consent, given in perpetuity.

What does this suggest of the justice system?

• The reliance on rape myths and stereotypes is painfully common in the Indian criminal justice system.
• Rape myths and stereotypes reflect the deeply entrenched patriarchal biases of those in India's criminal justice system and the society at large.
• Those tasked with implementing the legislation continue to put the victim/survivor on trial.
• This defeats the very purpose of making the legislation progressive or ‘victim-centric’.
• When used in judgments, they become a permanent part of the legal record.
• As precedent, they create a chilling effect for all future victims/survivors of rape.
• This makes the criminal justice system even more unapproachable than it is.

What is the way forward?

• It is impossible and unjust to have a universal script against which the behaviour of individual victims/survivors is assessed.
• Each person and each circumstance in cases of rape is distinct.
• India has abysmally low rates of reporting for sexual offences, and even lower rates of conviction.
• Given this, the continued reliance on such stereotypes is worrying.
• Expecting the survivors of rape to come forward knowing that they would be doubted every step of the way is highly unfair.
• The present case calls for urgent and renewed efforts towards sensitisation.
• The need of the hour is to make sensitivity in handling sexual offences part of India's judicial structure.

Source: The Hindu, The Wire