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