High Court Shames Survivor While Suspending Rape Sentences Of 3 Students

Posted by kyra dcunha in Gender-Based Violence
September 21, 2017

The High Court of Punjab and Haryana order dated September 13, 2017, which has suspended the sentences of the convicts Hardik Sikri, Karan Chhabra and Vikas Garg, former students of Jindal Global University, Sonipat, Haryana, has left many furiously helpless at the blatant, baseless character-assassination of the survivor by the learned judges and the defence counsel.

Their selective use of rhetoric, which avoids vulgarity to mask the horrors behind their beliefs, viciously attacks the survivor on irrelevant and inhumane grounds. The obsession of our judiciary with the use of sophisticated, flowery language does not negate the fact that the ‘misadventure stemming from a promiscuous attitude and a voyeuristic mind’ was apparently a reason for the judges to order a suspension of the sentence of the accused. The paternalistic tone of the judgement, coupled with the affectionate chiding of the accused, is particularly alarming.

The judges even went so far as to group the survivor and the perpetrator in the same category, when they said, “What is equally worrisome is how to retrieve the youth who have dragged themselves and their families into an abysmal situation, be it the victim or the perpetrators.”  In addition to being morally repugnant, this statement is self-contradictory in itself because both cannot be held guilty at the same time.

The emphasis on the fact that the survivor did not initially report the accused to the college authorities or her parents, is problematic for three reasons:

1. Her silence does not, in any way, change the truth of the crime or her credibility as a witness.

2. The judgement did not take into account the potential mental trauma that could have effectively prevented her from reporting.

3. The underlying assumption that it is necessary to reveal each and every detail of one’s life to their parents, just to make sure that youngsters toe their line at all times, is problematic.

In a similar manner to which the order put the survivor was put in the same category as the accused – the relationship of the survivor with her friends and acquaintances and her prior usage of cigarettes, condoms and alcohol was put in the same bracket as her ‘experimentation in sexual encounters’. These, the judges felt, were factors which would offer ‘compelling reasons to consider the prayer for suspension of sentence favourably’.

Her consumption of cigarettes and her habits have little or no bearing on the behavioural aspects of her ‘sexual encounters’. The judgement struck a low-blow to humanity when it was held that the crime was not ‘gut-wrenching’ enough to hold the accused liable. Does this imply that the law contains various ‘degrees of rape’ which will determine the culpability of the accused – where only the gravest incidents are punishable, failing which, every rapist may go scot-free, merely because the crime was not gruesome enough for the law’s tastes? Where have these elusive thresholds been given in the law? Who is the law to quantify the suffering of one over the other?

The rape of a priest is no different than the rape of a sex worker. The rape of a promiscuous individual who allegedly ‘asked for it’ is no different than the rape of a chaste individual who got raped despite her impeccable behaviour and character.

Rape involves the non-consensual and forcible imposition of an act of penetration by the accused on the survivor. This is basic criminal law. This is what has been drafted in the law. The law does not say that the victim/survivor can only be a haloed, virginal, rosary-twirling traditional woman down the street. The law does not say that the victim cannot be the woman who has had sex in the past and dares to wear mini skirts in the bar. The law says that the victim/ survivor is one who has been forced to engage in intercourse against their will. There is no ideal victim. Rape is rape. Period.

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