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Why Does Our Legal System Demand A ‘Proper Victim’ And Jails A Rape Survivor?

TW: Sexual assault, child abuse.

A 22-year-old gang-rape survivor was arrested and sent to jail by a civil court in the Araria district of Bihar which charged her and two social workers for “causing unrest.” She had approached the authorities on July 6 to report the incident.

She showed up with Kalyani Badola and Tanmay Nivedita from NGO Jan Jagran Shakti Sangathan, who help victims seek justice, to record her statement. Police asked the social workers to be outside, but the survivor insisted on their presence.

The police accused them of blocking the proceedings, and FIR mentioned 353 (assault or criminal force to stop public servant from doing their duty). She had been sent to 14 days judicial remand. As per the Jan Jagran Shakti Sangathan’s statement, the survivor’s nervousness was mistaken as contempt and she was disturbed that her identity had been exposed. Since she did not have any support from her family, she wanted Kalyani Badola’s presence before signing anything, which is also her right as a citizen.

Representational image.

Now, 376 lawyers from across the country, including Indira Jaising, Prashant Bhushan, Vrinda Grover, and Rebecca John, had written to the Patna High Court chief justice regarding the harsh handling of this case. They noted that the survivor was yelling possibly after suffering a nervous breakdown due to the trauma and mental pressure. Currently, the survivor is facing brunt and her character is being maligned.

The letter said: “There is a need to infuse the incident with some sensitivity and view it from that perspective: it was the fourth day since the incident of gang rape. The survivor was completely distraught and also very disoriented. She was not eating or sleeping and was also in physical pain. In the course of the four days, she had had to repeat her experience to sundry personnel, often only for voyeuristic purposes.”

“We respectfully submit that any perceived disrespect must be viewed from this perspective. Victims and their caregivers deserve extra care and sensitivity. Rather than understanding the fragile state of the three people, they were first remanded in police custody. We submit that the remand into judicial custody is excessive and harsh given the circumstances. The survivor’s emotional state is extremely fragile and we fear that the separation from her caregivers and incarceration will have an adverse effect on her health.” 

As per the latest reports, the survivor has received bail. However, Kalyani and Nivedata continue to be in jail.

There are many things to reflect on there including the fact that the survivor was within her rights to have a confidant, her concerns about her identity being leaked, lack of support form the family, and the fact that all the perpetrators were not caught (at the time).

This year, I have read one case after the other where the survivor was at the receiving end of the trial along with the trauma, and how rampant rape culture is amidst authorities.

Violence against women and children is rampant. Despite the presence of strong laws, their ability to access them has to be looked at, unless the case becomes a national ‘sensation’, something that doesn’t happen a lot. Adding to that, if the people sitting in places of authority don’t exercise their powers correctly, and continue to display a culture that allows crimes like this to happen, then it makes citizens lose their respect for the system.

I know that people’s views on police and judicial system have changed since the P Jayaraj and Bennix case where the corruption was noticed amongst police, politicians, medical experts, and law.

Earlier this year, the Karnataka High Court granted anticipatory bail to rape accused after slut-shaming the survivor and questioning her for “falling asleep” after the rape which is “unbecoming of an Indian woman.”

In December last year, a rape survivor from Uttar Pradesh’s Unnao district was set ablaze by five men, including two who allegedly sexually assaulted her.

She attained 90% burns but lived long enough to give her statement to the police. She succumbed to her injuries afterwards, leading to much outrage across India because this was also reported after the Hyderabad gangrape case and murder case. It is to be noted that after the rape incident, one of the perpetrators was arrested and released on bail. Since then he had been threatening her and she had even gone to the police.

At the time, hundreds of questions and accusations were being circulated regarding the handling of the incident as well as the nature or validity of the rape case in itself. But, the fact is that before all the judicial proceedings took place, she died because the accused was given bail, and her life and safety were compromised.

This year, in Uttar Pradesh a 30-year-old man accused of raping a 17-year-old girl allegedly killed her and her mother by driving a tractor over them in Kasganj district. According to news reports, he had supposedly abducted and raped her in 2016 when she was 13 and he was given bail in 2017.

Today, I felt naseous while reading news about a Bombay High Court judge giving bail to a POCSO accused. In this case, Bombay HC judge, Justice Sandeep Shinde, granted bail to the rape accused, Dnyaneshwar Navghare. His reasoning for doing so is that survivor is “mature enough“, therefore the sex was consensual.

In a culture that holds women accountable for their safety and values her chastity more than her life, rape survivors have to face character assassination. Representational image.

Looking into the case of the prosecution, prima facie, I am of the view that the victim possessed the mental capacity to actively understand the nature, circumstances, and consequences of the (sexual) act to which she had consented,” he said.

A perpetrator is a married man. The survivor was as young as 14-years-old and as per the law, someone below 18-years of age cannot legally consent and the adult perpetrator will be charged for statutory rape. The fact that the judge disregarded this law under the Protection of Children from Sexual Offences (POCSO) Act, 2012, is horrifying.

A Kerala based priest who was sentenced to 20 years for raping and impregnating a minor, offered to marry the girl and take care of the child. The convict, who is over 50, even went to ask for bail so that he can prepare for the wedding. Thankfully, the Kerala government vehemently opposed it and I hope that the high court will disregard his plea and keep him in jail.

Rape Culture And The Expectations Of A “Proper Victim”

Image credit: Aasawari Kulkarni/Feminism In India

“A perfect victim is always a dead victim,” -Rose McGowan.

In a culture that holds women accountable for their safety and values her chastity more than her life, rape survivors have to face character assassinations, and all the burden is on her until her perpetrator is sentenced.

Now, even if there are concerns regarding false accusations, instead of focussing on facts that suggest otherwise, Karnataka HC chose to indulge in the “proper Indian woman” card to malign the survivor’s claims.

Since rape is always defined as an act of tremendous violence committed by a ‘stranger in the dark’ where the survivor is expected to scream out loud and fight for honour. This despite the fact that the Rape Law Amendment of 2013 explicitly states that failure to resist cannot be taken as evidence of consent.

She is expected to dress, talk, move, behave, and act in a certain to keep up the validity. Her self-respect is constantly questioned. Even when the facts are there, slut-shaming makes it to the top.

What Is Consent?

Consent, whether verbal or non-verbal, has been defined to mean “unequivocal voluntary agreement.” And, someone below 18-years of age cannot legally consent. And, since rape itself is a non-bailable offence, I don’t understand why the accused in a minor’s rape case is given bail, given the severity of the offence. Two of the above cases I have mentioned showed how the survivor’s safety was compromised, and how it cost a life.

India is going through a tough time as the third-worst affected nation due to COVID-19. It is no secret that women and children face the brunt more. If they face sexual violence then their inability to access proper judicial proceedings makes them more vulnerable.

Cases such as the Jayaraj-Bennix custody killing and George Floyd have already conjured a lack of trust towards the police.
In both, the 2012 Delhi rape case and Hyderabad case, police carelessness were cited.

There should an urgent push for sensitisation and reformation of the judicial system so that sexism, slut-shaming, or victim-blaming is not perpetuated in any way, even in the context of a false case. Instead of making it a nerve-racking scenario for the survivors and their families, the criminal justice system should be reformed in terms of handling the situation.

The onus should always be on the perpetrator and those who let the crime happen, never the victim or survivor. Representational image.

The Nirbhaya fund should be utilised to make legal proceedings happen faster and more effectively. More than anything, the survivor’s safety should not be compromised in any manner. Rape cases involving children should be handled with more sensitivity, and there should be no doubt whatsoever that an adult should face accountability for statutory rape.

On a personal note, I have written and argued more about the need for a change in attitude so that incidents like sexual assaults don’t happen at all, and we are not forced to have conversations like this. But it happens inside our homes and outside, at night, during the daytime, in schools, in transport, everywhere, when someone just decides to rape. The onus should always be on the perpetrator and those who let the crime happen, never the victim or survivor.

Featured image for representation only.
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Let’s Talk Period aims to change this by

Find out more about her campaign here.

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