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Know What? Inability to Prove Rape in Court Doesn’t Make it “Fake”

Why didn’t the Supreme Court condemn the use of the heinous two-finger test on the survivor?

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Radha’s* husband Gokul* didn’t speak to her for a year and a half after her rape. Simply because he couldn’t believe she had been raped – he thought she’d entered into some sort of arrangement with her alleged rapist (an upper caste Gujjar). He wasn’t the only one. The trial court didn’t believe her either, and most others discredited her testimony until the Madhya Pradesh High Court accepted her appeal against the trial court’s ruling.

Meera* told The Quint that her husband had believed her.

Also from Madhya Pradesh – from a different town called Dewas – she was allegedly raped by her neighbour, an upper caste mandir ka pujari who detested her Dalit family living at such close quarters to him. She claims he raped her one night whilst her husband and kids were away, and that she was ridiculed and nearly turned away in the subsequent stages of filing an FIR and a medical exam.

Meera’s case, too, stands in the stages of appeal at the HC after a trial court acquitted the pundit.

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Guess why their claims weren’t upheld by the district courts? Because a heinous two-finger test had been conducted on both to check the “laxity of their vaginas” in order to establish if they were virgins and were, therefore, raped.

Guess why we bring this up today? Because the Supreme Court, on August 22, on very similar grounds, acquitted two men of charges of rape – making one very pointed judgement – that this was a “false allegation”, aka, a fake rape case.

Were Radha and Meera’s also, then, fake rape cases based on the counters that the Supreme Court provided? Let's take a look –

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I.

What the Court Said:

The SC’s first rejoinder was that no semen stains had been found on the vaginal swab of the survivor, nor on her salwar. This, after the prosecution had already, in 2015 – through the examining doctor’s testimony in the HC – established that she had taken a bath right after and washed her clothes and undergarments. She had also undergone the medical test four days after the rape – which would make the possibility of semen detection harder.

Here’s What Happened in Another Case:

It isn’t just the number of days, however. Meera was menstruating at the time of her rape – so, even though her exam had been conducted within a 24-hour window, certain factors – like whether the assailant ejaculated, whether he has a low sperm count, or whether the woman was menstruating – can affect the results of the exam.

In such a case, a second test must always be conducted. That second test had not been conducted in Meera’s case.

Was the SC really so surprised then, that semen had not been detected?

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II.

What the Court Said:

The Supreme Court made yet another disconcerting observation when it said,

Looking to the above evidence, it is amply clear that the case of the prosecution, as made out, appears to be artificial and concocted. It may not be probable to commit rape in one’s own house in front of the sister, children, wife and mother.

How did it arrive at such a conclusion?

What Happened in Another Case:

When this writer was reporting the rape of an 8-month-old baby in north Delhi earlier this year, it was found that the baby had been raped and abandoned in her own room, on her own bed, by her own cousin, while her own relatives milled and swished about in the rooms next-door, none the wiser.

Is the court really that immune to news of the multitude of cases where perpetrators are members of one’s own family?

And then there was Radha herself – who recounted her rape to have happened while her in-laws slept in the next room of their mud house. Mud. Easier for sound to pass through than walls of concrete and streets of asphalt, you’d think?

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III.

What the Court Said:

…As there are no injuries on the body of the victim…it appears that the prosecution had cooked up the story…
Supreme Court Judgement

Not exactly how it works. For one, in this particular case, the survivor had mentioned that her hands had been tied to a cot and she had been too scared to offer resistance when her uncles (remember, she was only 15) assaulted her. The fact that survivors often freeze at/during the time of forced sexual assault is a well-documented one – how could her fear be discounted?

For another, the absence of injuries is in NO WAY an invalidation of sexual assault.

What Happened in Another Case:

When Smita* was allegedly raped by her former boss for the first time, she remained numb through the process – she’d told this reporter. She simply couldn’t believe someone she was in love with could force sexual assault upon her. “After a point, I just gave up and waited for it to be over,” she’d said.

There were no injuries.

Ironically, the second time he (allegedly) raped her – she’d been lured by him to visit him at a hotel – he “mauled” her “like an animal – were her exact words to this writer. There were many, many injuries.

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IV.

What the Court Said:

Also, how could neither court (trial nor apex) have mentioned the now-banned and utterly heinous and intrusive two-finger test that was conducted on the survivor? These are exact lines from the judgement –

The vagina of the victim permitted two fingers. However, the doctor observed the absence of hymen and did not mention the age of tear of the hymen because the tear was old.

The 2011 judgement also makes mention of this, but let’s excuse that travesty here, since the SC didn’t hold that the test violates a woman’s right to privacy until May 2013. But now, considering that the test is banned, why did the ruling have to bring that up like it matters?

Several cases actually do not see a conviction simply on the basis of that test – which is why, the text of the ruling could've been more responsible.

What Happened in Another Case:

In Meera’s case, the district court had given the accused the benefit of doubt just on the basis of inconclusive findings – which included the test. Ashif Sheikh – Founder of NGO Jan Sahas that had been helping Meera – had told this writer at the time.

The judge had also mentioned in court that it was surprising her husband hadn’t been there at the time of the rape!
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The rejection by a higher court of previously presented arguments by a rape survivor does not automatically make her case “false” or “fake”.

While the lacunae in the SC’s judgement is itself problematic, it was made worse by DCW Chairperson Swati Maliwal’s tweet...

...and The Times of India’s presumptuous headline (that Maliwal tweeted out).

What everybody outraging against the ‘fake rape case girl’ has forgotten is that they’re just making it harder for the next survivor who pigeonholes her rape away in a box in her mind because people probably won’t believe her.

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(* Names changed to protect identities)

(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)

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Topics:  Rape   Nirbhaya   Sexual Assault 

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