There is little doubt about what rape is. Its legal definition was updated in 2013 to account for changing social realities; some would say to align with common sense. But what about those implementing this more liberal law? Has the system kept up with the law?
Recent orders by the Punjab & Haryana High Court and the Delhi High Court have triggered a debate on whether our judicial system is able to understand the power dynamics of rape and aspects of sexuality.
Rape = Result of a Promiscuous Attitude and a Voyeuristic Mind?
“… A careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind.” The “misadventure” the learned Punjab & Haryana High Court Judge refers to is the rape and blackmail with nude photos of a girl student at the OP Jindal University. The three accused – final year students at the same university in Sonepat, were convicted by a trial court in March 2017.
On 13 September 2017, the Punjab & Haryana High Court granted bail to all the three accused, and in a 12-page order noted:
We are conscious of the fact that allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind. She states that “he (Hardik) then sent his own nude pictures and coaxed me into sending my own nude pictures”.The Punjab & Haryana High Court
“Feeble” Objection = Consent?
A slightly more apologetic, yet equally regressive line was taken by the Delhi High Court on 25 September, when it gave the benefit of doubt to Mahmood Farooqui and acquitted him of raping a 30-year-old American scholar.
It remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the consent/will of the prosecutrix and if it was without the consent of the prosecutrix, whether the appellant could discern/understand the same. Under such circumstances, benefit of doubt is necessarily to be given to the appellant.The Delhi High Court
Both the High Court judgements have been criticised by senior lawyers who feel that such rulings set a regressive precedent.
Speaking on the Punjab & Haryana High Court bail order, Kamini Jaiswal, senior lawyer, pointed out:
I feel such orders do set a bad precedent, and I hope they are soon corrected by the Supreme Court.Kamini Jaiswal, Senior Lawyer
Past (Sexual) History
In both the orders, the judges have pointed towards the relationship that the victim shared with the accused.
The Punjab and Haryana High Court said:
The National Crime Record Bureau (NCRB) data of 2015 reveals that in 95 percent of all rape cases, the offender was known to the victim. Out of 32,328 reported cases, only in 1,478 cases was the accused not known to the victim.
The question is, should Judges even consider relationships/acquaintances/friendships as a factor when deciding on matters of rape?
Unfortunately, our judicial system has not moved forward like the women of today. Every rape will get validated as most rape cases have this complicated background of past history of some sort. The judiciary should grapple these facts and separate grey area from black and white areas.Rebecca John, Senior Lawyer
Is the Victim's Testimony Not Enough?
The trauma of rape is made worse by reliving the experience through repeated statements in the course of getting justice. Every rape survivor undergoes this plight if she/he is old enough to narrate the incident.
Legally speaking, a statement recorded before the Magistrate is admissible evidence. And, if the victim retracts their statement, they can face perjury.
The question now remains – can the victim’s statement under oath be considered a strong enough evidence in a rape case if it is supported with corroborative evidence?
For example, in the Mahmood Farooqui rape case, the victim produced corroborative evidence with her statement before the Magistrate. The judgement said:
In the Punjab and Haryana High Court bail order, it is mentioned that the victim had testified before the Magistrate that she was not only raped several times but also blackmailed by all accused. It said:
In both the cases, the victims, through their testimony, confirmed the evidence that they were forced into sex without consent. What other evidence would a court need to rule rape?
If the victim in her statement has stated that she was raped and supportive evidence, then the onus is on the accused to prove that it was not a rape and the sexual intercourse happened on a mutual consent.Rebecca John, Senior Lawyer
Character Assassination in the Name of Judgement
The Punjab & Haryana High Court, in its bail order, chose to speak more about the character of the victim than on the evidence in the case and went on to use strong adjectives against the victim.
...it prudent to refer to the statement of the prosecutrix and her cross-examination in extenso to gain and give an insight into the immature but nefarious world of youngsters unable to comprehend the worth of a relationship based on respect and understanding. The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.Punjab & Haryana High Court
Was it at all necessary for the Judges to use words like ‘promiscuous’ and ‘sexual escapades’ for the victim? Instead of delving into her sexual history, shouldn’t Judge have looked into whether granting bail to the accused would endanger the life of the victim?
That’s absurd to character assassinate a woman. What does the Judge mean by the word ‘promiscuous’? We are living in an open society.Kamini Jaiswal, Senior Lawyer
Though not directly disparaging the character of the victim, the Delhi High Court too made its own regressive comment. It said:
Instances of woman behavior are not unknown that a feeble “no” may mean a “yes‟. If the parties are strangers, the same theory may not be applied. If the parties are in some kind of prohibited relationship, then also it would be difficult to lay down a general principle that an emphatic “no” would only communicate the intention of the other party.The Delhi High Court
If this is grounds to acquit a rape accused, then has it become time to define what the right decibel level of ‘No’ should be?
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