Gender

Supreme Court’s Expectations of ‘Usual’ Behaviour After Rape are Misguided, Say Lawyers

A recent apex court judgment has raised eyebrows for several reasons, including its perceived bias against sex workers.

Supreme Court is pictured through a gate in New Delhi, India May 26, 2016. REUTERS/Anindito Mukherjee

Supreme Court of India. Credit: Reuters/Anindito Mukherjee

New Delhi: The Supreme Court’s judgment last week in  a case of gang rape has raised several questions not so much because of its verdict – it acquitted the convicts and disbelieved the woman – as for the language and reasoning used by the judges.

The case pertains to an allegation of rape by a woman in Bangalore 19 years ago. While the sessions court had acquitted the three men accused, the Karnataka high court later sentenced them to life imprisonment. The Supreme Court has set aside the high court judgment and set free the accused, citing reasons including inconsistencies in the woman’s statements, hostile witnesses and the medical report conducted after the incident.

The woman has said she works as a domestic worker, though a witness (her roommate) said she was a sex worker – leading the judges to treat the case as one where she was not paid her dues by the men, who were her clients.

In their order, a Supreme Court bench comprising Justices Pinaki Chandra Ghosh and Amitava Roy said:

“Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays [a] somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.

“Her post incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in and around the place of occurrence, enquired about the same from persons whom she claims to have met in the late hours of night, returned to the spot to identify the garage and even look at the broken glass bangles, discarded litter etc. According to her, she wandered around the place and as disclosed by her in her evidence, to collect information so as to teach the accused persons a lesson. Her avengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised. Her confident movements alone past midnight, in that state are also out of the ordinary.”

The court felt it necessary to bring up the woman’s actions and behaviour after the alleged incident, comparing them to what they see as ‘usual’ in that situation, in order to assess whether or not they think the incident occurred.

“I think what this judgment does, and this is extremely regrettable and unfortunate, is that it actually goes back to putting the spotlight on the conduct of the women victim, whereas the effort throughout the progression of rape law, including the recent amendment, has been that you have to look at the evidence other than the woman’s conduct as well, and also scrutinise the conduct of the accused,” lawyer Vrinda Grover told The Wire.

Understanding ‘usual’ behaviour

“These paragraphs are based on what the court thinks should be the reasonable conduct of a rape victim. Feminist legal debates in India have engaged with the vexed issue of who is a “reasonable man” in the eyes of law. Will a reasonable woman, act, behave, respond, conduct herself differently from a reasonable man? And if we agree that we have gendered experiences in society, then perhaps conduct that you would consider reasonable for a man may not necessarily be regarded reasonable by a woman. Here of course the situation is further compounded because the court is opining about the appropriate, usual and reasonable conduct of a rape victim. The very notion is highly problematic. To believe that there is a predictable way in which a rape victim will react is in itself a myth and a falsity. Our imagination I fear has been shaped to  a large extent by Bollywood cinema, which depicts rape as a fate worse than death. Whereas studies and documentation show that there are no laid out parameters of how a rape victim will react,” Grover continued.

“The court clearly thinks there is a certain way you should look after a rape,” lawyer Flavia Agnes told The Wire. “And this played an important role in their minds. I find that extremely problematic.”

It is impossible to have a blueprint of how someone will act after a sexual assault, Grover added. “The fact is that there is no usual response of a rape victim. There can be none, to an unusually horrific act committed by a man upon a woman. If I were to recall even in cases I have dealt with there is no standardised post rape behaviour. The notion that there is one is a falsehood, and displays a complete lack of understanding of the crime of rape and sexual violence. I think this is a major pitfall of the judgment – that she is not performing the part of the rape victim, as scripted in judicial imagination.”

Sex work in Indian law

In previous cases, the Supreme Court has ruled on occasion that a man who sleeps with a woman on the promise of marriage can be charged with rape. In this case, where the court is alluding that it is a case where a sex worker has not been paid her dues, the ruling suggests that this particular broken promise does not classify as assault.

Lawyer Deya Bhattacharya, writing in Firstpost, has argued that this judgment is based more on morality than on legal reasoning. “The ruling is appalling to say the least, especially when it is founded on the good woman/bad woman dichotomy, and finds no footing on legal reasoning.”

“Sex workers remain in the twilight area of legal policies and legislation in India, wherein the silence of the law on the identities of sex workers has resulted in more violence in both public spaces, by law enforcement officials, and private spaces, by clients, pimps and partners. In addition to this, societal standards that forcefully fit women into a binary system, in which women are either idolised or demonised pervade through all structures and institutions; even the judiciary writes them off as “women of loose morals”. Unfortunately, this thinking also leaves sex workers no representation over a criminal law against rape that should apply to them, in spite of what they do for a living,” she continued.

Agnes said the judges’ bias about sex workers comes through the judgment. “They seem to think sex workers cannot be raped. And if she was a sex worker, and it is true that they haven’t paid her, why is it okay to let her be exploited in such a manner? If they have not paid her, some injustice has happened to her and that is not being addressed by the court. Sex work is not illegal in India, she hasn’t broken any laws.”

The court’s bias against sex workers showed in their interpretation of the evidence, Grover added. “Another regrettable aspect of this judgment is the way the medical examination is interpreted. The medical examination, according to the judgment, said that woman was accustomed to sexual intercourse. Protocols issued by the Union health ministry in 2014 say that we do not know whether a rape victim is habituated to sex or not. If the examination report mentioned this, the court should have sent out a clear signal saying it does not matter if she is habituated to sex or not. It is not relevant to the case. It is only about this specific sexual interaction and whether it was with or without consent.”

When talking about the woman being accustomed to sex, the judgment also says the “medical opinion that she was accustomed to sexual intercourse when admittedly she was living separately from her husband for 1 and 1⁄2 years before the incident also has its own implication”.

“The report also says that there is no sign of forcible intercourse even though it is a case of gang rape,” Grover said. “WHO statistics and various studies have repeatedly said that the absence of injuries is not equivalent to the lack of resistance. As for this ‘implication’ the court is talking about, why are they not spelling it out? They are bringing in the idea of the ‘loose’ moral character of a woman because she has sex with men other than her husband, supporting the idea that she is a sex worker. The reasoning behind this case is extremely regressive.”

Courts haven’t always ruled in this moralistic manner when dealing with a woman who may be a sex worker, Grover continued. In State vs Deepak & Ors decided by sessions court judge Kaveri Baweja in 2014, the judge said that being a sex worker had nothing to do with the victim’s allegations of gang rape. “The accused had taken the plea she was a sex worker and illegally living in India (the woman was from Rwanda),” Grover said, “and wanted to implicate them in a false case so that she could stay in the country.”

In that case, Baweja ruled:

“It may be reiterated that simply because the victim was working as a sex worker before the incident in question, does not confer any right upon anyone to violate her dignity or to rob her and can certainly not be a ground to award lesser than the minimum prescribed punishment.”

Since, as Bhattacharya wrote, sex workers “remain in the twilight area of legal policies and legislation”, much is left to the interpretation and attitude of the judge, leading to contrasts like the one that can be seen in the two cases mentioned.