New Delhi: If a complainant in a rape case says she was tired and fell asleep after the ‘incident’, does it make her complaint against her alleged violator less credible?
Justice Krishna S. Dixit of the Karnataka high court thinks so.
“The explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep,” the learned judge wrote in his order on June 22 in Sri Rakesh B vs State of Karnataka, “is unbecoming of an Indian woman; that is not the way our women react when they are ravished.” He then went on to grant anticipatory bail to the accused.
What makes Justice Dixit’s logic all the more disturbing is that the trial in the case is not yet over. The judge’s order has made a brief but wholly unnecessary reference to the facts of the case in order to justify the grant of anticipatory bail and was not accompanied by the usual qualifier that the observations made in this context would have no impact on the proceedings of the trial court.
According to Justice Dixit, the complainant’s version that she was subjected to rape on the false promise of marriage in the given circumstances of the case is difficult to believe at this stage; there is a letter allegedly written by the complainant to the effect that she was ready to withdraw the complaint if a compromise is brought about, especially when the complainant had employed the services of the petitioner since last two years or so; nothing is stated by the complainant as to why she did not approach the court at the earliest point of time when the petitioner was allegedly forcing her for sexual favours.
Justice Dixit continues:
“Nothing is mentioned by the complainant as to why she went to her office at night that is, 11.00 pm; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep , is unbecoming of an Indian woman; that is not the way our women react when they are ravished.”
Justice Dixit adds:
“The version of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car, even if it is assumed to be true, there is no explanation offered for not alerting the police or the public about the conduct of the petitioner.”
Why Justice Dixit’s order is problematic
Justice Dixit may well be correct in his grant of anticipatory bail to the accused with strict conditions, violation of which will lead to the cancellation of bail. But given his observations on the merits of the case which have no bearing on the grant of anticipatory bail to the accused, one wonders whether the accused would be aggrieved at all with the bail conditions.
If, as Justice Dixit has reasoned, anticipatory bail can be granted with conditions in order to secure the presence of the accused for investigation or trial, and if the COVID-19 pandemic poses the threat of infection to detenus in prison, there is no reason why he, as a judge, should have concerned himself with the merits of the case while granting bail.
Stereotyping and myths, the bane of rape cases
Judges who resort to stereotypes believe that a typical victim reacts to rape in a particular way. They do so in order to test the veracity of the victim’s version. Therefore, it is not surprising that Justice Dixit too believes that a rape victim could not have felt tired and fallen asleep after the “incident”.
Justice Dixit is not keen to know whether the incident of rape could make a victim tired, and her sheer helplessness could leave her with no option but to fall sleep. Justice Dixit’s inability to imagine this possibility leaves him to rely on traditional conceptions of an “Indian woman” as he understands – as if all Indian women, if raped, would behave in a particular way, and that being tired and falling asleep are not part of their behavioural attributes.
In his book, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (2017), Professor Mrinal Satish explains how the site of stereotyping shifted from the stage of guilt adjudication to the sentencing phase of rape trials, after parliament in 2002 repealed section 155(4) of the Indian Evidence Act (IEA), through which the defence could bring evidence of the “general immoral character” of the victim.
The Indian Evidence (Amendment) Act of 2002 inserted a new proviso to section 146 of the IEA. Section 146 deals with questions which are lawful in cross-examination. Sub-section (3) of section 146 permits posing of questions to a witness during cross-examination to shake their credit, by injuring his or her character, although the answer to such questions might tend to incriminate them or might expose him or her to a penalty or forfeiture.
The newly inserted proviso to section 146(3) makes it clear that where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.
According to Satish, since the law now prohibits some of the rape myths and stereotypes being used in the guilt adjudication phase, courts started using them in the sentencing phase. Hence, the marital status of the victim, whether she was a virgin or not, whether she had resisted the attack, her relationship with the offender, all started negatively impacting the sentence imposed on the man convicted of raping her.
Justice Dixit’s use of stereotypes at the stage of granting anticipatory bail makes one wonder whether Satish’s concerns about the sentencing process being influenced by myths and stereotypes may well apply to the pre-trial stage too, and thus the adjudication itself indirectly.
Satish told The Wire that it was completely unnecessary for the judge to have displayed his stereotypical understanding of the issue for granting anticipatory bail. According to him, thanks to legal reform, the number of instances of judges relying on stereotypes and myths about the victims is coming down, but there are aberrations at every stage, whether it is adjudication, sentencing or appeal.
Therefore, he says, it is time to have conversations to change that mindset. After all, the judges who express such stereotypes do so because the lawyers have resorted to them in the first place during their arguments, he said.
While such conversations are indeed useful, activists may urge the chief justice of the high court not to assign Justice Dixit cases involving rape allegations, because of his open display of belief in stereotypes and myths concerning the victims, which could disqualify him in deciding cases in accordance with law.