Rape laws are rooted in the landscape of misogyny where judges tend to blame the victim instead of the perpetrator. Courts have been seen to delve into the sexual activeness of a woman and give verdicts in favour of the accused on the basis that a woman who is sexually active or is a sex worker cannot complaint of being raped. Apart from this, the victim’s behavior, her habits, her dressing is what is pointed at, and the wrongful act, which is committed by the perpetrator, which is the entire basis of the case, is not even questioned. For the courts to rule a decision in the victim’s favour, her being a ‘perfect victim’ becomes imperative sometimes. A ‘perfect victim’ is one who says no clearly and often, fights off her attacker like a honey badger, and if she can’t get away, she continues to profess her non-consent throughout the encounter, ideally by shouting “no” and continuing to fight as best she can. To be a ‘perfect victim,’ one cannot accept a drink, engage in commercial sex or walk alone at night, one cannot wear tight clothes or have a criminal record, one cannot be human. What courts fail to consider is that every victim is prey to different circumstances, every victim is different and can have non-identical ways of coping with her issues. Everyone cannot meet the standard of a ‘perfect victim’ but even so, this patriarchal notion has been implicitly and repeatedly used in courts.
COURTS ON ‘PERFECT VICTIM’
In a 2020 rape case, Rakesh B. v. State of Karnataka, the Karnataka High Court pronounced an outrageous verdict which led to days of protest by activists and citizens questioning the courts whether there was a ‘rulebook’ or ‘guide’ to be a victim. While granting bail to the accused because he found the victim’s claims “difficult to believe,” the judge asked the victim why she had gone to the office at 11pm, the reason she did not object to consuming drinks with the accused and why she had allowed him to stay with her till the morning. The Supreme Court, in State of Punjab v. Gurmit Singh had observed that being murdered destroys the physical body of the victim, whereas being raped destroys the soul of the “helpless female.” On these grounds, it is seen that it is only an inconsolable victim who inspires confidence in her testimony, as also laid down in Kamalanantha v. State of Tamil Nadu. The Supreme Court in Raja v. State of Karnataka further held that since the victim was not “hurrying back home in a distressed, humiliated and devastated state”, it was “unusual,” and the veracity of her testimony was suspected. These notions of an ‘usual,’ ‘ideal’ and ‘perfect’ victim are deeply entrenched in the Indian society, which is further reflected in judgements, even the ones given by the apex court of the country. What do these notions lead to, except reinforcing the stereotypes of being a ‘good woman?’ The rape laws of India do not include protocols which a victim has to adhere to. It is only the precedents set by courts which include such glaring guidelines, which in no way matter in a rape case.
In 2021, the Supreme Court, as a reply to a shocking order passed by Madhya Pradesh High Court which directed the accused to go to the house of the victim and get a rakhi (thread tied by sisters on their brothers’ wrists in the Hindu culture) tied by her, laid down certain guidelines for all courts. One of these guidelines said that bail orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society and must strictly adhere to the requirements of the Criminal Procedure Code. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail. The court noted that myths regarding rape undermine the credibility of women who deviate far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way and reporting the offence immediately, among other things.
Despite the guidelines set by the Supreme Court, another appalling judgement was passed by a sessions court in Goa lately, wherein an accused was acquitted in a 2013 rape case. Tarun Tejpal, former editor-in-chief of the Tehelka magazine, was accused of raping a junior colleague in 2013 in a hotel elevator at an annual event organized by Tehelka in Goa. The court while pronouncing its judgement relied on certain patriarchal notions which had people all over the country enraged. The acquittal came despite the fact that Tejpal had sent an email to the victim, acknowledging that he did not have consent to perform sexual acts. The court, in lieu of the email by the accused, simply stated that it was not sent voluntarily and was due to the explicit pressure and intimidation by the prosecutrix, thus making it inadmissible under section 24 of the Indian Evidence Act, 1872. The court failed to consider the power dynamics between the accused and the victim. The accused was the victim’s boss, and thus, stood in a position of power. The allegation of her pressuring him in such a case seems almost impossible.
Moreover, in the verdict, Special judge Kshyama Joshi further held that the complainant “did not demonstrate any kind of normative behavior” that a victim of sexual assault “might plausibly show.” It was further observed by the court that it was “unnatural” on the part of the woman to message Tejpal about her location in the hotel where she was chaperoning a prominent US actor, again forgetting the fact that he was her boss. The trial for this case concluded after eight years, and it was only in 2019, six years after the crime, that the victim was cross-examined. The judgement focused extensively on the minor deviations in the victim’s statement and contained only a few extracts of the accused’s statements and discrepancies in them. From a plain reading of this judgement, it is apparent that the court did not base its verdict on the rape laws of the country as much as it focused on the imperfectness of the victim.
“REASONABLE VICTIM” – A BETTER APPROACH?
Due to its patriarchal nature, numerous scholars demanded a shift from the ‘perfect victim’ standard to the ‘reasonable’ standard. This was not considered as the best step, but it was considered better that the former. However, the reasonable victim or reasonable woman standard proved to be as problematic, because ‘reasonableness’ is often judged from the point of view of a dominant caste, class, cis-heterosexual male – a person who is statistically, much less likely to be subjected to gender-based violence. Due to this, his reasonableness and the victim’s reasonableness can differ greatly, and to be heard, the victim will have to act in a manner popularly considered as reasonable which circles back to the need of her being a ‘perfect victim.’ Furthermore, every person responds to trauma differently, and setting a standard like this one can lead to exclusion of subjectivity.
The need for a rape victim to be a perfect one, that is, to dress “properly,” to not engage with men, to not drink, to shout when she’s being raped, is not only impractical and patriarchal, but also deviates from the purpose of the law which is to try to protect women and punish their perpetrators. This idea of being a ‘perfect victim’ does not in any way prove or disprove that the guilt of the accused. Delving into these notions, the court simply projects and reinforces problematic stereotypes and prejudices present in our society.
Author(s) Name: Anshita Sethi (Student, Jindal Global Law School, Sonipat)