A patriarchal society always treated women like they are the only reason for their abusers act.as sexual abuse and sexual assault has been increasing against women in the country, victim blaming of women has been a trend in courts just like how the society made it on the women. Even though the apex court and High courts warned the judges against analyzing character and dressing style of women in sexual abuse and rape cases, most of the judges still continues this unethical behavior. For the past years the judges made numerous remarks on victim that not only lead to effect the mental health of victim but also was the reason for granting bail to accused. Out of 50 judgements of supreme court in sexual assault cases which studied by NLU Delhi, in which 18 cases of judgements was filled with gender insensitive comments on victim and stereotypical comments was there in 11 cases. We will get an incite of this when we go through some of the judgements of rape and sexual assault cases led by several courts in India.
Judges emphasizes on victims conduct rather than accused
on October 4 ,2016 in Raja vs State of Karnataka the supreme court granted bail to accused in a rape case on the ground of the victim’s conduct during trial. According to the bench the victim was not acted as how a rape victim should have acted. “Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays 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[1], if judged by the normal human conduct”, the bench held. They also questioned her courage to go and collect information to teach the accused a lesson after the incident as noticeably unusual of victim. They wanted the victim to act like terrified, helpless, distressed not in the way of showing the confidence to get her justice done. Later On, they turned a rape to just a sexual intercourse in all way. There are only less cases in which victim shows the courage to stand for her and trying to bring the guilty ones in eyes of law. It’s because they don’t have much trust in judicial system and scared of society judging her. When she showed the courage here it was unusual to court as a rape victim doesn’t behave like this normally.
when the court blaming the women for her dress
In 2022 the session court of Kerala granted bail in a sexual harassment case to accused named civic Chandran who is an author in Kerala. What was found shocking that the judgement made by the court. “Section 354 of Indian pineal code that criminalises outraging of a women’s [2]modesty is not applicable to a complainant if she was wearing a sexually proactive dress. In order to attract this Section, there must be a physical contact and advances involving unwelcome and explicit sexual overtures. The photographs produced along with the bail application by the accused would reveal that defacto complainant herself is exposing to dresses which are having some sexual provocative one. So, Section 354A will not prima facie stand against the accused.” The court placed blame on the victim, rather than the perpetrator, for the harassment. This is a common tactic used to excuse or justify sexual assault which is deeply harmful to victims. it perpetuates the stereotype that a woman’s clothing is a sign of her sexual availability or consent. It suggests that women are responsible for controlling the actions of men and that they are only to blame if they do not dress appropriately. It has been a long time we are hearing such kind of comments on women. but it’s not acceptable when a bench of judges doing it since they are expected to act like a prudent man who should be very careful with his words. They could just normalise sexual assault by mentioning she is asked for it. A patriarchal society always believed that women is the only reason if any one misbehaved to her. As of now court is just following their way by walking back to the nineties.
Character assassination by judge
Character assassination of women is another way of blaming the victim by court. In Vikas garg&ors vs State of Haryana, the court emphasized on the facts that victim used to smoke, consumed alcohol and her hostel room had condoms rather than blaming the accused. later the accused was granted bail and the bench narrated her with a “promiscuous attitude” and “voyeuristic” mind. It’s like they are conveying that they won’t accept it as[3] rape if the victim does not have the character which society wanted them to be. It’s just that we can’t differentiate the patriarchal society and court since both of them act within their own Illogical and unethical mind. it shifts the guilty on victims saying that her behaviour and character lead to raping her and it’s not the fault of accused at all. How they are deciding the nature of rape changes according to victims past conducts. a rape will not be turned into consented sex even she had any relationship with her accused.
When judges asking accused to marry the victim
One of the worst things which a judge acting in court is asking the accused to marry the rape victim. Desperately to say its not by any high court or lower court but by the supreme court. The apex court asked a man who was arrested for raping a minor whether he could marry her.
“If you want to marry, we can help you. If not, you lose your job and go to jail. You seduced the girl and raped her” chief justice of India S.A Bobde reportedly told the accused. How a crime will be white wash after marrying the victim. How it ceases to exist as rape when he marries her. Then all the rapists will normalise their acts as if they willing to marry the victim, then the guilty upon them will also be discharged. Even if it’s agreed by the victim, its only due to protect her so called dignity by her family and avoiding the humiliation of society. Because the victim and her family thought that they will get their social acceptance if the accused marry her. as patriarchy believes a family’s honour lies in women’s body always. They want to protect it anyway even if its with marrying her off with her abuser. But its so unfortunate when the judges acting in more patriarchal way than society. Instead of correcting the society they also support them by acting in an illogical way.
What impact the victim blaming make on [4]women
according to data that published by national health survey in 2021, 99% of rape cases go unreported. The conviction rate for rape cases in India in 2018 was low as 27.2%. desperately, 94.6% of women who experienced sexual violence in the past year did not seek help in India according to NFHS reports. Because the victims knew, even they reported there will be no much use since the conviction rate for sexual violence cases is very low. They can’t prove anything just because they narrated their story in court because court will get to start blaming on women and make the stereotypical comments. Most of the women who are not reporting their preparators are scared of the society because they will put all the blame on them. How victims could trust the law system when they also started acting like the society by asking useless questions like Why she was there at midnight, why she wore that dress., why she smoked? These character assassination and stereotypical comments leads victims to mental trauma and stigmatization that makes them to be silent about everything. The court tend to Digg into the past of victim for finding whether she had sexual intercourse with anyone regularly if she had then they could assume rape happened with her consent. Two finger test was the example of this case which testing a women’s virginity by medical practitioner after a rape happened. Fortunately, the supreme court in 2022 criticized the use of two finger test and strongly condemned it stating that if the victim had lost her virginity earlier, it doesn’t give the right to anyone to rape her. They urged the government to take immediate steps to cease the practice, removing it from every medical curriculum. They also warned the doctors that if they found practising it, they will be held guilty of misconduct.
We have to mention some positive judgements also that made by court in rape and sexual assault cases which leads a victim to gain the trust in courts.
In Aparna vs state of MP, advocate Aparna with other 8 advocate filed petition against MP high court which gave the bail to accused in a rape case on the ground of he shall visit victims house on Raksha Bandhan day and tie the Rakhi on her wrist. The apex court made clear that no compromise between accused and victim should not be taking place that diminish victim’s honour and dignity. Granting bail with the condition of tying Rakhi is not expected from a judge which cause the victim to lose the trust in judiciary. Also, the court warned lower courts to avoid use of patriarchal stereotype comments against victim, digging into the character and past conducts of victim which leads them to granting the bail to accused. As judges play a vital role society as their words and conduct during trial should be followed by lower court so they have to act as a prudent man. They should give importance to victim’s statement than the emphasising welfare of accused.
In Nikhil Sharma vs state of J&K[5], the apex court stated about the importance of court to be sensitive and careful in the case of rape victims as it puts on them a lot of societal stigma, lifelong trauma, shame and distressed feeling so it is unlikely to anyone charge false accusations on their accused. The court should have to take all these as consideration and act very carefully.
The apex court took Suo motu cognisance of Calcutta high courts judgment in 2023, which court observed that adolescent girls should control their sexual urges and not given in to “two minutes pleasure” to prevent being a loser in the eyes of society. The apex court warned the judges not to express an[6]y personal views stating that they were highly objectionable and completely unwarranted. The courts remarks came while it acquitted a young man who is convicted for raping a minor. The apex court also observed it as violation of rights adolescent girls as guaranteed under article 21 of the constitution of India. As it stated a trial will not be based on victims’ behaviour or conduct instead it is solely related to accused conduct.
Conclusion
Even when people lost their trust in any other organs of government, their hope in judiciary exist so far. Because they are the guardian of their rights and the gateway to get their justice done. So that judiciary have to behave very ethically and for welfare of people. When the judges start to act just like the society, there will be no use of law system. The duty to correct the society and punish them on their crimes is lies within it. Instead, when they support these guilty people with this kind of stereotypical remark, the people will not be trusting in judiciary. That’s when they start their own tactics to get their justice by violating the law. There has been a very great change in the society’s norms and culture which defining women’s life. Women now showing her confidence and courage in every field of her life throwing up the patriarchal norms. One of the main things to lead them in this journey is law in this country. Law gives the equal opportunities and rights to them. So, it is the court and judges who is upholders of this law have a unique power in their words which have to convey a positive impact in victims’ life, not damaging their hope through blaming them for their accused acts.
[1] Mehak Bajpai (2017) “Victim blaming by court” available at https://www.deccanherald.com/
[2] Indian Courts on female victims of sexual Crimes: Recent Developments- G.S.Bajpai and Preetika Sharma.
[3]End victim blaming available at https://www.centreforwomensjustice.org.uk last visited on January 18, 2022
[4] Gangoli G. (2007). Indian feminisms: Law, patriarchies, and violence in India. London, England: Ashgate Publishing.
[5] Deway S. (2009). “Dear Dr. Kothari … ”: Sexuality, violence against women, and the parallel public sphere in India. American Ethnologist, 36, 124-139.
[6]Jewkes R., Sen P., Garcia-Moreno C. (2002). Sexual violence. In Krug E., Dahlberg L., Mercy J. A., Zwi A. B., Lozano R. (Eds.), World report on violence and health (pp. 147-181). Geneva, Switzerland: World Health Organization..
Author: Shifa Parammal
Juris Centre 