Victim's dress 'provocative', said Kerala judge; yet again, a court lets women down

Time and again, Indian courts have made shocking and regressive statements before granting bail or acquitting a person accused of committing a crime against women.

There have been shockers that have made headlines, such as: It is ‘unbecoming of Indian women to go to sleep after being raped’; a 2016 Supreme Court order in a gang rape case  which stated that the victim’s behaviour was ‘not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct’. The court made this assumption because the victim stayed to collect evidence, ‘instead of hurrying back home in a distressed, humiliated and a devastated state’ — this meant she was not looking for justice but vengeance.

 ‘Sexually provocative’ dresses

Our courts, however, continue to make outdated patriarchal statements that completely erode the rights of women. The latest case involves the verdict in the bail application of an alleged sexual assault victim – a 74-year-old writer and activist Civic Chandran. While granting him bail, the Kozhikode sessions court said the offence under Section 394A was  prima facie not valid since the woman ‘wears sexually provocative dresses’ and also because she delayed in filing the complaint.

This incident had occurred at Nandi beach near Koyilandy in February 2020, and the counsel for the accused argued that the case was registered six months after the incident happened and the complainant should explain the delay. The accused had submitted some photographs of the woman he had taken from her social media account with his bail application.

Also read: Recalling Bilkis Bano: Horrifying rape and murder case that shook India

The Kozhikode sessions court order stated: “The photographs produced along with the bail application by the accused would reveal that the de facto complainant is herself exposing in dresses…So, Section 394A prima facie will not stand against the accused.” The court also could not believe that the disabled author was in a position to forcefully pull the complainant onto his lap and press her breasts.

After hearing the arguments for a few days, principal judge S Krishnakumar granted bail to Chandran, as the prosecution evidence was prima facie insufficient. This happens to be the second sexual harassment case registered against the author.

Also read: Has death penalty helped rape survivors? There’s no empirical evidence either way

Casting aspersions on victim 

This is not the first time a court has cast aspersions on the rape complainant, just stopping short of going down the well-worn trope that she ‘asked for it’.

In 2017, the Punjab and Haryana High Court had suspended the sentences of three OP Jindal Global University students granted by the trial court for the rape of another student. The basis being the victim’s “misadventures and experiments”, her “promiscuity” and the absence of brutal violence accompanying the sexual assault.

It did not matter that the victim was blackmailed and raped multiple times, over a period of 18 months, by the prime accused. However, the court’s judgment stated “it would be a travesty if these young minds (the accused) are confined to jail for an inordinate long period.” 

The bench squarely blamed the victim for the crime, going so far as to say that her mind was “perverse” like one of the rapists and she had a “promiscuous attitude and a voyeuristic mind”. The court declared that she smoked, her hostel room had condoms, she consumed drugs, and constantly equated her conduct with that of the rapists. 

Consequently, a petition was started on Change.org against the high court’s ‘regressive’ judgement. The SC stayed the order.

But, a year earlier, the SC reversed the verdict of a high court in the Raja v State of Karnataka that had sentenced three men for gang rape. The SC  concluded that the victim’s behaviour was “not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by normal human conduct.”

According to the SC, she was not “hurrying back home in a distressed, humiliated and a devastated state”, it was “unusual” and the veracity of her testimony was suspect. In fact, looking around for evidence at the location of the alleged crime was seen as pointing to her “vengeful” character.

Going to sleep after rape

In 2020, there was a hue and cry when a Karnataka HC judge passed a statement that it is ‘unbecoming of Indian women to go to sleep after being raped’, while granting anticipatory bail to the accused. Questions were raised about the need for such a statement and whether it was right on his part to do so. Justice Dixit also questioned the victim for going to her office late at night, and having a drink with her offender. The judge did remove the words from the official judgement, but the offender was still granted bail.

Obviously, an ideal rape victim is one who abides by traditional gender roles; the “good” girl is likely to be telling the truth, while a woman who defies traditional gender roles is deemed untrustworthy.

In yet another distressing case involving students, in 2021, the Guwahati HC had granted bail to an IIT-Guwahati student on the grounds that though there was clear case against the accused, both the victim and the accused were “talented students” and the “state’s future assets”.

According to the FIR filed by the victim, the accused had “lured” her to discuss her role and responsibility in a college club. She alleged that he had made her “unconscious” by “forcibly administering alcohol” and then “raped” her. A senior doctor at the Guwahati Medical College and Hospital had termed it a “serious case of sexual assault”.

No skin to skin contact

In January 2021, the Nagpur bench of the Bombay HC acquitted a man of sexual assault of a minor. The court argued that pressing the breasts of a child over her clothes without direct ‘skin to skin physical contact’ does not constitute “sexual assault” under the Protection of Children from Sexual Offences Act (POCSO).

The verdict, which was widely condemned, was delivered by Justice Pushpa V Ganediwala, who observed, “As such, there is no direct physical contact i.e., skin to skin with sexual intent without penetration”. The case involved a 12-year-old victim who the accused had taken to his home on the pretext of serving food. Once there, he locked her in the room, attempted to remove her clothes and groped her breasts. Justice UU Lalit in November 2021 stayed the verdict, noting that the act of touching the sexual part of the body or any act involving physical contact, if done with sexual intent, would amount to sexual assault within POCSO.

Mediation and planting trees

Sometimes, the judiciary too tends to adopt an avuncular role in such cases, asking the rapist if he wants to marry the victim. The rapist is given a chance to “reform” in a magnanimous gesture without a thought for the victim. In 2015, the Madras High Court asked a rape convict, who had applied for bail, to ‘mediate’ with his victim (a minor) as a “free man”, outside of jail. 

Since the victim bore a child out of the incident, Judge Devadass had believed, as written in his statement, that this was a “fit case for attempting compromise between the parties”. The Supreme Court had to intervene to get the bail cancelled.

On 8th November, 2021, the Gwalior Bench, presided over by Justice Anand Pathak, granted bail to an 18-year-old accused. The bail was granted because the accused was a young boy sans a criminal record and the court wanted to give him a chance for course correction. The bail bond was of₹50,000 and required the accused to plant fruit bearing trees and to fence trees and care for them in his locality as part of his community service.

As women continue to be subjected to increasing violence in several forms, is it unrealistic to expect the judiciary to be sensitive to their concerns?