Why we should stop women trial in rape cases | Economic Times

How far we haven’t come. For all the supposed awakening that #MeToo was, here we are with the same moth-eaten script that casts women as liars when they report rape. The Goa court judgment that acquitted former Tehelka editor Tarun Tejpal of sexually assaulting a junior colleague is a classic specimen of victim-shaming.In the Mathura rape judgment in 1979, policemen who raped an adivasi woman in custody were let off because the victim was “habituated to sex”, and had not resisted forcefully enough. The uproar over that led to an amendment where a woman’s sexual history was off-limits for defence lawyers. Now in 2021, the Tejpal verdict quotes many judgments that warn against using a woman’s behaviour or personal life to undermine her case, but then does exactly that to say she is not a ‘sterling witness’. There’s a great spray of detail about her WhatsApp chats, her friends and relationships; merely reading it makes you feel complicit in the violation.The complainant’s freedom, her sole proprietorship over herself, seems to rankle greatly. The judgment says it is the “norm for her to have flirtatious conversations”, dwells on the drink in her hand. It suggests that her trying to marshal the facts and seek support to present her case is about ‘doctoring events’. Even her work on gender justice have been used against her. What is so intolerable about women who know their rights?Society cues us to see rape from a patriarchal perspective, as a raid on some imagined purity rather than an attack on a woman’s command over herself. If she suffers violent injuries or dies, there is outrage. If the victim has higher status than the rapist, the rage is unhinged. But if she doesn’t fit these bills, sexual assault is seen as less of a shame, and less of a crime.Apart from seeming lapses in the investigation, the Tejpal judgment pounces on minor contradictions in her account, and CCTV footage. It’s well known that sexual assault survivors struggle to remember exact details, the mind protectively blanks out trauma. But the judgment wonders why the prosecutrix is smiling, not looking disturbed, reserved or terrified in the photos of the day. Well, that’s how humans are — we have professional and social facades, we have vulnerabilities, we worry and wonder and chatter and hurt and heal. She does not have to enact trembling victimhood in the way that society imagines victims. She does not have to be an adarsh automaton; her rights should not depend on anyone’s sympathy or recoil. This court even blames the complainant’s mother for not displaying the right feminine instincts.Blinkered by assumptions of ‘stranger rape’, the verdict harps on the lack of injuries or physical struggle. In truth, the vast majority of sexual assaulters are known to the victims. It is power and domination, not physical threat, that makes it hard for women to fight or resist. Rape laws were amended in 2013 to make consent crucial. And yet, the system is set up to doubt the victim, as the Tejpal and Mahmood Farooqui verdicts illustrate. Did she send mixed messages or implicitly invite it, did she regret and cry rape later? Why did she delay reporting? Was her ‘no’ resounding enough? It focuses on what the survivor didn’t do than what the perpetrator did. A better way, feminist lawyer Catharine MacKinnon says, is to understand rape as coercion — abuse of power and trust, exploiting a situation of dependency and vulnerability.In this case, Tarun Tejpal was the complainant’s boss, and her friend’s father. He swung from apologising for pushing a ‘sexual liaison’ despite her ‘clear reluctance’ in his early emails, to denying it altogether. Why didn’t the trial put his inconsistencies through a wringer too, examine his personal and workplace record, judge his ‘normative behaviour’?Society sees powerful men with deference and understanding, and discounts the credibility of the powerless. With women, the working class, subordinated castes, queer people, sex workers, we imagine they exaggerate, they are irrational, tough, sly, or whatever. This wall of stereotypes and mental shortcuts is hard to pierce, to convey the real harm done to them. If a relatively well-off woman in the Tejpal case experiences this, imagine the gulf of disbelief that a domestic worker might face.No wonder the world only registers gruesome atrocities, and the majority of sexual assault is not even reported. Study after study shows that false reports of sexual assault are extremely rare, especially after factoring out unprovable cases, or charges foisted by families.Believe women. It doesn’t mean believing all women as a blanket rule or ignoring evidence. It merely means taking off the spectacles fogged with bias. It means recognising us as real, and just as deserving of justice.82822870