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THE UNCONVENTIONAL VICTIM: WORTHY OF JUSTICE?

Author: Sadhana Swaminathan, II Year of B.A.,LL.B(Hons.) From Rajiv Gandhi National University of Law, Punjab.


Section 155(4) of the Indian Evidence Act enabled a man accused of rape to show whether the victim was of generally immoral character, which would undermine the credibsssssility of the victim as a witness. Following the recommendations of the 172nd report of the Law Commission, this section was removed from the act through an amendment in 2003. This was a step forward in dispelling rape myths, particularly in the court room and lessening the trauma suffered by the victim. But the regressive idea behind the section rears its ugly head from time to time. Most recently, we saw it in a judgment from the Sessions Court in Goa that acquitted Tarun Tejpal, the former editor in chief of Tehelka. The Tarun Tejpal case is one of the several cases in which the victim was put on trial rather than the accused.


Timeline of Events

The case dates back almost eight years ago. A journalist working at Tehelka accused Tarun Tejpal, the owner and editor in chief of the magazine, of sexually assaulting her on the 7th and 8th of November, 2013 in the elevator of a luxury hotel in Goa. Following the complaint made by the victim to the managing director of the magazine, Tejpal sent two emails conveying his apologies. An FIR was lodged against him by the Goa police and he was arrested on November 30. In July 2014, he was granted bail by the Supreme Court. The trial begins in the Sessions Court of Goa in September 2017 and after several delays, ended in May 2021, with the acquittal of Tarun Tejpal of all charges. Justice Kshama Joshi, in a mammoth judgment that ran 527 pages, acquitted Tejpal as the allegations made by the prosecutrix cannot be proved ‘beyond reasonable doubt’.


Rape Myths in the Court Room.

The session’s court judgment was received with widespread criticism, with the Bombay High Court sarcastically calling it as a manual for rape victims. One of the most disturbing features of the judgment was the fact that the victim was put on trial rather than the accused. Her sexual history, which had zero relevance to the case at hand, was repeatedly scrutinized. The tone of the judgment is eerily similar to that of Tukaram and Another v. State of Maharashtra, popularly known as ‘Mathura Rape Case’, which was also generously strewn with rape myths. Rape myths refer to the beliefs about sexual violence that seek to shift the blame from the perpetrator to the victim. Absence of resistance amounts to consent; only a certain ‘type’ of women would be raped and consent is not retractable are some examples of widely held rape myths. Another rape myth pertains to how the victim must look after the crime. A traumatized look is necessary to support her testimony. This can be seen in Kamalanantha v. State of Tamil Nadu. In Sri Rakesh B v. State of Karnataka, the Court observed that the victim’s behaviour after the act was “unbecoming of an Indian woman; that is not the way our women react when they are ravished.” From these instances one can see how deeply the myths about the ‘appropriate behaviour’ of a victim of sexual violence are embedded in our society.


In the Tejpal case, the Court observed that the victim “did not look distressed or traumatised in any manner whatsoever, though this was immediately a few minutes after she claims to have been sexually assaulted again by the accused, putting her in a state of panic and trauma.” The fact that the victim didn’t exhibit any visible signs of trauma could be a valid reason for undermining her testimony is worrisome, to say the least. The conduct of the victim after being sexually assaulted is entirely irrelevant and shouldn’t a play any role in determining the acquittal or conviction of the accused. Is the unconventional victim worthy of justice is a question that begs to be answered.


Blatant bias while micro analyzing evidence

The victim was asked questions such as whether it was immoral to have consensual sex with different persons and whether it was immoral to voluntarily consume alcohol and cigarettes and other questions related to her past sexual history. Her Whatsaap chats dating seven years back were micro analyzed. Her sexual past was described in graphic detail, further humiliating the victim nay survivor. She was found to be an unreliable witness.


On the other hand, in one of the emails sent by Tarun Tejpal, he had apologized, “unconditionally for the shameful lapse of judgment that led me to attempt a sexual liaison with you on two occasions on 7 November and 8 November 2013, despite your clear reluctance that you did not want such attention from me.” Though not a confession, anyone can see that a sexual encounter had indeed taken place between the accuser and the accused and in which the former had expressed her ‘clear reluctance’. Why weren’t these emails micro analyzed?


One foot forward two steps back

In Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr, the Supreme Court of India had laid down that “use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances.” The apex court stated that consent given by the victim in the past, her clothing, any provocation on her part must never enter any judicial verdict or be considered relevant. But this has been unfortunately ignored in the Tejpal judgment.


The Tarun Tejpal judgment is a grim reminder that we have a long fight ahead in achieving gender justice.


Conclusion

The fact that the blame in sexual violence cases is shed on the victim, especially if they are a woman, shows how backward our society really is. The Tarun Tejpal judgment is just another grim reminder that we have a long fight ahead in eliminating rape myths, especially from the court room.