Tarun Tejpal was acquitted last week of several charges relating to his alleged sexual assault of a journalist colleague during a 2013 conference in Goa. The verdict cites lacunae in the investigation and inconsistencies in the accuser’s various statements as the reasons for giving the accused “the benefit of the doubt”.
Had the judge merely cited those and ruled that there were evidentiary gaps that left the charges unsubstantiated, those of us who were outraged when the case came to light and saw the subsequent letter of apology from the accused would have merely been deeply disappointed. However, this judgement has added to the growing list of judicial instructions on what is appropriate behaviour for women. After all, courts and their officers belong to the same misogynistic society in which sexual and gender-based violence is an acceptable language of interaction.
This habit of instruction did not originate in the verdict of Mahmood Farooqui v. State (Govt Of NCT Of Delhi) in 2017 by the Delhi high court, which expounded on the meaning and proper expression of consent—or rather, how lack of consent should best be communicated—but it is a good recent example. Reconstructing the sequence of events in the Farooqui case, the court suggested why the accused may have misread the accuser’s feelings:
“The history of intimacy and the unabashed liking/attraction of the prosecutrix towards the appellant may have given an impression to the appellant of consent…. Absence of any real resistance of any kind reaffirms the willingness. An expression of disinclination alone, that also a feeble one, may not be sufficient to constitute rape.” The court concluded that we do not know when and how the accuser communicated her lack of consent and therefore, “it can safely be said that the appellant had no idea at all that the prosecutrix was unwilling”.
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Despite its acknowledgment that the testimony of rape victims should be taken seriously and that prior history does not constitute enough reason to believe there is consent, the judgement contributed to the discourse on sexual violence in India the concept of a “feeble ‘no’”. The court suggested that while it may be that many women are unable to communicate lack of consent unequivocally, educated women who have had physical relationships should be able to resist more and do better than a “feeble ‘no’”. In other words, educated women should be communicating better in situations of rape. The court concluded that in this case, it was not clear whether the accuser had communicated clearly enough to the accused that she did not give consent for a sexual encounter.
The Tejpal judgement opens by quoting preceding verdicts to define and set standards for this case—from the value of a rape survivor’s testimony to the nature of a sterling witness to the irrelevance of previous sexual history. It asserts that the burden of proving the complaint is on the prosecuting team and that they should not bank on the weakness of the defence.
The judgement demonstrates that the accuser told several friends, including senior feminist lawyers, what had happened and sought their advice on how to draft her complaint. It states, “With the help of experts, there may be a possibility of doctoring of events or adding of incidents,” and concurs with the defence’s view on this. The point seems to be that in the writing of a complaint, the accusing woman should not have the presence of mind to seek help from any support network she may be so fortunate as to have. Think of what this means for the small-town woman who asks her sister or friend’s father-in-law or social worker or district collector for help. The verdict recounts the familiarity of the accuser with issues relating to sexual and gender-based violence and her plan to write about this. Her decision to first complain to her editor rather than the police is juxtaposed here, quoting her as saying she did not know that the police cannot investigate sexual assault unless the victim discloses that it happened. The delay in her writing and sharing her account of the incident is also noted.
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The reconstruction of events in the judgement goes beyond the alleged assault and includes conversations in person, on the phone and over WhatsApp with friends and colleagues of the accuser. In so doing, it lingers over exchanges relating to past and present sexual encounters or fantasies. By doing this, notwithstanding the pious evocation of past judgements which ruled that a woman’s sexual history is immaterial, the court seems to be reminding us that the accuser was a woman with an active social and romantic life, and comfortable talking about it.
A few paragraphs are spent explaining that the accuser intended to stay back in Goa all along, and did not do so because she was traumatised. We are reminded that her mother did not rush to her side to offer support. We are told that the accuser claimed to have struggled during the assault yet suffered no injuries, which is, in the court’s view, not believable.
One reason why the acquittal has caused so much heartache is that right after the alleged assault came to light, so did an apology letter from the accused in which he admits that he assaulted the accuser. The acquittal verdict concludes that the accuser kept changing her version of the story, and given that the investigating officer made several errors of omission and commission (listed at length), the accused must be given the benefit of doubt. Nevertheless, what you take away from reading the verdict is the picture painted of the accuser as plaintive and scatter-brained at best or wanton and conniving at worst. And the question it raises picks up from the Farooqui judgement: What kind of a woman deserves to have her rape accusation taken seriously?
Clearly, if you are educated, well-connected and professional enough to come back to work, you have not been traumatised enough. Perhaps your “no” was not assertive enough to ward off assault, considering your privilege. And if you belong to a marginalised group, you must swallow rape as your lot because complaining is ungainly. The rapes of women from marginalised groups, like those of persons with marginalised sexual and gender identities, are greeted usually with disinterest but in some cases, also a show of support for the accused.
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We have clear preferences about how we like our victims—whimpering, helpless and preferably martyred to patriarchy. We do not like victims to be either so privileged that they can fend for themselves or so marginalised that they spoil the picture by reminding us of how unjust we are. This means we have no time for the young bride raped by her brother-in-law but forced to cheerfully serve his breakfast. The conservancy worker who is molested by a security guard on the street she cleans but must return to work and face him in order to feed her family. The girl in the plastic bucket section who, emerging after being groped in the stockroom, must still smile and ask you if you need help. There are too many of us and too many of us are yet to receive the memo on appropriate victimhood.
The ideal victim allows us to break into gallant protector mode. We can then speak tearfully but angrily about our mothers and sisters (not wives, because marital rape is not criminal, remember?). We can promise protection by trading off women’s privacy and autonomy. In this universe, sexual violence is merely uncontrolled lust and the injury caused by violence and rape offends patriarchal honour and diminishes a woman’s value in the matrimonial bazaar. Justice is easily delivered with a promise to marry, mopping up the mess and tidying inconvenient traumas. Sexual and gender-based violence are unpleasant realities but if only victims would read the rulebook first, we could find a way to rape them, accommodate their trauma and still keep the picture pretty.
Sexual and gender-based violence do not end with the traumatic incident. As a society, we do acknowledge that every narration of what happened forces survivors to relive the moment. The stigma of being hurt—because that is what this is, an injury to body, to mind and to trust—is greater in our world than our disavowal of perpetrators. Countless survivors carry their stories within, unshared, unspoken, but alive and painful. Reminders and triggers are everywhere but we hardly acknowledge that trauma endures and haunts. We heap insult and injustice upon injury, and call it due process.
Miscarried justice, memories of violence, unresolved trauma and abiding helplessness walk with us through life. And the establishment of gradations and standards for that stigma—this victim is more deserving than that—damages deeply not just the victim-survivor but all of us as a society.
Swarna Rajagopalan is a political scientist, author, peace educator and founder of Prajnya, a non-profit that works in the area of gender equality.
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