The survivor is on trial

The recent Cosby verdict by a Pennsylvania court and the Tejpal trial in Goa prove that it’s sexual assault survivors and not the accused who continue to be judged for their decision to go public. Judicial experts say the change must start with investigating agencies questioning personal bias and men becoming allies of women who show pluck

On May 21, 2021, women all over India realised that if you described a man other than your husband as “cute,” or cracked a raunchy joke with your girlfriend, you wouldn’t be taken seriously if you ever went on to file a rape, molestation or sexual harassment case.

A Goa trial court acquitted senior journalist Tarun Tejpal, 58, of rape charges levelled against him eight years ago by a junior colleague, almost 30 years younger, at Tehelka magazine. 

Tanya Appachu, women’s rights lawyer

While the 527-page judgment was disappointing for some, it was the derogatory references to the survivor’s behaviour and former relationships, preferences in dressing, chats with friends, that left most women furious. That it made public details of her name, her parents’ identity and the contacts saved on her phone, was seen as a lapse by the court, according to the Bombay High Court’s vacation bench in Goa. Additional Sessions Judge Kshama Joshi stated, “... there is no corroborative evidence supporting the allegations made by the prosecutrix. Her deposition also shows improvement, material contradictions, omissions and change of versions, which does not inspire confidence…” It spoke of her “flirtatious and sexual conversations with friends and acquaintances”, and how her chat messages to the accused “contradict facts”. The judge condoned the usage of these chats as they are “only to be read against her claims on oath that… was a mere acquaintance/casual friend, and the purpose of producing the evidence of these chats is to show that the prosecutrix is lying and that the chats were not referred for the purpose of proving her character. It is difficult to believe that the prosecutrix is a truthful and reliable witness.”

Joshi said that the survivor was “smiling and looked happy, normal, in [a] good mood” in photos taken after the alleged incident. She messaged the man she accused—all signs that she wasn’t telling the truth. The judgment gave less credit to the fact that may be there wasn’t enough evidence to prove if the former Tehelka editor had, in fact, molested his colleague in a moving elevator at a Goa hotel when the magazine’s staff was attending an annual event. It however, did lay stress on how the survivor’s personality, behaviour, and actions went against dictates of how a victim should have behaved.

Famed comedian Bill Cosby was accused of sexual violence by 60 women. He walked free last month. Pic/Getty Images

The Goa government has filed an appeal against the judgment before the Bombay High Court saying Tejpal’s acquittal in the case was fit for retrial, citing the trial court’s lack of understanding of the survivor’s post-trauma behaviour and censuring of her character. The appeal, filed before the HC’s Goa bench, was amended last week to bring on record the judgment and to include further grounds against the acquittal of Tejpal.

Not much seems to have changed from five decades ago, when Section 155(4) of the Indian Evidence Act stated that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character”. It was only in 2002 that the Indian Evidence (Amendment) Act, 2002, finally deleted Section 155(4) from the statute. Simultaneously, Section 146, which governs what questions can lawfully be asked to a witness in cross-examination, was modified to make it impermissible, in a prosecution for rape, to cross-examine the complainant as to her general moral character.

After he was accused of rape by a junior colleague eight years ago, Tehelka founder and senior journalist Tarun Tejpal was acquitted by a trial court in Goa in May this year. Pic/Getty Images

The trend is mirrored in the west. World-famous comedian and actor Bill Cosby, who had been accused by 60 women of sexual harassment, walked free last week, after his 10-year sentence was overturned by a Pennsylvania court, because of a “process violation” where his lawyers had earlier made an agreement with a state prosecutor that he wouldn’t be charged in the case. 

Where does this leave the survivor?

In 2012, Supreme Court advocate Nipun Saxena had filed a writ petition against India, which dealt with how and in what manner the identity of survivors of rape and children who are victims of sexual abuse, should be protected, so that they are not subjected to unnecessary ridicule, social ostracisation and harassment. Today, he feels differently. “There was no uniform victim compensation then, no one to help them, direct them. But things have changed since. At least now, since 2018, there is a one-stop crisis centre set up in each district.”

Bengaluru-based Sandhya Menon, the face of India’s #MeToo movement, says it’s time that women and men work as allies, to achieve gender justice 

What Saxena feels that the judiciary often forgets in cases of rape/sexual assault, is that there’s a reverse burden of proof—where the “person is presumed guilty until proven innocent”. “People lose sight of that.”

Saxena also says that the fact that in the Tejpal case, the survivor’s phone messages were put on record, but not those of the accused, is also a reflection of how the police conduct an investigation. “The problem is in the way the Code of Criminal Procedure is framed—we call it an investigative lacuna. The investigating agency [police] and persecuting agency [the public prosecutor] are different. The lawyer’s work starts when the trial begins. If the lawyer had any say in how the FIR is filed, then these discrepancies wouldn’t exist. A refresher course should be conducted annually for investigating agencies. They need to be trained to disassociate themselves from inherent bias and social conditioning.”

Nipun Saxena and Wesley Menezes

Speaking with mid-day, women’s rights lawyer and digital curator Tanya Appachu says, “In Tejpal’s case, the judgment doesn’t discuss evidence because the evidence was not foolproof. Criminal jurisprudence is crucial, because in India, everyone framed or charged is not presumed to be guilty. Now, in such a scenario, individual bias colours how survivors are perceived. In court, there is the perception of a ‘right’ survivor.” She cites the case of the 2012 Delhi bus gang rape, where the 23-year-old student was raped and physically assaulted, and later died of her injuries. “It stirred the country. In Tarun’s case, the survivor apparently came out of the lift smiling. Witnesses kept changing their testimony, including discussing her previous affairs and flings. Ideally, a judge shouldn’t be judgmental, but in this case, the judgment is part-textbook and part-biased, in my opinion.”

Appachu goes on to explain why a woman’s morality is often up for conversation in the court. “The accused party has to prove consent and they can prove this only by showing that the survivor was already involved with the accused. To establish consent, a woman’s character is discussed in court. In a lot of cases, courts have noted that ‘no’ is a ‘no’. The most popular example is when a court pronounced a man guilty after a sex worker charged him with rape. Her professional career choice didn’t matter because she was able to prove in court that on that day, she didn’t offer her consent.”

Whether falsely accused or not, everyone charged with rape is entitled to a trial with a defence lawyer. According to papers written on how rape defense lawyers plan their case, they develop their “theory of the case,” a story that explains how their client has come to be falsely accused. When the complainant and the accused have known each other a while, the lawyers are supposed to thoroughly explore their relationship, especially the accuser’s perception of the relationship. They also investigate social pressures on the accuser, and are supposed to ask questions like: Did the accuser find himself or herself in trouble with a jealous partner and see making a rape claim as a way to get out of trouble?; Did the accuser get drunk, agree to sex and wake up wanting to blame someone else for behaviour they regret?”

A well-known Mumbai model, who accused photographer Colston Julian of sexual harassment and abuse in May this year, says a survivor has little choice, but to be prepared for the  character assassination that will come her way. From the reluctance of the police to register a complaint to the press asking inappropriate questions, the model feels that  empathy is seen lacking in cases of sexual assault. “It’s supposed to be a voyeuristic trip for people. It starts with the cops asking, ‘why are you complaining now?’ It’s as if they don’t understand what happens when a woman is raped.” The police, she says, often find it hard to accept that someone who has been subjected to prolonged periods of physical and emotional trauma will take time to process, heal and acknowledge the pain, before deciding to fight back. “I was harassed by the media too. Journalists have asked me how wild was the nature of the sex and if BDSM [Bondage, Domination, Sadism, Masochism] was involved. One journalist wanted to know how someone can be raped in a car. Another scribe asked what he did to ‘turn me on’. I had to clarify that I wasn’t turned on, it was rape. Often, I am asked my opinion on false rape charges. The system, as it exists now, discourages women from speaking up.”

The past is often raked up, as it was in the case of Tejpal’s survivor. 

A woman who is fighting a case in the Dindoshi sessions court against a well-known Bollywood producer-director, tells mid-day on condition of anonymity that her ex-boyfriends were requested to depose in court. “I wonder how every past experience—sexual or romantic—is relevant to a rape case, in which a man clearly forced himself on me.” 

Wesley Menezes, a Mumbai-based advocate, who fights rape and abuse cases, says that most court experiences are far from empathetic. “Character assassination is common. That’s the way the defence works. We can have a case of a 16-year-old being raped, and the police will say, ‘she wanted it’. It starts with those in uniform and how they talk. The judiciary can only act on what the uniform records. Sensitisation needs to start from bottom up.”
While Tejpal’s verdict was hailed by many including his brother Minty Tejpal, and actor Arjun Mathur, who is dating Tejpal’s daughter Tiya, the Network of Women in Media, India (NWMI) issued a statement standing in solidarity with the survivor, applauding her courage and determination to pursue justice, as did the Indian Women’s Press Corps (IWPC).

Journalist Suparna Sharma of IWPC told mid-day, “If we took four steps forward with Priya Ramani’s ruling [where Ramani was acquitted in a defamation case filed by politician and veteran journalist MJ Akbar, who she accused of sexual harassment, and the court remarked ‘the woman has a right to put her grievance on any platform of her choice and even after decades’], this [Tejpal verdict] takes it many steps back. The support for this survivor comes from our lived experience. We understand the workings of powerful editors, who make or break careers, and hand out assignments based on sexual barters. They create a huge network of supporters in the industry, playing power games of sorts. Many journalists go through various degrees of sexism, some bordering on abuse as well. The rage comes from the judgment, which investigates the character of the survivor and not the accused. We often are told little about his sexual conduct or past, but we know about the survivor’s past and present in detail.” Sharma describes the Tejpal verdict as “moralistic, regressive, misogynistic”. “There is a paragraph where the judge discusses in detail whether the survivor’s underwear was pulled up or picked up. The verdict doesn’t talk about the accused at all. Thankfully, the Bombay HC has been reassuring by calling it out as a rape manual. But that said, it’s a battle that the survivor has to fight and we, in every capacity, stand by her.”

As journalist Sandhya Menon, who was the  face of India’s #MeToo movement in 2018 after she tweeted that senior journalists had physically and verbally abused her through her career, says, “We now need men as allies too, as all of us have to work on 
this together.”

Menon, who is raising her young daughter in Bengaluru, says that she has been thinking about the issue for three years. “I think the need of the hour is to keep having conversations, keep figuring out vocabulary so that women know what’s happening and how to express themselves. One can’t stay quiet, no matter what. Complaints have to be filed, and cases have to be registered, no matter what they think of the woman, who is accusing someone of rape. I don’t understand why the police advise women not to talk. Sensitisation training also needs to come with bias training—where people can put aside what they feel, and go solely with the facts, with what happened.”

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