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On May 21, a trial court in the Indian state of Goa, western India, acquitted Tarun Tejpal, founder and former editor of news magazine Tehelka, on charges of rape against him almost eight years ago.
Judge Kshama Joshis’ judgment report has since sparked much outrage in the country, especially among feminists. It once again exposes the deep misogyny that defines the outlook for many in India’s criminal justice system, indeed in Indian society.
This highlights why rape survivors are reluctant to go to the police or the courts for justice: they end up being tried and are often blamed for the rape, for not behaving in a way that would have deterred the rape. rapist.
A senior journalist, Tejpal has made a name for himself with some of the greatest investigative reporting in Indian journalism. In 2013, her junior colleague alleged that he sexually assaulted her inside the elevator of a five-star hotel on November 7-8 during a Tehelka event in Goa. Tejpal was arrested a few days later and spent about seven months in prison before being released on bail. The trial began in 2017 and went off in spurts.
It is clear from a reading of the 527-page judgment that Judge Joshi handled the accused with children’s gloves even as she pulled the complainant over the embers. Joshi gave Tejpal the benefit of the doubt.
In an email to the woman a few days after the incident, Tejpal admitted to having sex. A shameful lack of judgment had led him to attempt a sexual affair with her on two separate occasions, he wrote in the email. He even admitted that she made it clear that she didn’t want such attention from him.
Tejpal’s email was unambiguous that the sexual affair did not have her consent, the key factor that makes a sexual encounter a sexual assault. Subsequently, Tejpal claimed that the email was sent involuntarily and against his will. The judge chose to take his word for it.
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The trial should have focused on whether the allegations against Tejpal were true and whether his actions on the two consecutive nights amounted to sexual assault under Indian law. It was Tejpal who was to be tried; the court should have scanned his character and behavior. Instead, the trial was transformed into an investigation of the victim, his character and his conduct.
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The judgment exposes details of the woman’s WhatsApp chats, email messages, past relationships and social life. Her dress at the time of the incident, her length and the length of her lining, even the kind of undergarment she was wearing, are described in the judgment.
The fact that these issues were detailed in the judgment indicates that they were important to Joshi and determined his perception of the claimant. In other words, the judge allowed her to have preconceived ideas about what behavior a rape victim should exhibit in determining her verdict.
In the photographs taken after the alleged assault, the woman smiled and looked happy, normal, in [a] good humor, Joshi wrote in his judgment. She did not look disturbed, reserved, terrified or traumatized in any way, even though it was immediately after she claimed to have been sexually assaulted, Joshi said, saying this completely belies the prosecution. .
As the judge slapped the prosecution’s fingers for not investigating and building a strong case against Tejpal, it appears that the plaintiffs’ behavior that Joshi deemed inappropriate for a sexually assaulted Indian woman determined his verdict. .
In countless rape cases, women have been castigated by the courts for what they consider inappropriate behavior or responses to assault.
In 2016, the Supreme Court noted that it was unusual for an assaulted woman not to immediately rush home in a state of distress, humiliation and devastation. Instead, she stayed at the scene of the assault to identify and establish evidence. Relying on the testimony of a witness that the victim was a sex worker, the Supreme Court said that she was also used to having sex before the incident. The Supreme Court then acquitted the attackers in this case.
A year ago, a Karnataka High Court judge ruled that it was unbecoming for an Indian woman to fall asleep after being sexually assaulted. This is not how our women react when they are raped, said Judge Krishna Dixit, acquitting those accused of rape.
As in the Tejpal case, here too the woman was seen as not behaving as a good Indian or a victim should be; therefore, the judges found her testimony untrustworthy. It was hard to believe the woman’s words, Dixit observed, as the woman failed to appear as a victim. The victim’s explanation that she did not imagine the accused would try to do such a thing is not at all credible, Joshi said.
At every stage of the criminal justice system, women are blamed and humiliated for being raped. Police, lawyers, judges and society generally blame the woman for her own rape: going out at night, for wearing the wrong clothes, they claim that she was asking for it.
One of the men who raped Nirbhaya on a moving bus in New Delhi in December 2012 told the BBC that women who go out at night are only responsible for themselves in case they attract the attention of the male aggressors. But it is not only convicts and criminals who blame the victim. Lawmakers are doing it too.
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The West Bengal government has accused a survivor of a gang rape in Calcutta of fabricating the assault. A congressman from Trinamool said the rape was in fact a sex deal gone awry.
Following public fury over Nirbhaya’s gang rape, India’s rape laws were changed. The Criminal Law Amendment Act 2013 broadened the definition of rape. Physical contact, unwelcome words or gestures, or requests for sexual favors are now treated as crimes. The 2013 law established procedures adapted to victims. Bringing up a woman’s sexual history is prohibited by law.
Still, the Joshi court allowed irrelevant and aggressive questions that were not only insulting and painful to the woman, but also illegal. These questions were so humiliating that the woman turned to the Bombay High Court to detain Tejpals’ lawyers. The court intervened to prohibit Tejpals’ lawyers from asking him “indecent and scandalous questions.”
Not only did Joshi allow the illegal interrogations, but she also detailed the woman’s responses in her judgment. Some of the comments Joshi made in his judgment blamed the woman. If the complainant was terrified of him [Tejpal] and not in the proper frame of mind, why would she introduce herself to the accused and reveal her location to him, she asked. Joshi also questioned the woman’s intentions and therefore blamed her.
Obviously, Joshi overlooked the context of the case. The woman’s father was Tejpal’s friend. His daughter was his closest friend when the incident happened. She was a colleague of Tejpal. The judge chose to ignore the power difference that existed in the workplace.
Joshi’s judgment reveals that she has little understanding of the complexities of human behavior and how people respond to assault differently. Instead of basing her verdict on hard evidence and facts, she passed judgment and let her misogynistic biases determine her verdict. Joshi’s remarks on women show the continued hold of patriarchal views in Indian society, even among supposedly educated people, including women.
This is not the end of the road for the woman or Tejpal. Joshi’s verdict is being appealed to the High Court. Even if the High Court overturns the verdict, the terrible damage caused by Joshi’s judgment will be difficult to repair. The impact of the personality assault that the judge committed in his judgment will be difficult to reverse.
In addition, it will be difficult to convince victims of rape and sexual assault to pursue justice in the courts.
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