JOIN USVictim-blaming by court
So, the court says the girl’s statements reveal a perverse streak! In granting bail to all three accused in a case of repeated rape and blackmail involving the students of a private university at Sonipat near Delhi, the Punjab and Haryana High Court has once again brought to the fore a critical debate concerning the victim’s position in our criminal justice process. According to the court, the case displays an instance of casual relationships with friends and acquaintances and adventurism. That may be so and universities and educational institutions need to pay attention to such issues.
For many reasons, though, the court’s order brings the debate over the issue of the victim’s participation in a trial to centre stage. There are some strands of progressive thinking in this judgement. For instance, the court tried to balance the demands of retributive and reformist approaches quite remarkably. While this seems to be a correct stand on the part of the court, there are troubling features in this order that have caused the victim a definite degree of discomfort. The “promiscuous attitude” and “sexual misadventures” on the part of the victim that has been portrayed in this order is nothing but victim-blaming and victim-shaming. Questioning the morals of the victim is a common, but unacceptable practice by defence lawyers in this country, but coming from the judges, this stigmatisation is likely to set a bad precedent.
Blaming the victim
What kind of stigmatisation does a victim face in a sexual assault case and to what extent a victim receives fair treatment and participation in an otherwise accused-centric criminal justice system? These are the questions that are thrown up by the order of the Punjab and Haryana High Court.
Victim-blaming, shaming and stigmatisation at times remain subtle and those who indulge in this may not even know they are doing so. Discussing the myths and stereotypes in rape cases in England, Martha Burt finds rape myths to be “prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists…creating a climate hostile to rape victims…a pervasive ideology that…supports or excuses sexual assault”. The retrograde decision of the Supreme Court in the 1972 Mathura rape case had forcefully brought this issue to the forefront and led to changes in Indian rape law via The Criminal Law (Second Amendment) Act, 1983 (Act No 46). However, these changes do not seem to have made much impact as in so many cases, these issues continue to crop up.
The National Law University, Delhi, has studied 50 judgements of the Supreme Court to understand the extent to which, and the manner in which, the court tends to connote gendered opinions and evaluate the victim in a stereotypical manner, especially bringing her conduct into question. The study revealed that in 18 cases out of 50, the court did make gender-insensitive comments during the trial; in 11 cases, the apex court made stereotypical comments. Gendered remarks in these cases clearly reveal that there is little appreciation on the part of criminal justice officials about the effects of victim-blaming on the victims. In one of the judgements, the Allahabad High Court observed that the ‘character’ of a rape victim was “not an absolutely irrelevant” circumstance in a rape trial.
In a case of rape of a domestic worker at the Sampangiramanagara police station in Bengaluru in 1997, the SC remarked that the victim was sexually active and possibly a sex worker, that she also seemed too submissive and her conduct did not match what the judges felt “normal” behaviour should be under such circumstances. Further, she did not scream when she was being raped! Susan Estrich in her famous book “Real Rape” has sketched this situation very effectively.
Further, according to the National Crime Records Bureau figures, in more than 70% of cases, the victim and the offender are known to each other. How does it matter as a factor affecting the trial? Relationships bring huge pressure on the victim to retract her statement and finally turn hostile in the court. This gives rise to acquittal of the offender in such cases. Moreover, the lackadaisical working of the criminal justice system does not inspire the confidence of the victim to come forward and seek justice.
Measures for change
Our criminal justice system should move towards victim-orientation. The courts seldom hear the victim as victim, as the victim only figures as witness in the case before a court. It is imperative for the legislature and the apex court also to recognise certain rights of the victims of crime, as they are recognised for the accused, relating to their interactions with the police, the prosecution and the court where the need for fair treatment, information, guidance, protection and assistance become crucial.
Surprisingly, we could define the term ‘victim’ legally only in the year 2008 when Section 2W (a) was inserted in the Criminal Procedure Code. The delayed arrival of the ‘victim’ to our criminal justice system has meant that s(he) has largely remained a marginalised person in the system. The spirt of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, needs to be implemented. This can bring victim-orientation to our laws.
It is high time that our systems should look to enable the participation of the victim at various stages of the trial. For instance, the victim needs to be heard at stages like the framing of charges, discharge proceeding, bail hearing, probation hearing, sentencing and compensation. The victim would then be in a position to factor his/her experiences into the criminal justice process without adulteration of any kind. A ‘victim impact statement’ is also a mechanism in many countries to hear the victim’s views in a criminal trial. If effected, these measures have a potential to improve the quality of justice for victims of sexual crimes.
(G S Bajpai teaches at the National Law University, Delhi; Mehak Bajpai is
pursuing LLM at NLU, Delhi)