On May 21, 2021, the Addnl. Sessions Judge at Mapusa acquitted former Tehelka Editor-in-Chief Tarun Tejpal of charges of power rape and sexual harassment (hereinafter “the Verdict”). The Verdict has been widely denounced for violating almost every established rape law precedent. I believe it is important that we do not analyse the Verdict as merely being a product of “ignorance of the law” or a result of alleged extra-judicial manipulation. Nor should it be viewed as an isolated example of injustice suffered by one individual. Rather, I argue that the Verdict is also a result of established patterns of thinking and writing about sexual violence. That law reform initiatives and judicial opinions have reinforced certain rape myths even whilst dispelling others. Hence trial courts continue to stigmatize non-stereotypical rape victims in spite of appellate court judgements which recommend otherwise. Though the Bombay High Court has issued notice in the State’s appeal against the Verdict, these patterns need to be questioned even if the Verdict is ultimately overturned by the appellate court.

In 2012, following the December 16 gangrape incident in New Delhi, and the ensuing public outrage, the Central Govt. quickly constituted the Justice J.S. Verma Committee to suggest rape law reforms. This resulted in the Criminal Law (Amendment) Act, 2013 (“2013 Amendment”) which inter alia introduced the death penalty and increased mandatory minimum sentences for aggravated sexual offences. One would assume that the heightened  public discourse about rape and workplace harassment post the 2013 Amendment, and especially #MeToo, has increased judicial sensitivity towards these issues. Indeed, the Supreme Court has very recently cautioned against the use of gender stereotypes in sexual assault cases. Then why do judgements like the Verdict or the infamous “feeble no” order in Mahmood Farooqui v. State persist? Is it merely a result of generational gap or insufficiently trained judges? I argue that it is in fact the very structure of rape trials, and the language used in judicial precedent, that incentivizes the use of regressive stereotypes in rape adjudication.

In Public Secrets of Rape Law (2014), feminist scholar Pratiksha Baxi has pointed out that “the cunning of judicial reform lies in folding the measure of reform into the structure of the trial without displacing the character of the rape trial as a sexualized spectacle.” Further that rape trials bring in new elements of the law while repeating earlier precedents of injustice. This is manifest throughout the Verdict [1]. It is not that the court is unaware of the law-at the beginning, it cites multiple precedents on how the sole testimony of the prosecutrix is sufficient for conviction in rape cases. However, it distinguishes these precedents by stating that these were applied in cases where the prosecutrix was a minor, or where there was medical evidence to support her testimony. Further, though the court is well acquainted with the rules against character evidence in rape trials, it undertakes a pornographic dissection of how the prosecutrix was habituated to sexual conversations and sexual activity for discrediting her testimony.

The fact that Indian law reform has relaxed evidentiary rules and increased carceral penalties for rape trials is of no help to the prosecutrix in such cases. Rather, the possibility that the accused may be sentenced to a lengthy jail term-based on the sole testimony of the prosecutrix, and the general burden to prove guilt “beyond reasonable doubt” increases what Mrinal Satish has termed as the “burden of performance” on the prosecutrix. The prosecutrix’s behaviour both before and during the trial must conform to the court constructed stereotype of the chaste, monogamous, conservative and visibly emotionally traumatized rape victim [2], if the court is to believe her.

This burden of performance also exists because Indian judicial imagination, even in “progressive” judgements, has subscribed to the notion that rape is a “crime against society”, “more heinous than murder”, and that it is “destructive of the whole personality of the victim.” The 2013 Amendment neither deconstructed these maxims, nor did it incorporate strategies other than mandatory minimum jail terms. The Indian feminist movement has also largely viewed rape as a unique form of gendered violence which is different and more harmful than other bodily offenses, and has over the years, reduced its opposition to carceral penalties which equate rape with murder for sentencing purposes (excepting capital punishment) [3].

However, the reiteration of the belief that rape is worse than death, or that it results in the psychological and social death of the victim increases judges’ propensity to assume that the victim should have strongly resisted the crime [4] and that her mental state should be damaged beyond repair. This might be why the Verdict repeatedly emphasizes the prosecutrix’s failure to show that she tried to kick/scratch the accused, that her clothes were torn, that she screamed, or banged the lift walls to call for help. This resistance must carry over to digital spaces as well-the prosecutrix’s refusal to reply to Tejpal’s messages is deemed to affirm his defense that they engaged in only “drunken banter.” The fact that witnesses saw her partying and consuming alcohol soon after the alleged incident further damages her case. Perhaps, if she had exhibited the “deep sense of deathless shame” that the Supreme Court has attributed to rape victims, then the court would have been more sympathetic to her case.

Further, as Baxi has illuminated, the construction of rape as a “crime against society” elides the personal injury caused to the prosecutrix, both before and during the course of testifying to the crime [5]. It is not sufficient for the prosecutrix in the Verdict to state that the accused touched her private parts. Neither was it enough  that she lost her job and social networks, and suffered immense psychological harm as a result of his actions. Instead, the court states that she should have subjected herself to medical examination to prove that she was injured by the assault. Alternatively, she must recount in forensic detail how the accused pushed her against the wall, how many hands he used to lift her dress, how he managed to “pry her mouth open” to insert his tongue inside, whether she had mentioned penetration in the first instance to witnesses and the exact time duration of the rape. Hence, as Baxi has argued, the prosecutrix must mimetically reproduce the act of rape in court in order to prove that society is endangered by the actions of the accused. “The production of judicial horror rests on such repeated sexualization of the raped body, and demands the excited performance of the rapist’s intent in a court of law.” [6]

There is no protocol requiring that evidence in sexual assault cases should be recorded in a manner which avoids the risk of re-traumatizing the witness. For example, the defence constantly forces the prosecutrix to recall how she came to know that the rape lasted for two minutes. This is done to “elicit remembrance in temporal exactitude”, forcing the prosecutrix to remember the events in photographic detail as if she were just a bystander [7]. In this regard, the Verdict reveals the Indian legal system’s inability to invent what Baxi calls “therapeutic jurisprudence”- i.e. policies and procedures which do not re-victimize the victim [8]. It is insufficient for appellate courts to call out gender stereotyping in rape judgements without critiquing their own outdated notions of rape, and overturning the procedures that elicit the need for showing such stereotypical behavior in the first place.

References

1. Pratiksha Baxi, Public Secrets of Law: Rape Trials in India, 1 (Oxford University Press, 2014).
2. Mrinal Satish, Discretion, Discrimination and the Rule of Law, 43 (Cambridge University Press, 2017).
3. Prabha Kotiswaran, Governance Feminism in the Postcolony: Reforming India’s Rape Laws in Governance Feminism: An Introduction, 75, 85 (Janet Halley et al. eds., University of Minnesota Press, 2018).
4. Baxi, supra note 1, at 10.
5. Id, at 344-345.
6. Id, at 344.
7. Id, at 158.
8. Id, at 98.

Ms. Megha Hemant Mehta (she/her) is a graduate of the Batch of 2019, NLSIU, Bangalore, and a former judicial clerk at the Chambers of (Late) Hon’ble Mr. Justice M.M. Shantanagoudar, Supreme Court of India. Her areas of interest include anti-discrimination law, gender and sexuality law, and education policy. She can be reached at [email protected].