Five days after former Tehelka editor-in-chief Tarun Tejpal was acquitted of all charges in a 2013 rape and sexual assault case, Solicitor General Tushar Mehta told the Goa bench of the Bombay High Court that the verdict lacked legal jurisprudence and sensitivity.
"If one were to go by the findings of this verdict, then a victim must exhibit trauma to be a victim of sexual abuse," Mehta submitted referring to the way the trial court had dealt with the case of sexual assault. The solicitor general was referring to comments made by the Additional Sessions Judge Kshama Joshi in a 527-page document wherein she observed that the victim's behaviour was unlike that of a victim of sexual abuse.
Mehta, who is representing the state of Goa, has appealed against the acquittal of Tejpal saying that the order is "erroneous in law" and "unsustainable".
The victim appeared "normal and happy, did not look disturbed", "not possible to believe an intelligent woman aware of laws and physically fit would not push off the accused", did not demonstrate "normative behaviour"—judge Joshi observed in the verdict acquitting Tejpal for allegedly raping and sexually assaulting his female colleague.
The prosecution's shoddy probe and the victim's post-assault behaviour were key factors the judge relied on while acquitting Tejpal.
Also read: Victim's Behaviour Unlike A Rape Victim: Goa Court While Acquitting Tarun Tejpal
Constitutional and trial courts have offered a mixed bag of opinions on a victim's behaviour in sexual assault cases.
"Prior sexual history and character are completely irrelevant in a prosecution for rape," Kumar Askand Pandey observed. "In this case, the court could have avoided making references to the survivor's past conduct which was wholly unrelated to the alleged incident and could have based the decision purely on the facts of the case. Such victim shaming or insinuating the victim leads to demoralising other survivors from taking recourse to law," Pandey, a law professor at the Ram Manohar Lohiya-National Law University said.
How Past Court Judgments Have Shamed Victims
Over the years, courts across the country have had quite a few things to say on the 'behaviour' of a sexual assault victim.
"Nothing is mentioned by the complainant as to why she went to her office at 11 pm; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning; the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman," Justice Krishna S. Dixit observed in Rakesh B vs State of Karnataka. "That is not the way our women react when ravished," the judge noted in his June 22, 2020 order granting bail to the accused.
"The prosecutrix was supposed to attack the appellant like a wild animal, but she did not even resist. Thus, her conduct suggested only and only, her consent and will," a Madhya Pradesh trial court observed in Dilip vs State of MP.
"The testimony of the victim offers an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounters, and these factors would, therefore, offer a compelling reason to consider the prayer for suspension of the sentence...," Justice Mahesh Grover and Justice Raj Shekhar Attri of the Punjab and Haryana High Court observed in its September 2017 order suspending the sentence of three former law students who were convicted of gangrape.
"Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct," the Karnataka High Court said in its 2016 order setting aside the conviction of the accused.
"Her post-incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and devastated state, she stayed back in and around the place of occurrence…," the high court had added.
Post-assault behaviour and prejudices
It is noteworthy that the Supreme Court has pointed out in various cases that relying on post-assault behaviour can lead to myths and prejudices.
"Courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order," the Supreme Court said in its March 2021 Aparna Bhat verdict. "Furthering of rape myths and stereotypes by the judiciary limits the emancipatory potential of the law," it added while issuing guidelines for courts to follow while granting bail in sexual assault cases.
"Judges play—at all levels—a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender-related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors," the top court said mandating the introduction of gender sensitization as a course module for those studying law.
Also Read: SC Sets Aside HC's Tie 'Rakhi' To Accused Order; Issues Guidelines
The Supreme Court has frowned upon the dissection of a victim's behaviour post an assault. In a catena of progressive judgments, it has held that a survivor's past has no bearing on the merits of cases at hand. "Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone," SC held in the 2004 Pappu @ Younis.
In its 2018 Nipun Saxena verdict, the Supreme Court admitted, "If the victim is strong enough to deal with the recriminations and insinuations made against her by the police, she normally does not find much succour even in court."
Much before this, in the 1990 Chandraprakash Kewal Chand Jain case, the top court observed, "It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime." The court had observed that a victim's behaviour could be affected if her perpetrator was a person in authority.
In the Tarun Tejpal verdict, Judge Kshama Joshi has quoted several judgments to claim she did not rely on the victim's past sexual behaviour to judge the case at hand. However, in the detailed observations that followed, the judge relied on the victim's alleged 'flirtatious and sexual conversations with friends and acquaintances'. The judge did not dissect the accused Tejpal in a similar manner.
Also Read: Rape Laws in India: All You Need To Know
"According to the Evidence Act, 1872, the sexual history of a victim is not relevant at all while deciding a sexual assault case," Pandey added. He said, "While it is true that the charges of sexual assault have to be proved beyond reasonable doubt and the prosecution's failure to do so results in acquittal, acquittals should be on merit and not leave an impression as this case does—that the survivors past and her character are decisive and women of easy virtue cannot be raped."
Mrinal Satish, a professor at National Law School said that courts have often relied on 'post-incident behaviour' in rape cases to assess whether the version of the rape survivor is believable or not. "Relying on such behaviour is based on stereotypical notions of how a rape survivor is expected to react," he said. "It can lead to myths, and prejudices impacting rape adjudication. For instance, expecting a survivor to look traumatised, to cry, to immediately narrate the incident to a friend/relative/even a stranger, to not continue talking to the offender etc, and not believing them if they don't do so," said Satish who authored the book Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India.
He said that relying heavily on post-incident behaviour is "deeply problematic" and "should be avoided".
"Why should the evidence of a woman who complains of rape be viewed with doubt, disbelief or suspicion? After all, it is the accused and not the victim of the sex crime who is on trial in the Court," the top court had observed in the 1996 State of Punjab vs Gurmeet Singh verdict.
In the aftermath of Karnataka High Court's June 2020 order, advocate Aparna Bhatt penned an open letter to then Chief Justice of India SA Bobde asking, "Is there a protocol for rape victims to follow post the incident which is written in the law that I am not aware of?"
Bhat also pointed out how judicial attitudes were beset by misogyny and sexism in her letter.
However, senior advocate N Hariharan said that legally, a judge can consider the conduct of any party in a case according to section 8 of the Evidence Act. This, he said, will allow them to draw certain inferences and thus form the basis of their conclusion. "If one takes the Tarun Tejpal case in this context, the conduct of a lady prior to entering the lift and exiting it will have a bearing to the fact whether an incident took place in the lift," he said.
"What was her (victim's) reaction the moment she exited the lift, who was witness to the same, etc, will have a bearing on the appreciation of the evidence the judge is considering," Hariharan said. "The court will then judge the relevant facts and come to a conclusion. If the judge speaks of conduct it is only in this limited sense, otherwise, it is her word against his," the advocate said.