“In rape cases it’s strange to me when people say, Well why didn’t you fight him? If you woke up to a robber in your home, saw him taking your stuff, people wouldn’t ask, Well why didn’t you fight him? Why didn’t you tell him no? He’s already violating an unspoken rule, why would he suddenly decide to adhere to reason? What would give you reason to think he’d stop if you told him to? And in this case, with my being unconscious, why were there still so many questions?” – Chanel Miller, Know My Name.

When eighteen year-old Marie reported her rape to the police, she was not believed. The cause of doubt was the lack of any evidence at the supposed crime scene, Marie’s traumatic past of having gone through fifteen abusive foster homes and her surprising calmness on the next day of the alleged crime.“She called and said, ‘I’ve been raped,’” Shannon, her former foster mom said. “There was just no emotion. It was like she was telling me that she’d made a sandwich.” Shannon suspected if Marie was lying, because she was neither upset nor hysterical but oddly composed. In the kitchen, Marie didn’t meet her gaze. In the bedroom where she had claimed to be raped, Marie seemed casual with nothing to suggest that something disturbing had happened at the very same place. Outside, Marie “was on the grass, rolling around and giggling and laughing”. And when the two went to buy new bedding(since her old bedding having been taken as evidence) Marie insisted on buying the same set. “Why would you want to have the same sheets and bedspread to look at every day when you’d been raped on this bed set?” Shannon wondered. After Marie’s credibility was doubted and the case dismissed, the rapist did exactly similar crimes with five other women in Colorado. When he was arrested, he confessed that he only left behind hair and fluids in Marie’s case. Rest were very cleanly done. He said he was never willing to stop.

What struck me the most about the serial rapes of Washington and Colorado was that all the victims responded differently to the rapes. Some healed through prayers. Some went to therapy. Some took their time staying busy in regular things and some changed their house or city. On 22nd June 2020, Justice Krishna S. Dixit observed in the case of Rakesh B vs State of Karnataka that “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. That is not the way our women react when ravished.” The decision of the judge also seemed affected by the fact that she was at her office at 11 pm, consumed drinks with the petitioner and allowed him to stay till the morning. Judgements of rape cases in India, are still widely influenced by rape myths. Rape myths are stereotypes which tend to describe how a “typical woman” would react to rape. But in most cases, they end up being prescriptive and mandating how a woman ought to react to rape. Mrinal Satish notes in his book Discretion, Discrimination and The Rule of Law that rape adjudication, conviction and sentencing is heavily influenced by rape myths and stereotypes. These include the myth that rape by a stranger is more traumatic than rape by an acquaintance, that “genuine” rape victims report the incident to authorities without delay, that victims of rape are visibly emotional when recounting their experience and non-consensual intercourse always involves struggle or physical resistance resulting in injuries to their bodies and genitals(which is often considered as corroborative evidence).The myth that a woman necessarily resisted rape was presumed on the basis that the ideal woman treasured her chastity and could go to any extent to prevent it from being ‘stolen’. Past sexual history affected the credibility of the woman, and more so if the victim had a past of consensual sexual involvement with the accused. The demeanour of the victim after the crime affected the sentencing to a large extent and courts often reduced sentences when it appeared that the victim had recovered from the trauma of being raped.

The origins of this judicial tradition are not recent. In the apparently progressive Bharwada Boginbhai Hirjibhai vs State of Gujarat (1983) case, while affirming an accused can be convicted solely on the basis of the rape survivor’s testimony, the court listed out several reasons because of which a female in “the western world” may level a false accusation against a male: if she was a ‘gold digger’, suffering from psychological neurosis, was vindictive or jealous or attention-seeking. The court went on to discuss reasons why the testimony of an Indian woman compared to the western woman, is worthy of being relied upon: because in a tradition bound society like ours any woman will be extremely reluctant even to admit that any incident related to her virginity and honour had occurred unless it was true. Because she risked losing personal relations, finding a suitable matrimonial match from a respectable family, for fear of social stigma or of being considered promiscuous or in some way responsible for the incident regardless of her innocence. In Deepak Gulati vs state of Haryana(2013), Supreme Court stated that a “rapist degrades and defiles the soul of a helpless female” and inflicts a “serious blow to the supreme honour of a woman, and offends both, her esteem and her dignity”. This notion was repeated in Lillu Rajesh and others vs State of Haryana(2014) and in Delhi High Court in Rohit Bansal vs State (2015) in which the court believed “the victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia”. If the survivor refrained from talking about the trauma with her family or friends immediately after it, gathered herself in a short span and tried to move on with her life, or was not overwhelmed by the severity of the incident, her accusation was highly doubted. This narrative and it’s implication was seen in Raja vs State of Karnataka (2016) in which the Court observed that the victim’s reaction was “not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse”. The accused were acquitted on the grounds that the victim was “accustomed to sexual intercourse when admittedly she had been living separately from her husband for one-and-a-half years before the incident”. “Instead of hurrying back home in a distressed, humiliated and devastated state, she stayed back in and around the place of occurrence…her confident movements alone past midnight, in that state are also out of the ordinary.” Textbooks of medical jurisprudence suggest that non-consensual intercourse necessarily leads to genital injuries and marks of struggle on the victim’s body. They recommend noting the state of the woman’s hymen, the elasticity of her vagina, using her past sexual history to determine the truth in an allegation of rape. In Rajesh vs State of Rajasthan (2017), the court concluded,“The medical evidence did not indicate any injury on any part of her body which suggested she was never subjected to any forcible rape”.

The gravity, sentencing and the urgency of the decision-making when it comes to a rape case, is often proportional to the society’s outcry. The involvement of media, which is the major reason behind the provoked “collective conscience” of the civilians, depends on the heinousness of the crime and condition of the victim. For the victim to be taken seriously, venerated and made into an inspiration, she must die. Victims who outlive their crimes, like Cheryl Araujo or Suzzete Jordan, are asked questions about their marital status, their habits of clubbing, their audacity of staying out till late in the night. They are branded the enemy of state or accused of being a political agent, called a hooker whose “client had harsh sex with her”, retraumatized by being asked to narrate her incidence again and again so that the police or defence or media can look for discrepancies in her then and now statements. The rape victim is always asked if she tried “saying no”, as if the answer is assumed to be yes till a woman revokes the agreement. As if a man always has the consent of touching a woman’s body, till she actively fights him off and proves her nobility. As if it’s the woman’s responsibility to make sure she isn’t provoking anyone at any time, doesn’t matter if she is six years old or sixty, if she is wearing a veil or skirt. Unfortunately, survivors of sexual assault aren’t epitomes of perfection and “perfect victim” is a myth. They might have done terrible things in their pasts, but even the bad, the immoral, the imperfect women do not deserve to be raped. “It sounds as if she slept with almost every single man on the planet,” Kathleen Bliss,the defense attorney had said refering to model Janice Dickinson at Bill Cosby’s retrial.“Is Ms. Dickinson really the moral beacon the women’s movement wants?” Bliss asked. Maybe not, but does Ms.Dickinson have human rights which must be protected by the state? The answer is a yes.

In her essay The Great Indian Rape trick, Arundhati Roy criticized about the sobered,hapless and sanitized version of Phoolan Devi that Shekhar Kapoor had tried to show in his film Bandit Queen. She wrote “The Rape of a nice Woman (saucy, headstrong, foul-mouthed perhaps, but basicaly moral, sexually moral) – is one thing. The rape of a nasty/perceived-to-be-immoral woman, is quite another. It wouldn’t be quite so bad. You wouldn’t feel quite so sorry. Perhaps you wouldn’t feel sorry at all. Any policeman will tell you that.Whenever the police are accused of custodial rape, they immediately set to work. Not to prove that she wasn’t raped. But to prove that she wasn’t nice. To prove that she was a loose woman. A prostitute. A divorcee. Or an Elopee – ie: She asked for it. Same difference. Bandit Queen -the film, does not make a case against Rape. It makes its case against the Rape of nice (read moral), women.”  Trans-women or sex workers are considered “unrapeable”. Women who are raped by army men or paramilitary are considered as “collateral damage”. Adivasi or Dalit women like the victims in the Mathura or Unnao cases are burnt alive or stripped of any basic dignity. Date-rapes or rapes done by intimate partners are considered as “bad sex”.

During the inception of the #MeToo movement, eminent feminist Germaine Greer , while speaking to Sydney Morning Herald had said, “what makes it different is when the man has economic power, as Harvey Weinstein has. If you spread your legs because he said ‘be nice to me and I’ll give you a job in a movie’ then I’m afraid that’s tantamount to consent, and it’s too late now to start whingeing about that”. Except that consent taken by coercion involving a risk to your family, life or career, doesnt make it valid. The more the influence and power of the rapist, the more you stand to lose with a “no”. Rape has always been about power dynamics. Roman Polanski or Pablo Neruda committing a sexual assault is not the same as a vegetable vendor or a bus driver or a black man committing the same assault. In the latter case, these poor, powerless “miscreants” will be hanged as a rarest of rare case or shot in an apparent encounter. While in the former case, people will suddenly make art and the artist exclusive. “Weinstein was a bad man, but he had an eye for the finest films”.”Brock Turner made a mistake but boy, can he swim”.”Neruda did rape a woman but how wonderfully did he write about it”. Punishment in rape cases are never related to justice, healing, safety, reparations or accountability. They are only dispensed to calm an angry and blood thirsty people, and keep the illusion of gender equality intact till the next time such a rape happens.

In legal terms or in the social sense, rape is just an incident incompliant with the rules of a society. But for women, it’s perpetual mental agony. Fear is the background of our lives, a sword drawn against our throats on every evening when we go out for a jog or each time we board a public bus. It’s always a matter of when and not a matter of if. “It’s the evening you stop going to the corner store because, the night before, a stranger followed you home. It’s the late hour that a father or stepfather or brother or uncle climbs into your bed” writes Soraya Chemaly in Rage Becomes Her.”It’s when you’re racing to catch a bus, hear a person demand a blow job, and turn to see that it’s a police officer. It’s the second your teacher tells you to cover your shoulders because you’ll ‘distract the boys, and what will your male teachers do?’ It’s the minute you decide not to travel to a place you’ve always dreamed about visiting and are accused of being ‘unadventurous.’ It’s the sting of knowing that exactly as the world starts expanding for most boys, it begins to shrink for you. All of this goes on all day, every day, without anyone really uttering the word rape in a way that grandfathers, fathers, brothers, uncles, teachers, and friends will hear it, let alone seriously reflect on what it means.

Ask a man what his greatest fear is about serving jail time, and he will almost inevitably say he fears being raped. What can we deduce from the fact that jail is to men what life is to so many women?”

Bijaya Biswal is a doctor and social activist working for LGBTQIA rights in Odisha.

Twitter: @bijaya_biswal


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