Of court and 'promiscuity' of a rape-survivor

Citing an astounding reason of 'possible promiscuity of rape survivor', the Punjab and Haryana High Court recently granted bail to three accused in a case of sexually assaulting a girl. And, if this bail order has any indication, the sexual indulgence has different subtexts and corollaries for men and women in India. Incredibly, the same court, which ordered for psychiatric treatment of the accused at AIIMS and get cured of their 'behavioural aberration' and 'voyeuristic tendencies' and ask the accused to pay Rs 10 lakh to the survivor, had reasoned out girl's 'promiscuity' for her sexual assault – pinning most of the blame on her. Surprisingly, in its order granting bail, the judges suggested the case not as an issue of sexual violence but of a generation that is unable to comprehend the worth of a relationship based on respect and understanding. It may be noted that in the last few years, courts have been the precursor in fighting crimes against women. Judicial activism reached its pinnacle with the Vishakha guidelines, in which the Supreme Court acknowledged and relied to a great extent on international treaties that had not been transformed into municipal law and provided the first authoritative decision of 'sexual harassment' in India – proposing the route of judicial legislation in the crimes against women. There have been several other rulings by the Supreme Court restating the principles of justice and pointing out that rape is not just a crime against an individual but against society. But, when the Double Bench of the high court observed that the rape-survivor had enjoyed a certain comfort level with the offenders as the victim's narrative indicated about her casual relationships with friends, acquaintances,

Judicial activism reached its pinnacle with the Vishakha guidelines, in which the Supreme Court acknowledged and relied to a great extent on international treaties that had not been transformed into municipal law and provided the first authoritative decision of 'sexual harassment' in India – proposing the route of judicial legislation in the crimes against women. There have been several other rulings by the Supreme Court restating the principles of justice and pointing out that rape is not just a crime against an individual but against society. But, when the Double Bench of the high court observed that the rape-survivor had enjoyed a certain comfort level with the offenders as the victim's narrative indicated about her casual relationships with friends, acquaintances, adventurism and experimentation in sexual encounters. The obsession of our judiciary with the use of sophisticated, flowery language does not undo the fact that the 'misadventure stemming from a promiscuous attitude and a voyeuristic mind' was apparently a reason for the judges to order a suspension of the sentence of the accused. The paternalistic tone of the judgement was particularly alarming when it put the survivor and the accused on similar footings for using cigarettes, condoms, and alcohol. Now, the million-dollar question is whether this case was related to the sexuality of a woman or about sexual intercourse. The answer is a big 'No' as it clearly indicated a betrayal of trust and faith that the woman had reposed in the offenders and of non-consensual, forced sex. It is worth remembering that the Supreme Court has categorically laid down the golden rule in 1991 that men do not have a right to violate even a prostitute and any attempt to indulge in sex without the woman's consent would constitute rape. It clearly states: "The unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect herself if there is an attempt to violate her person against her wish. She is equally entitled to protection of law." Sadly, referring her habits of smoking and not bearing on the behavioural aspects of her 'sexual encounters', the court observed the crime was not so 'gut-wrenching' to hold the accused liable.

Can this imply that the law contains various 'degrees of rape' which would determine the degree of 'mens rea' of the accused – where only the gravest incidents are punishable and if something falls below the law's taste – it would have different interpretations. Where have these elusive doorsills been given in the law? Who is the law to quantify the suffering of one over the other? The rape of a priest is no different than the rape of a sex worker. The rape of a loose individual who allegedly 'asked for it' is no different than the rape of a chaste individual. The law also does not say that the victim cannot be the woman who has had sex in the past and dares to wear miniskirts in the bar. Debates on women's equality apart, the society continues to have much greater tolerance for sexual indulgence by men. Women are increasingly subjected to moral policing, and branded as 'promiscuous' and of an 'easy virtue'. And, that has created a 'culture of silence' for the women as in fear of getting ostracised, they had no option other than to sob tight-lipped. 'Speaking out' can prove to be a life threat for a woman – she will be 'shamed' in ways that will end up silencing hundreds of others.