The survivor is on trial

On May 21 2021 women all over India realised that if you described a man other than your husband as ldquocuterdquo or cracked a raunchy joke with your girlfriend you wouldnrsquot be taken seriously if you ever went on to file a rape molestation or sexual harassment caseA Goa trial court acquitted senior journalist Tarun Tejpal 58 of rape charges levelled against him eight years ago by a junior colleague almost 30 years younger at Tehelka magazineTanya Appachu womenrsquos rights lawyerWhile the 527page judgment was disappointing for some it was the derogatory references to the survivorrsquos behaviour and former relationships preferences in dressing chats with friends that left most women furious That it made public details of her name her parentsrsquo identity and the contacts saved on her phone was seen as a lapse by the court according to the Bombay High Courtrsquos vacation bench in Goa Additional Sessions Judge Kshama Joshi stated ldquo there is no corroborative evidence supporting the allegations made by the prosecutrix Her deposition also shows improvement material contradictions omissions and change of versions which does not inspire confidencehelliprdquo It spoke of her ldquoflirtatious and sexual conversations with friends and acquaintancesrdquo and how her chat messages to the accused ldquocontradict factsrdquo The judge condoned the usage of these chats as they are ldquoonly to be read against her claims on oath thathellip was a mere acquaintancecasual friend and the purpose of producing the evidence of these chats is to show that the prosecutrix is lying and that the chats were not referred for the purpose of proving her character It is difficult to believe that the prosecutrix is a truthful and reliable witnessrdquoJoshi said that the survivor was ldquosmiling and looked happy normal in a good moodrdquo in photos taken after the alleged incident She messaged the man she accusedmdashall signs that she wasnrsquot telling the truth The judgment gave less credit to the fact that may be there wasnrsquot enough evidence to prove if the former Tehelka editor had in fact molested his colleague in a moving elevator at a Goa hotel when the magazinersquos staff was attending an annual event It however did lay stress on how the survivorrsquos personality behaviour and actions went against dictates of how a victim should have behavedFamed comedian Bill Cosby was accused of sexual violence by 60 women He walked free last month PicGetty ImagesThe Goa government has filed an appeal against the judgment before the Bombay High Court saying Tejpalrsquos acquittal in the case was fit for retrial citing the trial courtrsquos lack of understanding of the survivorrsquos posttrauma behaviour and censuring of her character The appeal filed before the HCrsquos Goa bench was amended last week to bring on record the judgment and to include further grounds against the acquittal of TejpalNot much seems to have changed from five decades ago when Section 1554 of the Indian Evidence Act stated that ldquowhen a man is prosecuted for rape or an attempt to ravish it may be shown that the prosecutrix was of generally immoral characterrdquo It was only in 2002 that the Indian Evidence Amendment Act 2002 finally deleted Section 1554 from the statute Simultaneously Section 146 which governs what questions can lawfully be asked to a witness in crossexamination was modified to make it impermissible in a prosecution for rape to crossexamine the complainant as to her general moral characterAfter he was accused of rape by a junior colleague eight years ago Tehelka founder and senior journalist Tarun Tejpal was acquitted by a trial court in Goa in May this year PicGetty ImagesThe trend is mirrored in the west Worldfamous comedian and actor Bill Cosby who had been accused by 60 women of sexual harassment walked free last week after his 10year sentence was overturned by a Pennsylvania court because of a ldquoprocess violationrdquo where his lawyers had earlier made an agreement with a state prosecutor that he wouldnrsquot be charged in the caseWhere does this leave the survivorIn 2012 Supreme Court advocate Nipun Saxena had filed a writ petition against India which dealt with how and in what manner the identity of survivors of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule social ostracisation and harassment Today he feels differently ldquoThere was no uniform victim compensation then no one to help them direct them But things have changed since At least now since 2018 there is a onestop crisis centre set up in each districtrdquoBengalurubased Sandhya Menon the face of Indiarsquos MeToo movement says itrsquos time that women and men work as allies to achieve gender justiceWhat Saxena feels that the judiciary often forgets in cases of rapesexual assault is that therersquos a reverse burden of proofmdashwhere the ldquoperson is presumed guilty until proven innocentrdquo ldquoPeople lose sight of thatrdquoSaxena also says that the fact that in the Tejpal case the survivorrsquos phone messages were put on record but not those of the accused is also a reflection of how the police conduct an investigation ldquoThe problem is in the way the Code of Criminal Procedure is framedmdashwe call it an investigative lacuna The investigating agency police and persecuting agency the public prosecutor are different The lawyerrsquos work starts when the trial begins If the lawyer had any say in how the FIR is filed then these discrepancies wouldnrsquot exist A refresher course should be conducted annually for investigating agencies They need to be trained to disassociate themselves from inherent bias and social conditioningrdquoNipun Saxena and Wesley MenezesSpeaking with midday womenrsquos rights lawyer and digital curator Tanya Appachu says ldquoIn Tejpalrsquos case the judgment doesnrsquot discuss evidence because the evidence was not foolproof Criminal jurisprudence is crucial because in India everyone framed or charged is not presumed to be guilty Now in such a scenario individual bias colours how survivors are perceived In court there is the perception of a lsquorightrsquo survivorrdquo She cites the case of the 2012 Delhi bus gang rape where the 23yearold student was raped and physically assaulted and later died of her injuries ldquoIt stirred the country In Tarunrsquos case the survivor apparently came out of the lift smiling Witnesses kept changing their testimony including discussing her previous affairs and flings Ideally a judge shouldnrsquot be judgmental but in this case the judgment is parttextbook and partbiased in my opinionrdquoAppachu goes on to explain why a womanrsquos morality is often up for conversation in the court ldquoThe accused party has to prove consent and they can prove this only by showing that the survivor was already involved with the accused To establish consent a womanrsquos character is discussed in court In a lot of cases courts have noted that lsquonorsquo is a lsquonorsquo The most popular example is when a court pronounced a man guilty after a sex worker charged him with rape Her professional career choice didnrsquot matter because she was able to prove in court that on that day she didnrsquot offer her consentrdquoWhether falsely accused or not everyone charged with rape is entitled to a trial with a defence lawyer According to papers written on how rape defense lawyers plan their case they develop their ldquotheory of the caserdquo a story that explains how their client has come to be falsely accused When the complainant and the accused have known each other a while the lawyers are supposed to thoroughly explore their relationship especially the accuserrsquos perception of the relationship They also investigate social pressures on the accuser and are supposed to ask questions like Did the accuser find himself or herself in trouble with a jealous partner and see making a rape claim as a way to get out of trouble Did the accuser get drunk agree to sex and wake up wanting to blame someone else for behaviour they regretrdquoA wellknown Mumbai model who accused photographer Colston Julian of sexual harassment and abuse in May this year says a survivor has little choice but to be prepared for the character assassination that will come her way From the reluctance of the police to register a complaint to the press asking inappropriate questions the model feels that empathy is seen lacking in cases of sexual assault ldquoItrsquos supposed to be a voyeuristic trip for people It starts with the cops asking lsquowhy are you complaining nowrsquo Itrsquos as if they donrsquot understand what happens when a woman is rapedrdquo The police she says often find it hard to accept that someone who has been subjected to prolonged periods of physical and emotional trauma will take time to process heal and acknowledge the pain before deciding to fight back ldquoI was harassed by the media too Journalists have asked me how wild was the nature of the sex and if BDSM Bondage Domination Sadism Masochism was involved One journalist wanted to know how someone can be raped in a car Another scribe asked what he did to lsquoturn me onrsquo I had to clarify that I wasnrsquot turned on it was rape Often I am asked my opinion on false rape charges The system as it exists now discourages women from speaking uprdquoThe past is often raked up as it was in the case of Tejpalrsquos survivorA woman who is fighting a case in the Dindoshi sessions court against a wellknown Bollywood producerdirector tells midday on condition of anonymity that her exboyfriends were requested to depose in court ldquoI wonder how every past experiencemdashsexual or romanticmdashis relevant to a rape case in which a man clearly forced himself on merdquoWesley Menezes a Mumbaibased advocate who fights rape and abuse cases says that most court experiences are far from empathetic ldquoCharacter assassination is common Thatrsquos the way the defence works We can have a case of a 16yearold being raped and the police will say lsquoshe wanted itrsquo It starts with those in uniform and how they talk The judiciary can only act on what the uniform records Sensitisation needs to start from bottom uprdquoWhile Tejpalrsquos verdict was hailed by many including his brother Minty Tejpal and actor Arjun Mathur who is dating Tejpalrsquos daughter Tiya the Network of Women in Media India NWMI issued a statement standing in solidarity with the survivor applauding her courage and determination to pursue justice as did the Indian Womenrsquos Press Corps IWPCJournalist Suparna Sharma of IWPC told midday ldquoIf we took four steps forward with Priya Ramanirsquos ruling where Ramani was acquitted in a defamation case filed by politician and veteran journalist MJ Akbar who she accused of sexual harassment and the court remarked lsquothe woman has a right to put her grievance on any platform of her choice and even after decadesrsquo this Tejpal verdict takes it many steps back The support for this survivor comes from our lived experience We understand the workings of powerful editors who make or break careers and hand out assignments based on sexual barters They create a huge network of supporters in the industry playing power games of sorts Many journalists go through various degrees of sexism some bordering on abuse as well The rage comes from the judgment which investigates the character of the survivor and not the accused We often are told little about his sexual conduct or past but we know about the survivorrsquos past and present in detailrdquo Sharma describes the Tejpal verdict as ldquomoralistic regressive misogynisticrdquo ldquoThere is a paragraph where the judge discusses in detail whether the survivorrsquos underwear was pulled up or picked up The verdict doesnrsquot talk about the accused at all Thankfully the Bombay HC has been reassuring by calling it out as a rape manual But that said itrsquos a battle that the survivor has to fight and we in every capacity stand by herrdquoAs journalist Sandhya Menon who was the face of Indiarsquos MeToo movement in 2018 after she tweeted that senior journalists had physically and verbally abused her through her career says ldquoWe now need men as allies too as all of us have to work onthis togetherrdquoMenon who is raising her young daughter in Bengaluru says that she has been thinking about the issue for three years ldquoI think the need of the hour is to keep having conversations keep figuring out vocabulary so that women know whatrsquos happening and how to express themselves One canrsquot stay quiet no matter what Complaints have to be filed and cases have to be registered no matter what they think of the woman who is accusing someone of rape I donrsquot understand why the police advise women not to talk Sensitisation training also needs to come with bias trainingmdashwhere people can put aside what they feel and go solely with the facts with what happenedrdquo