Gendered Stereotypes in Adjudication of Rape Cases in India – An Empirical Analysis of the Language used by the Courts

By | July 14, 2020
Gendered Stereotypes in Adjudication of Rape Cases in India – An Empirical Analysis of the Language used by the Courts

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This article on ‘Gendered Stereotypes’ aims to discuss how these rape myths and harsh stereotypes seep into our judicial processes and how these notions of gender rest on stereotypes which further enable sexism in the society. This article will analyze different judgements and observations that reek of sexist gendered notions such as the use of a stereotypical image of a rape victim as a benchmark of credibility, the use of problematic and verbose language by the courts while analyzing its consequences.

Gendered Stereotypes in Adjudication of Rape Cases in India – An Empirical Analysis of the Language used by the Courts

Introduction

Arguably, the most prominent aspect that stereotyping manifests, is through the treatment of victims by courts in criminal trials and the subsequent sentencing in rape cases wherein myths surrounding rape play into the decision-making process of the courts.[1] The article will also cover certain instances wherein the courts have attempted to break conventional gender roles and rape stereotypes before proceeding with the conclusion.

What is a Rape Myth?

A rape myth can be defined as a prejudicial, stereotyped or false belief about rape and the fact that victims and rapists[2] which can often lead to victim shaming, blaming, can create a bias in a rape trial. A few examples of rape myths can relate to how a woman ought to have reacted when raped,[3] the court’s perception of the victim’s sexual history, the indication of scars and bruises on a women’s body as a way to determine consent etc.,[4]

Judicial perspectives in Rape Trials

The judicial process in India in terms of how we view and treat rape victims has evolved compared to what it was in the era of post-independence. In cases as early as 1952,[5] the courts have held that a conviction can be based solely on the testimony of the rape victim. However, through judicial interpretation, a rule of prudence was developed wherein corroboration may be required.[6]

Laws such as Section 155 (4) of the Indian Evidence Act 1872,[7] permitted the sexual history of a rape victim as relevant to deem her immoral and to determine her credibility as a witness. Even if now repealed, this provision seeped into the adjudication process by the continued reliance placed on the victim’s sexual past by the courts and the defence alike.

These rigid rules, as explained further in the article, were read in ways that worked to the advantage of the accused and operated to cause shame to the victim [8] even when the law is designed to believe the experiences of women. For the sake of convenience, the decisions have been sub-categorized based on the language used by the Courts.

I. Stereotyping Rape Victims

A research conducted by the Human Rights Watch on the barriers to justice for a rape victim, covers the issue of bias in the adjudication process wherein harmful stereotypes are still prevalent through the use of derogatory language by the judges.[9]

The continuous use of such language is indicative of the judge’s own notions which translates into creating a stereotypical idea of a rape victim. This is further rooted in provisions such a Section 280 of the Code of Criminal Procedure[10] that enables a judge to take note of the demeanour of the victim while under examination.

Judicial Interpretations

(i). In the case of Kamalanathha v. State of Tamil Nadu,[11] the Supreme Court agrees with the observations made by the Trial Court wherein while recalling the forcible act of rape, the victim was teary and that the pain along with her shocked conscience could be felt through her eyes.[12]

(ii). In Raja v. State of Karnataka,[13] while passing judgement of acquittal for the appellants alleged of gang-raping a woman, the Court held that her conduct as a rape victim was unusual as, instead of running back home, devastated and humiliated after the act of rape inflicted upon her, the victim stayed in the area where the alleged act took place to enquire about persons accused of the crime.

The Court further held that her confidence to stay alone past midnight on the streets coupled with the medical opinion that she was accustomed to sexual intercourse even though she was living separately from her husband for more than a year is out of the ordinary. For the Court, these circumstances and the victims’ conduct was not consistent with a victim of forcible rape.

(iii). More recently, in a bail order passed by the Karnataka High Court in the case of Rakesh B v. State of Karnataka,[14] the Court stated that it is unbecoming of an Indian woman to sleep after being ravished and how this conduct is not consistent with the reaction of an Indian woman after being raped.

(iv). In the case of Pratap Mishra v. State of Orrisa,[15] the Court disbelieved the testimony of a woman alleging gang rape, who was living as a concubine with a married man held that if the story of the prosecutrix was true, then there should have been visible signs of bruising on the neck, inner thighs, chest or any other part of the body. The Court further held that the victim is expected to resist rape in the stiffest of ways which should be evident from injuries on the parts of the accused.

Even though there exists no provision that expects rape victims to resist in the stiffest of ways, the Court introduces an additional requirement as a special rule of evidence that the absence of resistance is somewhat indicative of consent. Also, there appears to be a distinction for the courts between the treatment afforded to an unmarried woman versus a sexually active woman, and the relationship between these two to a women’s diminished marketability after being raped.

(v). For instance, in the case of Bharwada v. State of Gujarat,[16] the Court listed the characteristics of a rape victim whose testimony could be believed without corroborative evidence. The Court held that even a young girl of a tender age of just ten or twelve can be trusted to be aware of the fact that the reputation of the entire family can be jeopardized once the story of rape comes to light and that her chances of getting married and settling down in a respectable family will be diminished if questions as to her chastity gain attention in the society.

In conclusion, the Court made a final remark that a young girl would rather face shame, injury and harassment rather than lodge a false case reflecting her chastity. The Court completely disregards the implications of their words and forgets that the use of such language can reinforce the societal stigma surrounding rape.

(vi). In the case of Madan Kakkad v. Naval Dubey,[17] the Court observed that the victim lost her virginity during rape at the tender age of eight years and now, at nineteen years, the victim remains unmarried, living with the agony of the traumatic experience and the deathless shame suffered by her. The language of the Court here treats the rape of a virgin gravely as compared to the rape of a more experienced married woman in comparison to the cases of Raja v. State of Karnataka (supra) and Pratap Mishra (supra).

The Burden of Performance

To satisfy the judge’s notion of a stereotypical rape victim, another burden is thrust upon the prosecution – the burden of performance,[18] even though studies indicate that there are no typical reactions to rape.[19] The continuous use of such language embeds sexist notions in how we perceive victims while setting standards that all victims ought to conform in order to be considered ‘credible.’

Gregory Matoesian analyses the language used in rape trials and characterizes these standards as indicative of a patriarchal logic of sexual rationality wherein arbitrary male standards create and recreate sexually gendered meanings that accomplish and generate inconsistencies in the victim’s account of the incident.[20]

The use of such language reinforces the stigma relating the rapes in the Indian Society and can have adverse implications such as hesitance in reporting rape cases due to trauma-generating factors like the victim’s history, reputation and other extralegal factors being brought in adjudication.

II. Ingrained sexism and patriarchal mindset in adjudication

Often, notions of a judge’s sexism are evident through the way a decision reads which deems women as chattels or liabilities who will attach to anyone for their benefit.[21]

Judicial Interpretations

  1. In the case of Jagannivasan v. State of Kerala,[22] the two-judge bench of the Supreme Court acquitted the appellant while holding that the accused deserved the benefit of the doubt as he was an attractive bachelor with a stable job in Dubai and that he was a catch for women who wished to be bonded in matrimony.
  2. In the case of Sudhanshu Sekhar v. State of Orissa,[23] while disbelieving the victim’s account, the Court held that doubt was cast upon her testimony after her claim of being a virgin was disproved by medical evidence which suggested that she was habituated to sex. While acknowledging that the victim has no reason to falsely implicate the accused, the Court simply characterized the incident as one where the victim changes her mind after others came to know about her shameful conduct.

In other judgements, the observations of the Courts equate rape to be an attack on the prestige of the victim and her family.[24] The Courts have also gone as far as to say that a murderer destroys the physical form of the victim whereas a rapist degrades the soul of the helpless victim.[25]

All these instances reflect the inherent contradictions in how the Judiciary views women as both, agents and victims. When the perpetrator is a respectable “bachelor” deserving of the benefit of the doubt,[26] the woman is seen as an agent. On the other hand, when the perpetrator is heinous, she is seen as a victim.[27]

Additionally, the lack of appropriate resistance deduces women to ineffectual agents who consented to sex by failing to resist.[28]  These contradictions are evidence of dominant notions of male and female sexuality that surface in the discourse of rape trials.

The undue reliance on the sexual past of the victim works as a way to characterize women in one of many roles, either she is a gold-digger, seeking to attach herself to a successful man[29] or she is a victim of an unspeakable crime[30] or she is someone who is so bothered by the impact of consensual intercourse on her reputation that she can turn that into an act of rape.[31] Once these questions are determined, the rest of the story narrates itself which works as a way to supplant the experiences of a woman and her account of rape.[32]

III. Use of inappropriate language: the two extremes

The Courts, in many instances, either undermine the gravity of rape or they take an extreme stance of equating the rape victim as undergoing a “deep sense of deathless shame.”[33]

Judicial Interpretations

  1. In the case of State of Madhya Pradesh v. Madanlal,[34] while deciding the case of a seven-year-old rape victim, the Court held that for a woman, her body is her temple and that the act of rape is an offence against the body which suffocates and sullies the reputation of the victim. The Court equates reputation as being the richest jewel anyone can ever conceive in life and when defiled, the purest treasure is lost.
  2. In the case of Rafiq v. State of Uttar Pradesh,[35] while justifying why a women’s testimony does not require corroboration and that conviction can be based solely on her testimony, the Court held that no women of honour will lie about being raped as she sacrifices what is dearest to her. Thereafter, he equates the act of being ravished to constitute not just physical injury but also, a deep sense of deathless shame.
  3. n Bharwada v. State of Gujarat,[36] the Court reduced the sentence of the accused convicted of raping girls aged ten and twelve-years-old from twenty-four years of rigorous imprisonment to the already served fifteen months on the grounds that he had suffered shame by losing his job, suffering humiliation and that his daughter’s prospects of marriage are diminished due to her father’s guilt.

Such decisions reinforce the stigma that rape is worse than committing murder and that the victim might be better off dead as she continues to suffer humiliation and shame after the act of rape. Rape is seen as an attack on the dignity, reputation of both, family and the victim and, the honour of the victim while the issue of her chastity hovers in the background.

The excessive reliance on all these factors as a tool for justifying convictions is a betrayal to the trauma suffered by her in terms of her sexual autonomy and body and, places primary focus on social constructs and beliefs such as reputation and purity. Perhaps this is why a man can never be raped, the concept of marital rape remains foreign and not too long ago, a woman of easy virtue could not be raped.[37][38]

IV. A glimmer of hope through progressive judgements

Although rare, there have been instances wherein the Court has been sensitive, and attempted to break the orthodox stereotypes.

Important Judgements

1. State of Uttar Pradesh v. Pappu

In the case of State of Uttar Pradesh v. Pappu,[39] the Court took a strong stance by holding that the even if the victim was accustomed to sexual intercourse, that factor is not a question that needs to be determined in a rape trial. No one has a license to rape a woman even if, hypothetically speaking, she had lost her virginity earlier.

Further, while holding that the position of the prosecutrix is higher than an injured witness due to the emotional, physical and psychological trauma suffered by her, the Court held that a woman has a right to refuse sexual intercourse and that she is not a vulnerable object or prey who can be assaulted.

2. Miss XYZ v. State of Gujarat and Anr. (2019) 

In a relatively recent judgement,[40] a three-judge bench of the Supreme Court quashed the order dismissing the criminal proceedings against the accused. The order was passed by the Gujarat High Court wherein the accused was alleged of sexually assaulting and blackmailing his co-worker.

The Gujarat High Court passed the order based on the agreement/settlement arrived at by both parties while recording its finding that a physical relationship existed between the two. The Supreme Court set the record straight that where a woman alleges that the sexual intercourse was against her consent, the Court shall presume that she did not consent.

While taking into consideration various other factors that the High Court overlooked, including the fact that the document of the settlement was obtained under coercion, the High Court erred in quashing the criminal proceedings against the accused.[41]

Conclusion

This article has attempted to highlight how gendered notions remain central in a rape trial and how these rape myths are very much prevalent in adjudication. These myths act as tools to raise inconsistencies and absurdities in the conduct of the rape victim which then gets prioritized as a basis to argue a victim’s credibility and in other cases, the courts go over and beyond to deem rape as an act of invasion on a woman’s body which is her temple and that after being raped, she continues to live with deathless shame.

The use of such extreme language leads to revictimization of the victim and constrains her ability to present her version of the incident, whilst instilling a fear of facing further humiliation inside the courtroom. The article has attempted to trace the hegemonic notions through sexist stereotypes, prevalent in the Judiciary by focusing on the victim’s behaviour rather than the actions of the perpetrator or by painting a stereotypical image of an Indian rape victim.

Even in cases where the Courts attempt to take a sensitive approach, they inevitably end up stereotyping the image of an accused and the victim by reiterating the already existent stereotypes.[42] These instances also have a juridogenic potential as the consequences of the use of such language could generate more harm through the so-called remedy. [43]

In its implication, the perspective adopted by the Courts continues to fortify the secondary status of women while compelling us to ask tough questions regarding the efficacy of a patriarchal mechanism of delivering justice to rape victims. The author understands that changing the language will not end rape but, the author believes that this issue can be addressed once we realize the consequences of language.

A heightened sense of responsibility is expected from the courts as these words, when coming from an authority, tend to perpetuate bias in the Society, especially when language has the power to go beyond the courtroom and to create a narrative which is reflective of the whole Society.

We need to empower power and dismantle the rape culture by distancing ourselves from these harmful stereotypes and gendered notions that continue to impede the delivery of justice to rape victims. Hence, there is an increased urgency in the way this issue needs to be addressed and how the judges need to detach themselves from a language that clings to rape myths and seeks to replace the experiences of a rape victim.


Authored by: Juhi Senguttuvan

Student, O.P. Jindal Global University

This Article was shortlisted in NARI SHAKTI 1st National Article Writing Competition 2020


[1] Smith & Skinner, How Rape Myths are used and Challenged in Rape and Sexual Assault Trials, 26, Social and Legal Studies, 441-466, (2017).

[2] Martha Burt, Cultural Myths and Supports for Rape, 38, Journal of Personality and Social Psychology, 217-220 (1980).

[3] Renata Bongiorno, Blake McKimmie & Barbara Masser, The Selective Use of Rape-Victim Stereotypes to Protect Culturally Similar Perpetrators,40,  Psychology of a Women Quarterly, 398-413, (2016).

[4] Jessica Smythe, The Lies Rape Myths Tell Us and Why We Have to Dispel Them, Sexual Trauma and Recovery Service, (Jun. 27, 2020, 8:00 PM), Available Here

[5] Rameshwar Kalyan v. State of Rajasthan AIR 1952 SC 54.

[6] Gurucharan Singh v. State of Haryana (1972) 2 SCC 749 ¶ 10.

[7] Act No. 1 of 1872.

[8] Susan Ehrlich, Representing Rape, language and sexual consent, 121-122 (1 ed., Routledge 2001).

[9] Human Rights Watch, Everyone Blames Me: Barriers to Justice and Support Services for Sexual Assault Survivors on India,8-9, 2017.

[10] Act No. 2 of 1974, s 280.

[11] (2005) 5 SCC 194

[12] Id.  ¶ 19.

[13] (2016) 10 SCC 506 ¶ 28 & 29.

[14] Cri Petition No. 2427 of 2020 ¶ 3 (c).

[15] (1977) 3 SCC 41 ¶ 8 & 9.

[16] (1983) 3 SCC 217 ¶ 10 & 12.

[17] (1992) 3 SCC 204 ¶ 53.

[18] Corey Rayburn, To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials, 15 Journal of Gender and Law, Columbia, 439, (2006).

[19] G.S. Bajpai & Raghav Mendiratta, Gender Notions in Judgements of Rape Cases: Facing the Disturbing Reality, 60, Journal of Indian Law Institute, 299, 303, (2018).

[20] Gregory Matoesian, Language, Law and Society: Policy Implications of the Kennedy Smith Rape Trial, 29, Law and Society Review, 669, 682, (1995).

[21] See Supra Note 19.

[22](1995) Supp 3 SCC 204 ¶ 5.

[23] (2002) 10 SCC 743 ¶ 19.

[24] Om Prakash v. State of Uttar Pradesh (2006) 9 SCC 787 ¶ 13.

[25] Id. ¶ 14.

[26] See Supra Note 25.

[27] See Supra Note 17.

[28] Tukaram and Anr. v. State of Maharashtra (1979) 2 SCC and Mahmood Farooqui v. Govt of NCT 2018 Cri LJ 3457 ¶ 78.

[29] See Supra Note 25.

[30] See Supra Note 27.

[31] See Supra Note 26.

[32] See Supra Note 9.

[33] Rafiq v. State of Uttar Pradesh (1980) 4 SCC 262 ¶ 9.

[34] (2015) 7 SCC 681 ¶ 18.

[35] (1980) 4 SCC 262 ¶ 6.

[36](1983) 3 SCC 217 ¶ 13.

[37]Arya Raje, Honour in the Courtroom, KAFILA (Jun. 29, 2020, 8:00 PM), Available Here

[38]Tukaram and Anr. v. State of Maharashtra (1979) 2 SCC 143 ¶ 10 & 19.

[39] (2005) 3 SCC 594 ¶ 11 & 12.

[40] Miss XYZ v. State of Gujarat and Anr. (2019) 10 SCC 337.

[41] Id. ¶ 8 & 14.

[42] See Supra Note 20.

[43] See Supra Note 9, pp 1.


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  • Ananya Kaul says:

    Well written. This has brilliant analysis!

  • Siddhant Khanna says:

    Brilliantly written. Gave further insight on how rape cases are seen by courts in our country.