What is Unbecoming of a Woman, Again?
Justice for survivors of sexual assault seems like a distant dream: no exaggeration. To muster the courage to speak up is one thing, and to pursue legal action is a whole different challenge altogether. The run up to making a decision to seek legal recourse involves several factors – including the threat of being retraumatized with every round of telling and retelling one’s story without the certainty of how systems will respond. Structural violence is a dangerous and defeating reality that several survivors are forced to face in their pursuit of justice. On the other hand, perpetrators find systemic favor, weaponize systemic apathy into imposing silence on a survivor, and walk scot free.
In a recent decision, affirming this grim reality, the Karnataka High Court ruled that it was “unbecoming of an Indian woman” to sleep after she was raped, and went on to grant pre-arrest bail to a man accused of the crimes of rape, cheating, and criminal intimidation. Justice Krishna S Dixit, on the single bench, dismissed the complainant’s claim of having slept after the incident of rape because she was tired, and used the aforementioned phrase to dismiss her testimony. In his short order, the judge wrote: “That is not the way our women react when they are ravished.”
His order also recorded, as a reason for the grant of bail, that the complainant had not explained why she went to her office at 11:00 PM on the day of the alleged crime, and did not object to having drinks with the accused. Further, the judge also questioned the complainant for why she had not approached the court earlier when the accused had “allegedly forced her for sexual favors,” and called the case a “bit difficult to believe at this stage.” Despite the state counsel’s insistence that the crimes are grave and that there was enough proof that the accused had committed the crime, and that it was unsafe for society at large if the accused were granted bail. The judge dismissed this claim, too, saying that the “serious nature” of a crime cannot be a criterion for the denial of a citizen’s liberty, “when no prima facie case has been made out by the police.”
No country for non-cis-het-men
Systemic failure of survivors of sexual assault is arguably as old as the hills – if anyone was keeping count. From the Mathura case to date, apathy from the security sector, the judiciary, and society in several ways has been a common denominator. In a country where the Supreme Court has established that the right against sexual harassment – in laying down guidelines in a case that emerged out of a gang-rape incident (Vishaka v. State of Rajasthan), to disrespect a survivor’s agency, trauma, and challenges flies in the face of established legal principles.
The principle of beneficial construction places an aggrieved person front and center – and when the law is to be interpreted, it’s first priority is to protect the individual aggrieved. Filing a case to prosecute a crime of rape takes a major leap of faith: faith in the system, in the community, and in society, with the hope that justice will be delivered. To have the judiciary build a wall and keep the survivor out – with insensitive, traumatizing language, no less, is to reduce the humanity of a survivor.
The most striking absurdity in this judgment is the assertion that there is a certain way of “being” when one is raped or sexually assaulted. Is a crime of rape not unbecoming, first? Isn’t that the priority in a case instead of an abstract cis-het-male-established construction of the idea of “an Indian woman” and the archaic ideas of what is “becoming” and “unbecoming” of this one-dimensional identity?