Through this write-up, I wish to address
the various misconceptions about complaints of sexual abuse. I thank
everyone whom I have been speaking to recently in Srinagar, as it is the
incessant slander campaign against the complainant in Health Department
case that has inspired this write-up.
JNU
“Do you have any evidence of being molested”, the complainant in the
Health Department case was asked by an enquiry officer. Mathura, the 16
year old tribal girl whose custodial rape by two policemen in 1972 led
to widespread protests and a change in the law, was told by the court
that she may have incited the cops, who were drunk on duty, since she
was habituated to sex!
JNU Wajahat Habibullah, who was given the task of
investigating into the Kunan Poshpora mass rape by army, had found the
narratives of survivors “exxagerated”, although he believed that
something had taken place. Bhanwari Devi is a Dalit woman who was
gangraped at the workplace by five men including an uncle-nephew duo
while her husband was beaten up and had become unconscious.
Shehla Rashid The court,
letting off all accused, said that upper caste men cannot rape lower
caste women because an upper caste person does not even touch a lower
caste person! The court also said that an uncle could not have raped in
the presence of his nephew. The judge believed in the sanctity of both
caste and family and, based on his opinion of family and caste,
pronounced the offenders not guilty. The Suryanelli rape case involved
40 men who kidnapped and gangraped a 16 year old girl for 40 days.
Shehla Rashid The
doctor said that her private parts had become so sore that they would
bleed even by touching. In 2005, however, the Kerala State High Court
acquited all accused (except one) saying that she had had consensual sex
with all of them! It was only in 2013 that the Supreme Court of India
reversed this judgment, describing it as shocking. The conviction rate
for rape remains around 26% in India, despite some spotlight cases
getting speedy justice.
standwithJNU The conviction rate in J&K is 3.26%.
The invisibility of molestation is an even bigger issue because
molestation is extremely widespread and is difficult to prove. In the
Health Department case, gossip campaigns have successfully floated the
question: “why didn’t anyone support her when she was molested?” Any
woman who has travelled by a public bus in Srinagar and has dared to
raise her voice against molestation will testify that most people, since
they didn’t see the man do anything, will maintain silence at best; or
they would look at suspicion with the victim, at worst. What evidence do
we have,
standwithJNU but our frustration, to prove that we have been harassed for
years on public buses? How many women have spoken out against such
widespread, yet invisible, behavior? How many have gone to the police?
How many have received anything amounting to justice? The idea that good
girls “ignore these things”, and do not speak out, is the ideology of
victim blaming and character assassination.
Legal safeguards ignored
In view of the default mistrust of women’s narratives, two amendments
to the Criminal Law in India were made, each one after huge mass
movements. First, after the Mathura rape case verdict, the Criminal Law
Amendment of 1983 shifted the burden of proof in cases of custodial rape
from the complainant to the accused. In other words, if a woman under
custody alleges that she did not consent to intercourse with the person
who has custody of her, the law shall presume that she did not consent.
It is for the accused to prove that he is not guilty. In 2013, this
shift was extended to all cases of rape. While some people think of this
as unfair, the truth is that the powerful manipulate their way around
the law and the vulnerable struggle to even get a complaint registered.
In order to keep the crime rate in their area low, cops would turn away
complainants of sexual abuse, refuse to file a complaint, book under
milder sections or refuse to turn the complaint into an FIR. The Supreme
Court, after the Delhi gangrape, had ruled that the official at a
police station is required to file an FIR- this took away the discretion
of the cop in filing a complaint. However, in gross violation of this
ruling, the police in the Health Department case not only refused to
file a proper FIR but also made the complainant to sit inside the police
station till 8 p.m. The Chief Judicial Magistrate, Srinagar, in a
judgment dated 10-06-2014 notes:
That the complainant after being subjected to persistent sexual
assault and attempt to rape filed a complaint with the Police Station
Shaheed Gunj, Srinagar who at the first place deferred taking cognizance
of the complaint in violation of the latest Apex Court’s Judgment and
also in violation of the relevant provisions of law and secondly the FIR
which was registered lateron at the pursuation of the complainant did
not disclose the Sections warranted from the contents of the complaint.
That the police concerned has been very sluggish in conducting the
investigation of the case of the complainant which fact indicates that
the police concerned is in nexus with the accused 1 to 4 as they are
highly influential and are supported by the bureaucrats at the helm of
affairs.
Following this strongly worded judgment, the Health Department
conducted an “investigation” as a damage control measure. Although the
complainant had been knocking at the doors of ministers to complain
about abuse, it was never deemed necessary to order a departmental
enquiry. In a private conversation with me, the complainant said that
she had been asked to “adjust”, “as this behavior was common on part of
officials”. Whether true or false, these allegations are very serious
and must be investigated with the seriousness they deserve.
Common misconceptions
1.
Rape Laws are misused: Any
law can be potentially misused. Laws are misused, as a matter of fact-
the most misused provisions being defamation, hate speech and sedition.
It is, of course, possible for someone to file a false complaint of
rape. However, the veracity of the case is not for us to discuss. It is
the job of the investigating agencies and the courts,
as with any other case,
to weigh the facts of the case and decide whether there is enough
evidence to prosecute the accused or not. In most cases, it is extremely
difficult for the complainant to prove that she was harassed. It would
be near impossible for a woman to produce evidence proving that someone
in a car signalled her to board his car while she was simply waiting for
a bus; or that he whistled at her or passed a vulgar remark; or that he
pinched her while she was standing in a bus; or that he groped her in
the middle of a crowd. It is near impossible for a woman to produce
evidence of being offered undue benefits in return for sexual favors-
something that happens routinely at workplaces. In fact, MOST
molestation cases go unreported. As mentioned before, the conviction
rate for rape and molestation cases in J&K is 3.26%.
Unless a woman is raped to death, her narratives are treated with
mistrust. Even then, there are people who question her choice of
clothes, make assumptions of promiscuity about her, question the series
of decisions that landed her up in a situation where she was raped and
beaten to death, and so on. While every law can be misused, the issue of
misuse is brought up exclusively in cases of sexual assault. The answer
is not to criminalise men at the slightest allegation, but to ensure
that legal safeguards are adhered to. Unfortunately, the only safeguards
that are followed are those that result in shielding the accused. As
mentioned before, this mistrust of women’s narratives results from the
‘good woman vs. bad woman’ construct, which assumes that “good” women do
not face abuse (and that, even if they do, they ignore it). Those who
complain are treated with suspicion and mistrust. Only a few of them
ever get justice.
2.
Removal from power is too harsh and amounts to bias:
All men are equal before the law, in theory. However, we know it all
too well that social inequality makes legal justice inaccessible to
some, while the legal system is heavily biased in favour of others.
Democracy starts out with the assumption that all people are equal,
without first ensuring actual equality for all people. Although free
legal aid is available to those who cannot afford it, most good lawyers
are hired privately for very high fees by those who can afford to. Apart
from this, biases resulting from societal inequalities are reflected in
the opinion of the judges, as pointed out at the outset in this
write-up. Acknowledging power inequalities and their effect on access to
justice is very important.
The workplace is a site of institutionalised inequality and hierarchy
and it is no secret that women, by virtue of being women and by virtue
of being lower rung employees (mostly), face a lot of harassment of
various kinds from peers and from those who are higher up in the
hierarchy, respectively. The purpose of workplace sexual harassment
committees is to steer clear of the effect of workplace inequalities and
ensure equal access to justice for both accused and complainant.
However, even in one of the most gender-just campuses of the country,
namely the Jawaharlal Nehru University, we have wittnessed that cases
against powerful professors rarely get justice despite the presence of a
vibrant anti sexual harassment committee, GSCASH.
Power lobbies in the administration try their best to shield powerful
professors for various reasons. The social construct of “gentleman”
makes it difficult for anyone to believe that a “respectable” official
would be involved in sexual harassment. This is especially true when the
accused hold positions such as HoD, Minister, Dean, Pincipal, Director,
Vice-Chancellor, Proctor, etc. It is for this reason that the demand
for stripping an accused of their extraordinary powers arises. This is
vital for ensuring that the accused does not use his official position
to influence the enquiry. Such positions entitle one to order transfers,
approve promotions, etc. and such entitlement can be used to influence
various actors such as witnesses and those who have to enforce the
disciplinary action recommended by the anti sexual harassment committee.
It is, therefore, important that these extraordinary powers be taken
away until the investigation is completed.
3.
Removal from the post will encourage false complaints against public figures:
First of all, the removal that is sought is temporary. Second of all,
the kind of character assassination and ostracism that follows a
complaint, on the contrary, discourages women from complaining against
harassment. The law requires the identity of complainant to be
protected, for good reasons. However, in a case against a powerful
person, the invisibility of the complainant also works to the advantage
of the accused. Completely baseless statements are made about the
complainant and she can’t defend herself publicly, questions are raised
about her character whereas the charisma of a public official or a
public figure is taken as guarantee against the possibility of
misconduct on his part! We, as a society, still find it difficult to
imagine that the powerful can be guilty. In the wake of 2006 sex
scandal, Muzaffar Hussain Beigh had said, “how can we trust these girls
who sell themselves for 200 rupees”, to which a common Kashmiri had
replied through a newspaper: “can we only trust those who sell
themselves for lakhs and crores?”.
Even then, those who are really interested in hatching a conspiracy
to defame someone will do that anyway. But this is a very small
percentage, and it cannot be used to discredit the narratives of women,
in general. And, in order to deal with these, we have trials and probes.
4.
“The Director could get any girl he wanted, why would he molest a nurse?”:
Sexual assault has nothing to do with desire, and everything to do with
power. This argument is similar to the one made by the judge in the
aforementioned Bhanwari Devi case. Despite it being an open secret that
Dalit women are raped by upper caste men in order to assert their power,
the judge chose to disbelieve that an upper caste man could rape
someone whom they consider “untouchable”! The more the power gradient,
greater is the vulnerability of abuse- precisely because sexual abuse is
about power, not about attraction or desire.
5. “Most nurses are like that”:
I don’t even know where to start attacking this generalisation.
However, if generalisations were to decide the merits of a case (they
don’t), then I would make a much broader generalisation: “most men are
like that”. If we were to go by this generalisation, then a trial would
not even be needed. Men would be held guilty by default. I might appear
to be attempting a war of generalisations here, but my intention is only
to show that, if generalisations can’t be used against the accused,
they can’t be used against the complainant.
6. “The complainant is of bad character”:
It is not possible to determine the character of a complainant or
accused in each case. Our only concern should be to invest in
establishing a fair process which will independently determine in each
case whether sexual assault happened or not. The character of neither
the complainant nor the accused can be held against them while
determining whether a case of sexual assault is true or not.
7. “What if the Director is proven innocent? Shouldn’t victim be tried for defamation?”:
At a protest in Srinagar on Friday, I was asked by a journalist, “What
if the Director is proven innocent?”. Well, then, he is proven innocent
and we shouldn’t have any issue with that, as long as the probe was free
and fair. However, defamation is not built into any law. If one were
accused of theft, for example, there are three possibilities: a) the
complaint was false; b) the complaint was not proven; or, c) the
complaint was proven. In any case, the court will not reverse-prosecute
the complainant for defamation. Defamation, a much-abused provision, is a
separate law and the accused has a legal right to use it. While in the
US, truth is a valid defence against defamation, in India that is not
the case. Defamation continues to be a contentious law used against
whistleblowers, activists and reporters. Those who express their concern
for abuse of law should focus their energies into a broader demand for
reform of laws- both procedural and substantive.
Please join protest demo for fair
investigation and gender justice at 3 p.m. tomorrow (i.e. 16th of June,
2014 in Pratap Park, Srinagar)
We do not know, and can not know, in
each case whether a complaint was genuine or concocted. The only thing
we need to invest in, is an ethical and fair investigation. If that
requires someone to step down, so be it. In fact, the ethical pressure
should be so great that such individuals should offer to step down on
their own. We need a societal response that will build this kind of
pressure.
