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print versionBlog: Does a sexually abused woman have no voice?
by Noopur Tiwari
Sexual assault is not just about the criminal, it’s also about the abused.
But this is often forgotten and the abused ends up being "silenced for her own good". This holds true not just for the Khap variety of justice but also in the response of the criminal justice system to rape where the choice of the abused becomes somewhat irrelevant.
In the Tehelka case, Shoma Chaudhury’s claim that she was respecting the journalist’s choice to file the FIR or not, was seen as a move that shielded her alleged rapist. If the journalist didn’t report the crime, those who were in the know were expected to, in order to let law take its own course.
On the other hand, some ignored the need to take the journalist’s consent before putting out explicit details of the crime from her mail into the public domain. A petition was soon doing the rounds to prevent any further breach of privacy. Soon these details were splashed on the front page of a leading newspaper.
The Goa police filed a suo moto FIR against Tarun Tejpal and the criminal investigation began. In all these cases, someone else was claiming they were acting or not, in what they thought was "good for the abused".
But how much control was the person herself allowed over her own story? Did she have adequate support, time or the option to decide how she wanted to pursue the case? Measured public outrage is a strong force, it can cushion the abused and help them get justice, but it becomes dangerous when it focuses so much on the criminal that it forgets the abused. Those speaking on behalf of the Tehelka journalist must not forget that the assaulted person this time is an empowered woman, not voiceless and not entirely helpless (unlike in December 2012 when the assaulted woman was dying in hospital).
Rape is a cognizable offence in India, which means the person abused is not required to lodge an FIR.
This takes away the onus of filing a report from the person who was sexually assaulted and therefore protects her.
The criminal prosecution does not really "need" her. If the abused is a minor, in a vulnerable situation or deeply traumatised, this is of tremendous help. It also saves the abused from being exposed to coercion or any kind of pressure from either the offenders or being influenced by anyone to not speak out and ask for justice. But is it always fine to not take the abused person’s own position into consideration?
In the Tehelka case, it’s not clear whether or not the journalist felt at first that civil action was a better choice for her. Activists who claim they are aware of what she wants say she had opted for civil action. Once the FIR was filed, she said she would co-operate with the police. The question of her "choice" was brushed aside hastily and many of her defenders were no longer interested in what the abused thought would be best for her to be able to "move on". It’s probably too late now. Anyone, including the abused, questioning criminal action are likely to be lynched in the public discourse now.
Tarun Tejpal has already confessed his guilt in the letters that were made public. He admits to an attempt at ’sexual liaison’ despite the journalist’s ’clear reluctance’.
Perhaps without the suo-moto action, the abused would indeed have been pressured to give up entirely. So is this silencing in fact giving her a voice?
Criminal action is designed to punish criminals, but is that the same thing as bringing justice to the abused? If it’s "good for society", is it necessarily "good for the abused"? What happens when the abused does ’not’ want to take the route that seems better for society? The suo-motu option saves the abused from the burden of filing an FIR, which is great, but if she has to give her testimony and then bear the consequences of court proceedings that don’t go in her favour, what then?
There are some who don’t want to send their aggressors to jail because they are close or related to them. There seems to be little empathy for this choice. Civil action can be expensive or not get the abused the desired result but the abused should at least get to choose. Is the abused expected to sacrifice her own good for the greater good? If she thinks an apology and financial compensation can bring her more relief , she is highly likely to be seen as dishonest and her position will be judged as immoral. So in the end the onus comes back squarely on the abused.
Raising questions about the response of the criminal justice system to the needs of the person abused should not be equated to attempts at shielding rapists. That would stifle an important debate. That there should be zero tolerance for sexual harassment at the workplace is unquestionable. Too much is at stake in the Tehelka case. It will set a strong precedence.
But a sexual assault is devastating for an individual and shatters their peace. A solution that provides protection to society by punishing criminals doesn’t automatically protect the abused person’s individual rights. We need to solve this dilemma.
o o o
Indian Express, 25 November 2013
Apologies aside
by Pratiksha Baxi
Disciplinary action cannot replace legal proceedings against sexual violence.
In the aftermath of the Delhi protests, numerous women spoke out. Many read this to mean that the culture of silence is finally breaking down. Yet, what is really dismaying is how easily our institutions script impunity as a response. The response to the complaint against Tarun Tejpal illustrates the politics of impunity in the media.
Everyone knows that women journalists face routine forms of sexual violence at the workplace, yet few talk about it. When women challenge the public secrecy of rape by speaking out, publicity does not do justice to them. Historically speaking, we must remember that law reform emerges from experiences of unspeakable sexual violence. Rao Harnarain Singh Sheoji vs State of Punjab (1958) distinguished between passive submission and consent, after a young working class woman was gangraped to death by a public prosecutor and two colleagues in his home. Yet this precedent was set aside when the Supreme Court acquitted the policemen who raped Mathura in 1979.
The open letter on Mathura’s case, authored by four law professors, challenged the Supreme Court’s decision and thereafter, the first national anti-rape campaign resulted in amendments to the law in 1983. Although Mathura’s biography changed more than 100 years of legal history, the law denied justice to her.
Similarly, the Vishakha guidelines on sexual harassment at the workplace emerged from Bhanwari Devi’s protest against the acquittal of the men who gangraped her. No proceedings were initiated enquiring why her appeal against the acquittal languishes in the Rajasthan high court. Neither were tort proceedings instituted for employer liability. We got the Vishaka guidelines, while Bhanwari Devi learnt that caste offers impunity to rapists. This abject disconnect between a survivor’s life and legal history has everything to do with the vexed question of how public discourse engages with a survivor’s testimony.
Yet again, it is a young woman journalist’s experience of sexual violence which signals Vishakha-type reform in media organisations. Shockingly, her complaint of rape was at first misrepresented as sexual harassment at the workplace. Television anchors remained unfazed by their own confusion about the distinctions between sexual harassment, sexual assault and rape in law and life. And like zombies, we watched outraged anchors packaging legal literacy bytes.
Calls to activate Vishakha resounded. But Vishakha debates neglected to note that a nominated inquiry committee does not ensure accountability and autonomy when the complaint is against the boss. Further, if an employer makes rape the condition for employment, placing this at par with other forms of sexual harassment does not challenge sexual impunity. Disciplinary action must be commensurate with the violence.
Typically, any organisation must first ensure the complainant’s safety. Pending inquiry, the accused person must be divested of all positions of power and declared out of bounds, so that the complainant can resume work if she wishes to. Further, a restraint order must be issued against the accused (or those acting on his behalf) to prevent intimidation or pressure to settle.
Besides, a survivor has the right to file a tort case against the employer, since the employer is liable for inability to create safe conditions of work. Surely, this creates a conflict of interest, wherein the management would be interested in the apology and pardon route, without costs.
Confessions, apologies and pardons operate within an economy of power that reduces a crime to a transgression. Often, the contents of a confession or apology produce further trauma. Moreover, a pardon, following an apology, can be seen as an implicit admission of consent in a potential civil (or criminal) case, limiting liability. Hence, an apology may not actually amount to punishment, especially where liability is an issue.
While a crime warrants disciplinary action, that does not substitute legal action. The first instinct is to ensure that the violence stops, hence, often the first complaint is to the workplace. The agency of the survivor to file a criminal complaint, a choice the law denies in those forms of violence named as crimes against society, must find institutional support. In rape cases, the organisation must hire a lawyer for the survivor so that she feels empowered to participate in the legal process. If legal support had ensured confidentiality and privacy, even as the case found tweeting publicity, the material conditions of testimony could have changed, empowering her further.
The trauma is aggravated by publicity, peer pressure and the fear of loss of employment. Hence, counselling must accompany legal assistance. Publicity often produces stigma and the loss of narrative control. Publicity and its pornography, far from doing justice to survivors, re-enacts the trauma literally by reproducing the contents of the complaint or visualising the crime. The logic of publicity is to convert testimony into spectacle, where the ways of looking itself produce pleasure, excitement or entertainment.
Media representations of sexual violence make sexual violence sexy. Alternatively, tabloid shock and horror fills print and visual columns. Voyeuristic representations of violence act as the pedagogy of rape. Gender, ironically, becomes an instrument for the politics of patriarchy.
In the aftermath of the Delhi protests, the nature of journalistic practices in relation to representing sexual violence did not really find serious discussion or action (other than the need to blank out the name of the survivor). Nor did the discursive shift in the streets, which resounded with the slogan of "azadi", mean greater dignity for women journalists in their workplaces. Many women journalists who covered the Delhi protests experienced sexism in their workplaces — male dominated studios or offices — as rape stories went to press. Women journalists spoke of sexualised banter about rape in their workplaces as they worked on their stories about resisting sexual violence. It is lacerating that the debates on rape law reform did not infuse new life into the ethics of the profession, its code of conduct or its policies.
For those of us who have campaigned against sexual violence at the workplace over the last two decades, change, far from being incremental, appears to be contingent. It is contingent since we forget that those survivors to whom we owe the debt of legal innovation do not always get justice. It is time to change this inheritance of grief.
The writer is associate professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi
