An Indian court’s judgment in a high-profile rape case is a giant leap backward for women

Naming and shaming…the survivor.
Naming and shaming…the survivor.
Image: REUTERS/Anindito Mukherjee
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Warning: Contains details of sexual assault and rape.

A recent judgment in a seven-year-old rape case is a triggering reminder to Indian women about the way the country sees rape.

In November 2013, a female journalist had accused Tarun Tejpal, then editor-in-chief of Tehelka magazine and her boss, of sexually assaulting her on two occasions on the sidelines of a public event in Goa. Tejpal was arrested a few days later and spent several months in jail before being granted bail.

Seven-and-a-half years later, on May 21, a district court in the state of Goa acquitted Tejpal. But it went far beyond a mere acquittal in its portrayal of the case—and the survivor.

“There was only one question that needed to be answered—whether the incident that happened inside the lift, presumably of a sexual nature, was consensual or not, and whether it was assault or not. The judge could’ve acquitted or convicted Tejpal based on those facts,” Kavita Krishnan, secretary of the All India Progressive Women’s Association, told Quartz. “This judgment goes way beyond what one could call a judicial line. It is written not in keeping with even basic judicial propriety.”

The 527-page long judgment by justice Kshama Joshi lays bare intimate details of the survivor’s private life, her past and present relationships, her conversations with friends, and her own views as a journalist on sexual consent and rape.

Justice Joshi referred to the survivor’s past sexual history as if it spoke to her character and it mattered to the alleged sexual assault that happened in the elevator.

“There are many misogynistic judgments, but none that tears into the complainant in this manner,” Krishnan said.

The revulsion in the judicial gaze against the complainant also plays out in the fact that the judgment names the survivor and even lists her email address, a clear departure from the guidelines for sexual assault cases. The Bombay high court has now directed the district court to remove these personal details from the document.

A traumatic reliving of the sexual assault

The long judgment also lays out in visual detail the events of the nights of Nov. 7 and 8, 2013, when the alleged assaults took place in the elevator at a five-star hotel in Goa.

It then, detail-by-detail breaks down minor inconsistencies in the survivor’s retelling of the alleged events. For instance, did Tejpal allegedly pull up her dress before he knelt in front of her or after?

In her said email attachment titled “Testimony”…[the complainant] had stated that as soon as the doors were opened, she picked up her underwear and began walking out of the elevator rapidly and the accused was still following her. Saying that she picked up her underwear means that the underwear was taken out of the body and not just pulled down. Taking off the underwear was not possible since that would require lifting up of the legs…Such glaring contradictions cannot be expected from educated journalist like…[the complainant] and forces the court not to believe the incident of rape.

She said she was panicking, but why was she smiling after the assault? Why was the pace of her walk, captured via CCTV footage, not frenzied enough?

[The complainant] states that she and the accused were in the lift approximately for two minutes and that when she came out of the lift she was in the state of shock and trauma and blinking back her tears. The CCTV footage does not support the statement that she was in shock or trauma or blinking in tears.

All of this the survivor has repeatedly explained as a function of her professionalism—an explanation that should not have been needed in a rape case. She was a young reporter entrusted with the responsibility of chaperoning actor Robert De Niro at the event, and she felt her job was on the line if she raised an alarm and quit her duties then.

Even if she hadn’t chalked it up to her upright professionalism, castigating a rape survivor based on her reaction to the alleged rape is simply shocking. The judgment also doesn’t take into account the effects of trauma on rape survivors and how they often remember small details differently once the trauma settles.

Instead, the judge chooses to suggest the survivor’s account, and those of 70 witnesses, to be false.

The revulsion spills over to feminists, activists, and feminist lawyers who the woman journalist consulted while seeking advice. “It is almost as if the judgment says if you are a feminist lawyer, you would be cooking up stories,” Krishnan added.

For instance, the judgment summarises the complainant’s “connections” with leading lawyers, feminists, activists, and journalists, after rummaging through her text messages, call records, and contact list. The fact that she lists a famous supreme court lawyer—and family friend—as “brahmastra” (Hindu god Brahma’s weapon, often seen as the ultimate weapon) in her contact list is mentioned several times in the judgment as a testament to her powerful network. It also talks about the fact that she received a book grant to write about sexual assault survivors in India as though it is entirely impossible for an author to write about this topic out of journalistic inquiry and not a personal vendetta.

Ignoring Tejpal’s emails

The cross-examination during the course of the seven-and-a-half years notwithstanding, the entire acquittal is based on the judge’s interpretations of the survivor’s actions. But she raises no questions over why Tejpal wrote two apology emails to the survivor, admitting to an unwanted encounter.

“Instead of questioning those letters and saying they at least prove there was a sexual encounter, the judge breezily dismisses these as being written without his consent,” Krishnan said. “She should’ve asked the question that if one was to reasonably assume there was no sexual encounter, why did Tejpal write those letters more than once?”

Will India’s rape survivors step forward now?

Just in the manner the document is written, keeping aside the acquittal, is reason enough for women to consider not filing complaints, experts said.

By painting a picture about the complainant—a young woman who chooses her own sexual partners, drinks on occasion, is a yoga teacher, and has male friends—the judgment not only assassinates her character, it also seems to imply that women with certain personality types cannot possibly be rape survivors.

…It is pertinent to note that, to the question whether the accused was usually choosing to speak to her about sex or desire prior to Think 2013 [the event], she answered in the affirmative, though she claimed that the accused also passed sexual remarks…To the question whether it is immoral to have consensual sex with different persons, the prosecutrix answered that she does not believe anything immoral about consensual sex…and to the question whether she thinks it is immoral to consume alcohol voluntarily or smoke cigarette voluntarily, she answered that she considers if someone is an adult and it does not violate their religion, there is nothing immoral about that. Further, when the prosecutrix was asked whether she indulges in conversation containing sexual overtones with friends, she claimed she does not know how to answer this question…Therefore the WhatsApp chats of the prosecutrix, and her propensity to indulge in sexual conversations with friends and acquaintances, as well as her admission that the accused was talking about sex or desire because that is what the accused usually chose to speak about, unfortunately never her work, proves that the accused and the prosecutrix had a flirtatious conversation on the night of Nov. 7, 2013.

“It seems to say that if you talk about sex openly, why would you object to your boss talking to you about sex. So consent becomes irrelevant here,” Krishnan explained.

Scrutinising personal text messages, analysing why one text message ended with a smiley face and another didn’t, how a woman talks to her male friends and her ex-boyfriend, and what her relationship with her partner is like—this is more than daunting for most women to subject themselves to after a traumatic sexual encounter, especially when the judge puts it under the microscope of a horrified moral gaze, Krishnan said.

“This judgment is the exact opposite of the #MeToo movement. If this judgment stands and there are no sanctions passed against the judge by a higher court, this is the worst setback to the women’s movement in decades,” she said.