Tarika Jain

Shreya Tripathy

Sexual violence against women continues to be a global concern with about 35% of women worldwide having experienced sexual harassment in their lifetime. According to NCRB’s Crime in India Report, 2020, on an average 77 rape cases per day were reported across India in 2020, that is, 28,046 cases during the year. However, as is well known, NCRB figures are generally underreported, as they do not account for instances where an official complaint was not registered with the police. Further, the conviction rate for the offence remains at about 39.3% nationally. These figures merit scientific investigations into the procedural peculiarities and the social realities revolving around rape adjudication in India. This blog introduces some of the contemporary academic literature which has empirically examined rape trials in India while forwarding fresh evidence to support the prior findings.

We gathered our evidence from subjecting Delhi trial court judgements in rape cases from the years of 2018 and 2019 to content analysis (hereinafter referred to as ‘dataset’). These judgments were extracted from indiankanoon.org as the district court websites do not provide an easily searchable database for judgements. The keywords used for the search were “376” AND “rape”. The search yielded 279 results and on taking a sample size of 95% confidence level, 162 judgements were studied at random which included 107 cases for 2018 and 55 for 2019. Arguably, this may not be an exhaustive dataset as per official records. However, the sample size is large enough to draw at least some generalizable observations. The study is currently unpublished.

Abysmally low conviction rates

One of the preliminary, and perhaps one of the most intriguing, observations from the dataset was the extremely low number of convictions. Of the 162 cases studied, only 9, that is only 5.6% cases resulted in the conviction of the accused, clearly falling far below that national average. Similar findings have been reported by Dash (2020), who found that in only 5.7% of the rape trials in Delhi between the years 2013 and 2018 was the accused found to be guilty. In her paper examining 1635 rape decisions from Delhi, Dash reveals the sombre repercussions of ill-conceived and reactionary amendments to the law. She argues that the Criminal Law Amendment Act, 2013, wherein a minimum punishment of 7 years was prescribed for the offence of rape under Section 376 of the Indian Penal Code, is correlated with a reduced conviction rate. Prior to the amendment, the conviction rate stood at 16.11%, indicating that the introduction of the minimum sentence, and in turn limiting the judicial discretion in sentencing, may have deterred judges from convicting an accused for the fear of awarding an unduly harsh sentence.

Prevalence of rape myths

Further, scholars have repeatedly commented on the prevalence of rape myths, that is, ‘prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists’ (Burt, 1980:217) within the trial. While the specifics may vary, rape myths have been known to be present in the judicial trials of several countries (Barn & Powers, 2018). Consequently, the judicial expectation appears to be built up around a ‘rape script’ wherein the victim behaves in a particular manner during and after the incident, and the incident itself involves certain characteristics for it to be considered a ‘real rape’ case (Deming et al). This may include presumptions around the background of the victim, or their relationship with the perpetrator (Satish, 2016). In as many as 18% of the cases in our dataset, where the accused was acquitted, the judge subscribed to some of these myths.

Some of the rape myths that have been identified in the Indian context include:

• A rape victim is generally a pure Hindu who is a virgin, honourable and weak woman (Kapur, 2005).
• The rapist is generally strong and ‘bad’ (Christie, 1986).
• A rape victim will have had no previous interaction with the accused and they both are strangers to each other. (Barn & Kumari, 2015; Christie, 1986).
• A real rape victim will not only shout and scream during the incident, she will also sustain visible injuries from resisting the rape (Barn & Kumari, 2015).
• A real rape victim will share details of the rape with her family and also report to the police immediately after the incident (Dash, 2020).
• A real rape victim will not appear to be calm after the incident or during the trial (Barn & Kumari, 2015).

Our dataset also reflected some of these myths with judges taking into account the ‘normal’ behaviour of the prosecutrix after the incident, absence of physical injury and delay in filing FIR as grounds for acquittal. Notably, according to data published by the NCRB, an overwhelming 95.6% (25542 cases) of accused are persons who are known to the victim. Of these, 8.9% (2364 cases) involve family members of the victim, 38% (10189 cases) involve friends/online friends, partners on the pretext of marriage or separated husbands, and 48.6% (12989 cases) are family friends, neighbours, employers or other known persons. Our dataset also confirms this, with only 6.8% of the cases involving a rape by a stranger while the majority remained to be acquaintances (50%) such as family members and friends, or romantic partners (35.8%). This is one example where despite evidence to the contrary, a rape myth continues to prevail. The criminal system appears to be inclined in favour of convicting the accused in cases that subscribe to the script (Satish, 2016).

Burden on the prosecutrix

Further dissecting the cases which ended in acquittals also reveals an unfortunate picture. The reason for the majority of the acquittals lies in the testimony of the prosecutrix herself. In the study, our dataset shows that in 47.7% of  all the cases which ended in an acquittal, the judge had noted that the prosecutrix had turned hostile, or there were significant lacunae in her testimony, rendering them unreliable for proving guilt beyond doubt. Garg (2019) in her work has forwarded two primary explanations for the hostility of the prosecutrix. First, the case may be resolved out of court, perhaps by the parties arriving at an understanding or the prosecutrix feeling intimidated by the accused. Second, the trial process may prove to be so stressful for the prosecutrix, that it amounts to secondary victimisation, and compels her to terminate the proceedings.

The prosecutrix is left to battle the gendered perception that the judge brings to the courtroom rather than completely rely on the evidence and testimony regarding the incident (Rayburn, 2006). Even though the Supreme Court has pronounced that in rape cases, the testimony of the victim can be the standalone evidence and delay in reporting the case does not throw suspicion on the intent of the victim (Barn & Kumari, 2015), the same is rarely followed during rape trials. For instance, our dataset included a case wherein the judge deemed that the testimony of the prosecutrix was unreliable as it is unlikely that she would leave the house at 10:30 pm to see a property for renting without taking her husband along with her. In another case, a delay of 20 hours in filing the FIR was deemed unreasonable.   

A gender-balanced bench

It may be assumed that justice may be better served if the bench is more representative. The judiciary in India, however, has a skewed gender composition across its three levels. According to a study conducted in 2018, 28% of the district judiciary comprises women judges. Within Delhi, 39.6% of the district judiciary is composed of women (calculated from the list of judges provided on the National Judicial Data Grid, 2021). In our dataset, 31% of the rape cases were decided by women.         

However, research shows that the judiciary has been traditionally seen as a masculine institution and the recruitment of women has been considered to compromise its sanctity (Schultz & Shaw, 2013). Women are also seen as the more sensitive of the two sexes and incapable of judging objectively (Moran, 2013). Ironically, this often motivates women  judges to be more masculine in their stance so as to not appear weak and feminine (Schultz & Shaw, 2013). Therefore, women who manage to make it into the judicial system, have to break stereotypes and prove their skills above and beyond their male counterparts.

Furthermore, as our data shows, prejudices may be indicative of individual beliefs rather than a group trait. For example, even though the number of women judges subscribing to a rape myth seems to be low, the offensive remarks are generally delivered by the same few judges and are generally harsher in comparison to their male counterparts. For example, in our dataset, there are multiple instances where the same few women judges call the prosecutrix a “blatant liar” when the prosecutrix may give contradictory testimony, or label the pre-existing relations between the victim and the accused as ‘promiscuous’. In contradiction, a male judge has delivered multiple judgements where a positive assertion has been made about the prosecutrix, for example, where he recognised that even reliable witnesses may provide contradictory testimony especially in rape cases. Therefore, multiple decisions by one judge who has strong biases may skew the data and render any generalised conclusions about gender and judging to be misleading.

Conclusion

It is evident that the rape adjudication system in India needs to be subjected to a deeper examination in order to ensure that justice is delivered to the victims. While the 2013 amendment was well intended, it has failed to translate into a positive change in reality. The letter and the spirit of the law need to be sensitive to the experiences of the victims and break the scaffolding of the regressive rape myths which continue to dictate the direction of rape trials and judgements.  

References

• Barn, R., & Kumari, V. (2015). Understanding Complainant Credibility in Rape Appeals: A Case Study of High Court Judgments and Judges’ Perspectives in India. British Journal of, 55, 435-453.

• Barn, R., & Powers, R. A. (2018). Rape Myth Acceptance in Contemporary Times: A Comparative Study of University Students in India and the United Kingdom. Journal of Interpersonal Violence, 1-22. doi:https://doi.org/10.1177/0886260518775750

• Burt, M. R. (1980). Cultural Myths and Supports for Rape. Journal of Personality and Social Psychology, 38(2), 217-230.

• Christie, N. (1986). The Ideal Victim. In E. A. Fattah (Ed.), From Crime Policy to Victim Policy: Reorienting the Justice System. Macmillan

• Dash, P. P. (2020). Rape Adjudication in India in the Aftermath of Criminal Law Amendment Act, 2013: Findings from Trial Courts of Delhi. Indian Law Review, 4(2), 244-266.

• Deming, M. E., Covan, E. K., Swan, S. C., & Billings, D. L. (2013). Exploring Rape Myths, Gendered Norms, Group Processing, and the Social Context of Rape Among College Women: A Qualitative Analysis. Violence Against Women, 19(4), 465-485.

• Garg, A. (2019). Understanding Rape Adjudication in Delhi Trial Courts. Oxford: Unpublished: D.Phil at University of Oxford .

• Kapur, R. (2005). Erotic Justice: Law and the New Politics of Postcolonialism.

• Moran, L. (2013). Sexual Diversity in the Judiciary: Research on Barriers to Judicial Careers. Laws, 2(4), 512-538.

• Rayburn, C. (2006). To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials. Columbia Journal of Gender and Law, 15(2), 436.

• Satish, M. (2016). Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India. Cambridge: Cambridge University Press. doi: 10.1017/CBO9781316471784

• Schultz, U., & Shaw, G. (2013). Introduction: Gender and Judging: Overview and Synthesis. In U. S. Shaw (Ed.), Gender and Judging. Oxford: Hart Publishing.

Tarika Jain is recent MSc Public Policy graduate from University College London. Shreya Tripathy is a Research Fellow with the JALDI (Justice, Access and Lowering Delays in India) Initiative at the Vidhi Centre for Legal Policy.