On sexual assault cases: The victim's right to choose

Nowadays whenever we hear of a case of sexual assault – which may or may not include rape – we mould into a ball of outrage. Which is a good thing, no doubt, compared to the earlier stance of victim blaming. Two recent cases – that of the alleged sexual assault committed by a former Justice of the Supreme Court upon an intern, and that of the alleged sexual assault committed by an editor of a magazine upon his employee – are throwing up another, more disturbing clamor in public: to get the Police involved, to take action, to bring the aggressor “to justice”.

There are some conflicts of law here. Though commonly perceived (on account of everyone learning law from US TV Shows) that a victim requires to “press charges” for a criminal case to come to trial, in reality, anyone can set the criminal law in motion. If you see or have information of an offence taking place, you can go make a complaint at the local police station, and according to the Supreme Court, the Police will have to lodge an FIR, or at least make a preliminary inquiry. Why does this provision exist? In law, crimes are committed against the State, and not just against one person – which also explains why cases are titled “State of Tamil Nadu vs. xyz”. As a matter of fact, a Police Officer can make a Complaint him/herself, and as long as the same Officer does not investigate the case, there is no apparent illegality. And the remedy under criminal law exists even if there are alternate methods of resolution – like internal sexual harassment committees.

So, screams the internet – there are emails and blogposts around with details of the offence and the offender – so why not take this to the authorities? The Supreme Court hastily sets up a Committee for the purpose of inquiring into allegations. The Goa Government vows to take the matter up since it occurred within its jurisdiction.

Does anyone particularly care about what the victim wants?

So a “good Samaritan” or police officer decides to make the complaint and an FIR is lodged. What then happens is that the victim will be called upon to make her statement? She may come out and support the allegations. She may deny the allegations – and this may not be on account of them being untrue. Even so – a Police Station can close an investigation only under three counts: one, that it is a civil matter; two, that the case is false; or three, that the case is true, but undetected i.e. the accused cannot be traced, for example – commonly used to close cases of mobile theft and pick pocketing. 

Since the accounts of all cases of sexual assault now fall within the definition of some provision of the Indian Penal Code or the other, if a victim does not wish to support her account before the Police, the only option is to declare that the case is a “false case”. And this determination of a “false case”, which is to be certified by a Magistrate, mind you – will haunt a victim forever. After all, what’s worse – to say that a sexual assault never happened, or to say that you lied about it?
Amendments have been carried out in the Criminal Procedure Code as recently as 2010 supposedly upholding the rights of the victim – maybe to representation, but not “to choose”. I’ve never been comfortable about the ‘one size fits all’ approach to criminal procedure for various offences, and that hasn’t changed even post Justice Varma and his recommendations.

Two arguments arise here: one is that you need an investigative authority to look into these cases to “arrive at the truth”. What if the accuser is lying? How can we salvage that man’s reputation? Obviously, if one wishes to make a statement which reflects on someone’s reputation in public, there is always accountability. In law, the remedy of defamation exists – if the Accused wishes to pursue the option, nothing really stops him from doing so. If the argument against that is “it takes so long for these cases to be resolved, the legal system is in such a mess” – I’m glad you’re starting to see where I’m coming from.

The second is that the law needs to protect the voiceless: what if the victim is not filing a complaint because she fears the procedure and the system? I can’t see why checks and balances cannot be in place to make sure this is not her concern: as long as a Magistrate can certify that she was given the option of pursuing this case and that she exercised her free will and informed consent in refusing the option.

There’s no course in Law School which teaches Justice – nor should they be. Justice is a personal perception, and is unique to every person. It is up to the State to decide which forms of justice are permissible, of course, but denying a Victim the personal space to decide for herself, her mode of justice from within the possible options, is not helping any ones cause. We all agree that it’s not her fault that she was assaulted, so let’s also consider that it’s not her responsibility to “set an example” by taking on her aggressor in a system set up by Colonialists more than 150 years ago.

And because it is the season of personal examples, allow me to share this: when I was in the National Law School of India University, about 10 years ago, I was sexually assaulted by a senior on campus. I was the first student to use the Sexual Harassment Code to seek redressal. The Accused was subject to disciplinary action.

A few months later, I was sexually assaulted by a close friend, and ironically a trained student facilitator under the Code. The one other female friend present with us didn’t see my side of the story. This assault was more brutal than the first, and I cannot forget it to this day. Even so, I did not complain, and I had my reasons for not doing so – partially because I couldn’t believe in a system that trained someone who actually went ahead and did exactly the thing he was trained to redress. I did confront him, to be told that I misunderstood the whole thing. My friends knew about the incident, because I confided in them. That was my sense of closure, to be amongst people who believed in me. Had I known that my disclosure might snowball into being forced into subjecting myself to proceedings, where I knew 2/3 people present at the time were not going to support my account, I might have never even vented my anger to my friends. How many women are going to write blogposts about terrible experiences that have happened to them at the hands of the Judiciary if they are subject to committee hearings despite clearly stating that they did not want to pursue the matter? Would you email close confidents about an incident of sexual harassment if you knew they might be leaked and lead to Chief Ministers declaring suo motu action?

Respect victims by giving them agency. By forcing a victim to subject her experience to a system or redressal mechanism she is not comfortable in, and then labeling her for not cooperating, we aren’t being much better than what got her here in the first place.