Survivor Friendly Court Rooms, Chapter 2: Didn’t you cry aloud?

Remya Harikumar

Series 2

Representational Image | Mathrubhumi

Didn’t you cry aloud? One of the routine questions that a survivor faces in the court. Its underlying accusation is clear; why didn’t you scream to get people to help you? So, while being raped, a woman is expected to do all this- cry aloud, scream, make a scene, defend the attack, get injured and try as hard as possible to escape too. Patriarchy is so deeply rooted even in judiciary.

Can we ever forget the Suryanelli girl?

The one who publicly fought against those who had ravaged her body. Her life story has become the first textbook for anyone researching on the subject of rape and sexual assault. Shall we go through that infamous verdict delivered by the High Court of Kerala in 2005 once again? A verdict that gave weird interpretations for ‘consent’, a judgment that minutely dissected the integrity of that girl. Remember the remark that the survivor did not cry aloud even when her genitals were deeply wounded and infected? No signs of defending the attack, no attempts made to escape…so went the verdict. Later, the Supreme Court set aside this verdict and ordered a re-hearing. In 2014, the Kerala High Court reversed the 2005 verdict, and rejected the ‘child prostitute’ remark made by the judges.
Yet, that question, “Didn’t you cry aloud?” is still reverberating in our courtrooms.

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What Thrissur-native Shahina (name and place changed) faced in court was yet another question. Were you not carrying a mobile phone at that time? Shahina belongs to a financially-backward family. After marriage, she came to know that her husband was mentally challenged. She became a mother, and the child was diagnosed to be autistic. Amidst all these problems, a neighbour struck a friendship with her. On a festival day, he promised her a ride to her own home, but she was taken to another place where he raped her.

Though she was travelling with her child, the defending lawyers wanted to know why she didn’t jump out of the vehicle, or why she didn’t use her phone! Their objective was only this - to prove that she went with him willingly.

Here’s yet another example

A woman from Chavakkad (place changed) was sexually assaulted by a neighbour having a criminal background. Her husband is employed abroad, and when the incident happened her children were in school. The neighbour attacked her while she was washing clothes. In the scuffle that followed, he sustained injuries.

When the case reached court, the woman received absolute support from everyone. She defended herself, the accused was injured, the incident must have frightened the life out of the survivor because of the man’s criminal history! In short, this case had all the ingredients that satisfied the society’s patriarchal attitude.

Which century are we living in?

“The complainant’s explanation that she was tired after the rape and fell asleep is unbecoming of an Indian woman. This is not the way our women react when they are ravished.” – Justice Krishna S. Dixit of Karnataka High Court made this observation while granting bail to the accused in Rakesh B vs State of Karnataka case in June, 2020.

Many organisations and individuals including People’s Union for Civil Liberties, Karnataka, historian Ramachandra Guha and journalist Sharda Ugra wrote open letters to Justice Dixit, saying that these remarks disappointed them. Aparna Bhat, a lawyer from New Delhi, also wrote an open letter addressing the Chief Justice and senior women advocates of the Supreme Court. “What is not acceptable is not acceptable even from a judge,” Bhat said. “We need to call out this misogyny.” “Discretion, Discrimination and the Rule of Law,” the book authored by Prof Mrinal Satish of National Law School of India University, gives a detailed analysis of verdicts on rape cases covering 25 years (1984-2009). It shows how myths about sexual assault and conservative thinking influence judgments of courts in such cases.

The attitude that never changes

Survivors are not given the sympathy and support they deserve. Instead, the court focuses only on legalities and takes a “gender-stereotyped” attitude towards them. Can we really expect anything positive from people who think that no one can attack a woman if she defends herself strongly? Really? For how long could a woman keep on defending? The response from women varies depending on their circumstances. Could all these be generalised? Some women would be fierce enough to kick the genitals of the man while even a small touch would feel like life-threatening for some. That is why each case becomes unique; each survivor different.

“The survivor goes through her life’s most crucial and harrowing moments in the court trying to prove there was no consent from her part. She has to carry the weight of proof on her shoulders. There should be a concrete criterion to establish consent. The survivor should be relieved of the weight of proof, and it should be handed over to the accused to carry. And he should be made liable to prove there was ‘consent’. That is the solution. A man and woman would have had sex ten times; but if she says no on the eleventh time and he forcibly commit sexual intercourse without her consent, it is nothing but rape. But in a court, it is not defined as rape because they had done sex ten times before this incident. It is high time we defined what ‘consent’ is,” says Sapna Parameswarath, Public Prosecutor and founder member of Punarjani Lady Lawyers Initiative.

That chair is not for the prejudiced (Box)
Deepika Singh Rajawat
(Counsel for the family of the eight-year-old victim of Kathua gangrape,)

The defending lawyers can ask the survivor as many questions as they want. Their objective is to destroy her psychologically through cross-examination. I have heard the accused’s lawyers asking questions like, who undressed you, did he remove your inner wear, where did he touch first…The defence counsel might even be finding some pleasure in such grilling. Law stipulates that cross-examination should not defame the survivor. A defending lawyer’s cordial behaviour alone won’t be enough. Judges and judicial officers should also be open-minded. We need judicial officers who are well-versed in the subject, who have practiced law impressively for long, and who are trained well. And we don’t need people who are prejudiced against women to sit in that chair.

Don’t let them loose in court (Box)
V. Shircy (Retired Judge, High Court of Kerala)

Cross-examination of the witness/survivor is the right of the accused person to find truth. The court often interferes when the defending team ask questions that defame survivors. A judge is neither a silent spectator nor a recording machine. He or she has to be actively involved in the hearing, and stay alert and cautious throughout. They should interfere when needed and control the questioning. Public prosecutors should also be alert, and the defence lawyers should not be let loose in the courtroom. Section 151 and 152 of the Evidence Act gives the judge the authority to stop the defending team when their questions to the survivor become indecent and provocative.

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