Courtly view : The idea of submission being consent is dangerous

Tarun Tejpal.: File picture

The Editorial Board   |  TT  |  01.06.21 : It is disconcerting when a ruling on alleged sexual assault focuses on the behaviour and habits of the complainant. It is a step backward, as though reforms in the laws against sexual assault never happened. Beginning with the Criminal Law (Second Amendment) Act, 1983, evolved after a prolonged struggle by activists after the judgments on the Mathura rape case of 1972, reforms continue till the Criminal Law (Amendment) Act, 2013. That old problems still bedevil sexual assault cases was made clear in the judgment of the Mapusa district and sessions court in Goa that acquitted the former editor-in-chief of Tehelka of sexual assault alleged by a co-worker in 2013. The acquittal was based partly on the court’s finding that the police had failed to build a convincing case. But the disconcerting part of its reasoning was revealed in the reported statement in the judgment that the complainant did not demonstrate trauma or tearfulness — she did not ‘behave’ like a sexually assaulted woman. A rape survivor has no normative behaviour; it is just a stubborn notion that no law or campaign has been able to remove fully. The argument here is similar to one in the Mathura judgment: the woman did not scream or cry. Besides, her clothes were not torn. Where, then, was proof of resistance?

The idea of submission being consent is dangerous. Yet the Goa sessions court acknowledged that the accused was powerful and could have dominance or control over his accuser. This is fundamental to sexual harassment in the workplace. It has been repeatedly pointed out that the clothes of the complainant — reportedly described in detail in the Goa judgment — or facts such as her relationships with men, or habits such as smoking or drinking or ‘flirting’, are irrelevant to her accusation. The Supreme Court made this clear in a 1996 ruling. A workplace relationship is especially complicated: that the complainant phoned her alleged attacker after the event may not have a simple explanation. The position of social and professional power that an accused occupies cannot be ignored when scrutinizing ‘glaring’ inconsistencies in a complainant’s testimony. Irrespective of the direction the case takes on appeal, it cannot be denied that making the habits, appearance and behaviour of the survivor central to the case sets an unfortunate precedent.