A Patriarchal Protocol: Judicial Stereotyping of Survivors of Gender-Based Violence in India

By Avanti Deshpande

“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”

- Justice Ravindra Bhat quoting Henrik Ibsen in Aparna Bhat v. The State of Madhya Pradesh

Introduction

In the latest demonstration of the misogyny that permeates the Indian judiciary, a Sessions Court in Kozhikode, Kerala granted anticipatory bail to the accused, observing that no prima facie case of sexual harassment could be made out under section 354A of the Indian Penal Code, 1860 as the victim was wearing a “sexually provocative dress.” Another incident in recent memory that sparked a similar outcry was when a sitting judge of the Karnataka High Court, while granting anticipatory bail to the accused in a rape case, remarked that it was unbecoming of Indian women to sleep after experiencing rape. This is yet another incident wherein a harmful and gendered stereotype was used to identify how a victim must ‘ideally’ react after having experienced sexual assault. While the comments drew heavy criticism and were eventually expunged from the order, the systemic misogyny persists.

Judicial stereotyping is a frequent and inimical hurdle to justice, specifically for victims and survivors of violence. Judicial stereotyping is used to describe the practice of judges ascribing to an individual, specific attributes, characteristics, or roles by reason only of their membership to a particular social group (e.g. women, religious or ethnic minorities, etc.). It is also used to refer to the practice of judges perpetuating harmful stereotypes through their failure to challenge them, for example by lower courts or parties to legal proceedings. This can be seen through courts holding victims against the ideal victim archetype, shifting responsibility to the victim i.e., victim blaming, and the overall weight attached to certain evidence regarding character or behavior by judges.

The Committee on the Elimination of Discrimination against Women (“CEDAW Committee”) in its General Recommendation No. 33 on women’s access to justice rightly noted that “stereotyping distorted perceptions and resulted in decisions based on preconceived beliefs and myths rather than relevant facts.” Further, the CEDAW Committee also recognized that judges frequently adopted rigid standards about what they considered to be ‘appropriate’ behavior for women and penalized those who did not conform to these notions, causing judges to misinterpret or even misapply laws. Stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the revictimization of complainants.

Judicial Stereotyping from the Lens of International Law

The Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) is an international legal treaty that contains express provisions on the issue of stereotyping. Article 2(f) and Article 5(a) of CEDAW require states to take all appropriate measures to modify or abolish laws, regulations, customs, and practices that constitute discrimination against women. Lastly, Article 10(c) of CEDAW provides for the elimination of any stereotyped concept of the roles of men and women at all levels.

Notably, in 2010, General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of CEDAW provided that the general obligation contained in the provision (pertaining to discrimination against women) must apply to all branches of government i.e., executive, legislative and judicial branches.

Another pertinent regional treaty with respect to judicial stereotyping is the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (also known as the Istanbul Convention) which, under Article 12(1), obligates parties to the Convention to take the necessary measures to “promote changes in the social and cultural patterns of behavior of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles for women and men.”

The Canadian Supreme Court in the seminal decision of R v. Seaboyer fittingly observed that, in the case of sexual offenses, the common law ‘enshrined’ prevailing mythology and stereotypes by formulating rules that made it extremely difficult for the complainant to establish her credibility and fend off inquiry and speculation regarding her ‘morality’ or ‘character.’

In Karen Tayag Vertido v. The Philippines the CEDAW Committee noted that stereotyping affected women’s right to a fair and just trial, and further emphasized that the judiciary must be cautious as not to create “inflexible standards” of what condition women and girls should be in or how they ought to have reacted or done when confronted with a situation of sexual assault. This was reaffirmed by the CEDAW Committee in V.K. v. Bulgaria in 2011, where the Committee criticized the judiciary’s “stereotyped and overly narrow concept of what constituted domestic violence.”

Judicial stereotyping is made particularly problematic and harmful owing to the fact that judges have the power to legitimize stereotypes through their rulings and judgments. Therefore, recognizing that such stereotypes are deeply entrenched not only in our society but also in our judicial system and actively working towards eradicating them is imperative.

Such stereotyping by the judiciary indicates the continued scrutiny women are subjected to regarding incidents relating to rape. Such scrutiny is through a decidedly male gaze with patriarchal underpinnings of what women’s conduct ought to be at all times, even while experiencing a deeply traumatic event such as sexual assault. This not only reinforces male privilege but also produces an image of what an ‘ideal’ rape victim ought to be like. In the Indian legal context, notions of chastity, honor, and aggressive resistance are most commonly brought up while courts deliberate upon whether the woman is a ‘genuine’ rape victim.

Judicial Stereotyping of Survivors of Sexual Assault by Courts in India – A Reprehensible Record

Some of the common stereotypes the Indian judicial system has relied upon during adjudication, sentencing, and even appeal of rape cases include questions of the woman’s virginity, her marital status, past sexual history, active resistance to the act of rape, her clothing, and consumption of alcohol, among others.

Among the most notable stereotypes regarding rape victims is the chastity of the woman and whether she can be deemed to be ‘virtuous’ or not. The Supreme Court of India has an unfortunate record of relying on such stereotypes while adjudicating cases involving sexual assault, which is evidenced by plenty of case law. For instance, in Musauddin Ahmed v. State of Assam, the Supreme Court, while allowing the appeal of the accused, referred to the victim, who was 14 years of age, as someone who is “used to sexual intercourse,” a “dissolute lady,” and “a woman of easy virtues.”

The Gauhati High Court in Md. Jakir Ali v. The State of Assam stated that a woman’s “virginity” is supposed to be her “most valued possession” and the only valid reaction to it being robbed must be visible signs of distress which should render the woman inconsolable.

Another aspect that reflects judicial stereotyping is the rigorous scrutiny of the victim’s conduct in the courts. It is often (wrongly) assumed by the courts that the ideal way of showing one’s lack of consent in an act of sexual intercourse is to vigorously resist it. In the infamous Mathura Case, which occurred in 1972, the Supreme Court agreed with the contention raised by the appellants, that the act of sexual intercourse had been a “peaceful affair” and held that the victim had had consensual sexual intercourse with the appellants. In 2017, in Mahmood Farooqui v. State (Govt of NCT of Delhi), the Delhi High Court stated that a feeble ‘no’ does not negate consent, holding that “a feeble no may mean a yes.” The Supreme Court, while allowing an appeal in a case of rape in 2016, made the observation that the victim seemed to be of a “submissive and consensual disposition” and that her conduct was “not at all consistent with those of an unwilling, terrified, and anguished victim of forcible intercourse.”

While these precedents do paint a bleak picture, in a significant move forward in the 2021 case of Aparna Bhat v. The State of Madhya Pradesh, the Supreme Court noted that judges played a significant role in ridding the justice system of harmful stereotypes. The Court noted that they also had a responsibility to base their decisions on law and facts in evidence, and not engage in gender stereotyping. The Court further went on to desist courts from expressing any stereotypical opinion, in words spoken during proceedings, or in the course of a judicial order, including stereotypes such as, “‘good’ women are sexually chaste; a woman consuming alcohol, smoking, etc., may justify unwelcome advances by men or ‘has asked for it;’ being alone at night or wearing certain clothes make women responsible for being attacked; lack of evidence of physical harm in sexual offense case leads to an inference of consent by the woman,” and others.

Concluding Remarks

One of the main inferences of such judicial stereotypes is the profound lack of empathy that the judicial system seems to have for women who have experienced sexual trauma. Going as per the biases displayed by the judiciary time and again, this begs the question of whether women survivors of sexual violence, who don’t fit the mold of a virtuous and distressed woman robbed of her prized possession of ‘chastity,’ deserve justice. Such comments by judges and the misogynistic ideas reflected in numerous judgments call for the urgent need for judicial sensitization at all levels, from the lowest courts to the Supreme Court. An understanding of harmful gender stereotypes and beliefs on gender roles needs to be inculcated in judges to ensure that survivors of sexual assault are not denied justice due to these ingrained biases among judges.

Along with judicial sensitization, there is also a need for more female judges in courts to combat the sexism that seems to inevitably make its way into the adjudication of sexual assault cases. However, it is important to remember that increase in female representation in the judicial system is not a catch-all panacea for gender-related stereotyping and sexism in the justice system. In 2021, a female judge of the Nagpur bench Bombay High Court acquitted a man accused of sexual assault for groping a child, holding that ‘skin-to-skin’ contact is necessary for the offense of sexual assault under Protection of Children from Sexual Offenses (POCSO) Act. The judgment was universally condemned and eventually reversed by the Supreme Court. However, the point to note here is that women are not immune to being affected by patriarchal notions and stereotypes and have often internalized misogyny to a great extent.

Further, reforms to outdated laws and recognition of reform in the larger criminal justice system right from the pre-trial stage, during the investigation, adjudication, sentencing, and appeal of sexual assault cases are required. All women and men deserve justice and deserve to be treated with dignity irrespective of whether they fit the image of what an ideal victim or survivor should look like in the eyes of the very system that is designed to protect them and grant them justice. While judges have the power to perpetuate gender stereotypes, ultimately, it is also judges themselves who possess the power to rid the system of these problematic views and debunk stereotypes.

Avanti Deshpande is a graduate of ILS Law College, Pune, India. Her research interests include human rights law, public international law, environmental law, and gender studies.

Supreme Court of India is by Subhashish Panigrahi licensed under the Creative Commons Attribution-Share Alike 4.0 International