Is it rape only when the victim screams and fights back? A Supreme Court verdict calls for a debate

A few hours past midnight on October 11, 1997, a domestic worker lodged a complaint of rape at the Sampangiramanagara police station in Bengaluru. She claimed a group of men had pulled her into an autorickshaw when she was on her way home and driven her to an auto garage, where they had taken turns to rape her. The men were not unknown to her. She said they often teased her when she walked home after work.

After the assault, she said, they bought her a plate of idlis. They also stole her jewellery – a pair of gold earrings and a gold thaali (mangalsutra).

Nineteen years later, the Supreme Court has found the woman’s account of being raped false, and ruled that a sex worker cannot allege rape if denied payment. It based its judgement on its examination of defence and prosecution witnesses and of material evidence in the case. And since the entirety of the Supreme Court’s judgement sets precedents, thus contributing to public discourse, this particular verdict is worth examining.

In its judgement, the Supreme Court made several comments about the complainant’s behaviour that have raised concern. These were:

1. That the complainant was sexually active, and possibly a sex worker. This was revealed during the trial by a witness the prosecution declared hostile but whose testimony was included in the judgement.

2. That she did not scream. On one occasion, the complainant talks about trying to peep out of the autorickshaw to see if she could call out for help. At this time, she said, one of the men slapped her and she was too afraid to scream again.

3. That she seemed too submissive and her conduct did not match what the judges felt “normal” behaviour should be under such circumstances. “Her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive and consensual disposition,” the verdict read. “From the nature of the exchanges between her and the accused persons, as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.”

Normal behaviour?

The Supreme Court also commented on the complainant’s behaviour after the incident, calling it “noticeably unusual”. It said, “Instead of hurrying back home in a distressed, humiliated and devastated state, she stayed back in and around the place of occurrence, enquired about the same from persons whom she claims to have met in the late hours of night, returned to the spot to identify the garage and even look at the broken glass bangles, discarded litter, etc."

It added, "According to her, she wandered around the place, and as disclosed by her in her evidence, to collect information so as to teach the accused persons a lesson. Her avengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised. Her confident movements alone past midnight, in that state are also out of the ordinary.”

What is the ordinary way in which a rape victim should behave, during and after the assault? What is the standard of normal against which such behaviour should be measured?

These questions regarding a rape complainant’s sexual history and her failure to shout and draw attention to herself as she is attacked bring back memories of another rape judgement from 30 years ago. In that case, a young woman, referred to as Mathura, was raped by two policemen in Maharashtra who were investigating her lover’s family.

A 30-year-old case

Mathura was a teenager when she fell in love with her employer’s nephew Ashok. When she confessed this love to her family and said that she and Ashok wanted to marry, her brother flew into a rage. He filed a police complaint alleging Ashok’s family had kidnapped Mathura and forced her into prostitution.

On March 26, 1972, Mathura was summoned to the police station to give her statement. She was accompanied by Ashok, his aunt and his brother. That night, after everybody’s statements had been recorded, constables Ganpat and Tukaram asked Mathura to stay back at the station, locked the doors, turned off the lights and raped her.

When Mathura emerged from the station, she was determined to make the policemen pay for what they had done. She decided to press charges against them. But at the very first stage of the trial, a district court acquitted the constables. Mathura appealed to the Bombay High Court, which reversed the lower court’s decision and sentenced Ganpat and Tukaram to a few years in jail. However, on a final appeal, the Supreme Court acquitted the accused again.

The judges gave three reasons for why they did not believe Mathura: she was silent inside the police station while she was being raped, she had no injuries on her body, and a medical test concluded she was “habituated to sexual intercourse”. The judges said consent could be of two categories – express and implied. And these three reasons were enough to conclude that Mathura’s consent was implied and that she had willingly had sex with the two policemen.

Why didn’t Mathura scream? What kind of rape leaves no injuries? Should a sexual assault that leaves no physical injuries be considered one at all? Mathura’s case is important because it tells us how one’s will can be bent without breaking one’s limbs.

In her first recounting of the incident, Mathura told Ashok, his aunt and his brother that the two constables had threatened to file a false case and imprison all of them if she did not do exactly as they said. So, they did not have to beat her into submission. She was already terrified.

Can this be described as consent? It took 10 years and widespread public outrage for the Supreme Court to finally understand why a teenaged Dalit girl could not fight off two adult upper-caste men in uniform while she was locked inside a dark police station. Eventually, it resulted in the law on sexual offences being amended. This was the first major amendment before the Criminal Law (Amendment) Act of 2013 that followed the gangrape and death of a physiotherapy student in Delhi in 2012.

Survival instincts

Most people, judges included, think of rape as a loud, violent, unmissable event where the victim must always emerge with bloody evidence of assault. But according to data from the National Crime Records Bureau, over 95% of sexual assault is committed by people known to their victims. It is not always an attack by a stranger on the street. It is usually someone victims open their doors to, someone they trust.

In addition, the fear of being overpowered or even killed affects the way victims respond to threats. The response may be vary vastly from the “normal” idea of how they should react – scream, call for help, do everything they can to avoid being raped.

In fact, many accounts of women who survived rape suggest they did not try to avoid being raped but tried to avoid a worse fate – being killed.

Three separate accounts of female rape survivors suggest there is no particular formula for how a victim should behave during or after the assault, but that almost all such behaviour is dictated by the victim’s will to survive.

In 1983, the writer Sohaila Abdulali wrote a piece about how she was gangraped as a 17-year-old. On a warm July afternoon, Abdulali was sitting with a friend on a hill in Mumbai when four men armed with a sickle came up to them to, as they later told her, “teach her a lesson, for being a whore”.

“They beat us, forced us to go up the mountain and kept us there for two hours. We were physically and psychologically abused, and, as darkness fell, we were separated, screaming, and they raped me, keeping Rashid hostage. If either of us resisted, the other would get hurt. This was an effective tactic. They could not decide whether or not to kill us. We did everything in our power to stay alive. My goal was to live and that was more important than anything else. I fought the attackers physically at first, and with words after I was pinned down.

Anger and shouting had no effect, so I began to babble rather crazily about love and compassion, I spoke of humanity and the fact that I was a human being, and so were they, deep inside. They were gentler after this, at least those who were not raping me at the moment. I told one of them that if he ensured neither Rashid nor I was killed, I would come back to meet him, the rapist, the next day. Those words cost me more than I can say, but two lives were in the balance. The only way I would ever have gone back there was with a very, very sharp instrument that would ensure that he never raped again.”

Abdulali’s words found parallels in other accounts – like those of the photo journalist who was raped in one of Mumbai’s abandoned mills in 2013, and of the young woman raped by her Uber taxi driver in Delhi in 2014.

Once these women assessed the situation they were in and realised that rape was inevitable, like Abdulali, they displayed uncommon resilience, resourcefulness and the will to survive, above all else. Both promised their attackers they would not tell anyone about what had happened. All three retained or collected evidence, which they took to the police as soon as they got out alive.

The domestic worker from Bengaluru, too, according to her testimony, returned to the place where she was raped to look for evidence she could use against her alleged assailants.

None of these accounts match what the Supreme Court seems to believe is normal in such a situation – a “distressed, humiliated and devastated state”. Maybe it is time that judges realise this.