Victim Shaming Approach Of Courts Will Deter Women From Reporting Sexual Offences : Amicus Curiae Tells Supreme Court

The Supreme Court on Thursday (May 2) heard the suo motu case taken by it over a judgment of the Calcutta High Court in which certain remarks were made regarding the sexual conduct of adolescents, particularly teenage girls.The suo motu case titled "In Re : Right to Privacy of Adolescents" was listed before a bench comprising Justices Abhay S Oka and Ujjal Bhuyan.While overturning the conviction of a young man under the Protection of Children from Sexual Offences Act (POCSO Act) 2012, the High Court had cautioned girls in their adolescence to 'control their sexual urges' to prevent being deemed a 'loser' in the eyes of society “when she gives in to enjoy the sexual pleasure of hardly two minutes.The Supreme Court had earlier expressed disapproval of the broad comments made by the High Court which are unconnected with the merits of the appeal. It had appointed Senior Advocate Madhavi Divan as an amicus curiae to assist in the suo motu matter.During today's hearing, the Court expressed displeasure at the general trend of various Courts to indulge in "victim-shaming" and "stereotyping" victims of sexual assault. The bench opined that the rights of an individual should not be contingent upon the exercise of duties , especially in context of socially defined norms for women. Taking note of the perceived notion of 'self-worth' presently being misunderstood in the social and judicial context, Justice Bhuyan observed "Another problematic area in the line of reasoning that the court has adopted is that they have made the exercise of my right contingent upon my performing duty, if I don't perform my duty, I cannot exercise my rights." Justice Bhuyyan highlighted that an increasingly 'duty-centric' approach taken by courts in their logical reasoning comes in way of effective and guilt-free realisation of an individual's rights. These observations were made while referring to judicial pronouncements where rape survivors were often blamed for their conduct or clothing. The amicus added that it is this victim shaming and duty-centric mindset which weighs down women to come ahead and report any sexual crime that they have been a victim of. " This is also the reason why women don't report. They are so ashamed that they will be judged whether by their families, administration, court...there will be value judgments on their morality ....there is victim shaming, if you wear a skirt lower beyond a certain length, that will be expected that you will invite troubles for yourself." Ms Divan also submitted that the High Court made the objectionable comments without any social reasoning and the backing by empirical data. It was the contention that judges, without being well versed of social issues like sexual urges amongst adolescents,shouldn't assume the role of sociologists when deciding cases. "The reasoning is based on complete irrationality. One it is not based on facts, complete frolic....it is completely disconnected with reality and of course the basis of all that - there is no scientific no academic findings. Judges are not sociologists, they simply have to decide on the basis of the facts." She further stressed that a judicial mind has to work within the contours of 'constitutional morality', the values which the constitution imbibes and not let personal biases or subjectivity of the judge sway the decision-making process. " It's not unnatural, you cannot be completely separated from your own views, but at the same time those views must conform to the constitutional morality." In terms of the facts, the bench was informed that the minor had begotten a child from her relation with the accused partner at the age of 17 years and wished to reside with him since she has been ostracized and disowned by her parents and community at large. Ms Divan raised concerns about the future of the minor and her child considering that without any social support and the expenses of the child, the minor may be compelled to think that an abusive partner may be her only source of survival. Justice Oka weighed in to note that just as the Court in the Muzaffarnagar student slapping case asked the State of UP to take responsibility for the child and provide him Govt. Schooling, similarly in the present scenario, the State of West Bengal should be asked to step in and aid the minor for a secured future. Senior Advocate Mr Hufeza Ahmadi, appearing for the State of West Bengal, objected to the High Court issuing such directions and reasonings for acquittal under Article 226 and S. 482 CrPC (inherent powers to secure the ends of justice) while dealing with a stautory appeal against conviction. He flagged caution against the possibility of misusing powers under Article 226 and S. 482 to overlook statutory provisions and the settle principle of going by the book when it comes to examining criminal convictions. " These are statutory powers and appeals, they have to be dealt with strictly in terms of the statutory appeals. Now here there has been no...

Victim Shaming Approach Of Courts Will Deter Women From Reporting Sexual Offences : Amicus Curiae Tells Supreme Court

Anmol Kaur Bawa

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