Patriarchal Notions About A Woman's Right To Her Body & Sexual Autonomy Vitiate Rape Trials : Sr Adv Navroz Seervai

Fair trials in cases of rape and sexual assaults are most often derailed by subjective moral judgments rooted in patriarchal notions about the "ideal woman", said Navroz H. Seervai, Senior Advocate at the Bombay High Court, at a webinar organized by LiveLaw on the topic "Patriarchy, Misogyny & Sexual Assault: Women and the Courts".Moderated by Advocate at Bombay High Court, Gulnar Mistry, the webinar shed light on a string of judgments which had been rendered by various High Courts as well as the Supreme Court which cast aspersions on the character of a woman while deciding cases involving sexual assault or sexual harassment. "Through this conversation we will learn how patriarchal notions manifest themselves in cases of sexual assault and rapes, and we will see how this affects a woman's Constitutional rights", Mistry said at the outset, outlining the scope of the discussion. Before delving into the topic, Mistry addressed concerns raised by some about a man holding a discussion on the topic. She said she rejected the idea that women's issues were solely for women to discuss. "For too long, the difficult problems we have come to call 'women's issues' have been addressed largely by women. Anyone who is right thinking, fair minded, and who believes in making a better system and a better world, should be a part of the conversation. It is time that men started actively talking about systemic problems that women have been talking about for years. Not because a man's voice will give women's issues any legitimacy, but because it is important to address these issues through every conceivable avenue."Mistry contextualized the session with a reference to the recent Karnataka High Court judgement in Rakesh v. State of Karnataka wherein the learned Judge had allowed the pre-arrest bail application of the rape accused while noting the "unbecoming" conduct of an alleged rape victim who had slept after being "ravished". Though the comments had later been expunged after widespread criticism, they betrayed the patriarchal idea of how a woman should behave. Mistry referred to the case of Raja v. State of Karnataka (2016) where the Supreme Court held that the victim's conduct was unlike a victim of rape, and betrayed submissive and consensual disposition; she was also accustomed to sexual intercourse. Similar observations had been made by the Delhi High Court in the Mahmood Farooquiv. GNCTD case of 2017(which was later approved by the SC). "Rape is the only crime where a victim's past behavior, her actions during a crime and her reaction to it are all key factors. This is by no means an Indian problem", she said. Adjudication of rape trials are consistent with "rape myths" and "patriarchal ideas about how a woman views her self-worth", she added. In response to a question regarding the troublesome nature of value judgments, Seervai noted: "I think these value judgments and notions of gender are at the heart of the entire problem. With a deeply patriarchal judicial system judging women, this can be broken down into 4-5 areas and all of them are highly problematic. Judgments, despite legislative amendments in 2003 and 2013, betray patriarchal and moralistic values." Seervai noted that prior intimacy and familiarity with the accused is used by judges to invariably somehow disbelieve a victim, even in the face of overwhelming evidence. This is higher when the victim has had prior consensual sexual relations. "This patriarchal male-oriented notion of a woman's right to her body and sexual autonomy vitiate the case." With reference to the Raja case, Seervai stated that it was a particularly egregious case wherein the Supreme Court reversed the findings of the High Court by not only completely disregarding the legislative amendments post the Nirbhaya case, but by making a point to hold it against the victim that she was acquainted with the accused and did not mention it. Seervai also mentioned the case of Vikas Garg before the Punjab & Haryana High Court which involved a young student at OP Jindal University, Sonipat, who had been repeatedly raped by multiple fellow students as well as subjected to sexual blackmail. It was noted that the outrageous notions of consent had been used to belittle the victim, while the Court's heart bled for the rapists – "young men with bright future; it is a travesty if these young (male) minds rot in jails". On the topic of the Rakesh case, Seervai observed that the consumption of alcohol by a woman was enough for the judge to discount an accusation of rape and assault. "It's as if when a woman drinks, she deserves what she gets. You can almost hear they judge subliminally say, 'Who asked her to drink?" Drinking is a male reserve and if a woman steers into this reserve, she cannot blame a man and loses her protection." Seervai continued, "Equally ill-founded is the assumption that if a woman has alcohol...

Patriarchal Notions About A Woman's Right To Her Body & Sexual Autonomy Vitiate Rape Trials : Sr Adv Navroz Seervai

Radhika Roy

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